Donald Trump’s get out of jail card could sentence the US, writes James Ball.
From this side of the Atlantic, it can feel like any day now Donald Trump will be moving from 1600 Pennsylvania Avenue to the confines of a jail cell.
The walls certainly seem to be closing in on the embattled president. Last week his former lawyer Michael Cohen – who is on his way to jail – said under oath that Trump was a ‘racist’ and a ‘con man’, and showed a Congressional committee a cheque signed by Donald Trump during his time as president reimbursing him for a hush money payment to Stormy Daniels, a porn performer he had slept with – an apparent prima facie breach of campaigning funding rules.
So far, so bad: let’s not forget that president Bill Clinton faced impeachment proceedings in the 1990s for far less than that. But that’s only the beginning of Trump’s woes. Just days before Cohen’s testimony, special counsel Robert Mueller submitted an 850+ page sentencing memo for Paul Manafort, Trump’s former campaign chair, who is also going to jail.
According to reports, Trump is also facing legal proceedings from the Southern District of New York – against which he would be unable to pardon himself as president, as that power only covers federal cases, not state ones. And he faces new political and legal problems over his ties with Russia, not only with the publication of Mueller’s final report, but simply over what’s in the public domain.
When trying to deny collusion with Russia, it is not helpful when there is public video footage of you as a candidate saying at the podium: ‘Russia, if you’re listening, I hope you’re able to find the 30,000 [Hillary Clinton] emails that are missing. I think you will probably be rewarded mightily by our press.’
It is also not helpful for your own son to have publicly released transcripts of his Twitter direct messages with @wikileaks – which published emails from Clinton’s campaign hacked by Russian intelligence officials – discussing the email hacks. Especially when that Twitter account is typically operated by Julian Assange himself. And even more especially when your son also took a meeting in Trump Tower with a Russian lawyer tied to the Kremlin discussing ‘dirt’ on Clinton.
All of that is without mentioning any of the dozen or so others in Trump’s orbit accused or convicted of crimes, or any of his own questionable business affairs, many of which are being probed by various authorities.
You do not need to be Sherlock Holmes to piece this stuff together. You barely need to be the Keystone Cops. It is easy and simple for anyone to see that the Donald Trump presidency isn’t just an attack on the USA’s norms, or its decency, or its culture – it is a straightforward attack on its very laws. And such enterprises usually end in jail times for most of the people involved.
That might yet be how the Donald Trump saga ends. It’s certainly how it will end for Cohen, Manafort, and many of the other hangers-on close to the USA’s 45th president. But we are a long way from knowing how the story will conclude for the man himself.
That’s because Donald Trump has one hell of a get-out-of-jail-free card.
In fact, he has several. The first is that Trump has the power of presidential pardon, granted to him by the constitution. It is an open legal question as to whether such powers can be used by a president to pardon himself (it does not seem to be a question the people who drafted the constitution thought would arise), but given Trump has already managed to appoint two loyalists to the Supreme Court, the odds would seem in his favour.
The ability to pardon himself or his family clearly plays in Trump’s favour, but would damage US political norms immeasurably, and may even provoke a Republican backlash.
Importantly, it would not give Trump or his associates any protection against any potential crimes committed at the state level, meaning various attorneys general could look to bring their own criminal actions against his associates – and even, likely once his presidency was over – Trump himself, if they were feeling bold.
The most immediate protection for Trump is that Congressional Republicans still appear to solidly have his back. Trump is facing a much more challenging second two years of his first term thanks to the Grand Old Party losing the House – the USA’s equivalent to our House of Commons.
This hands the chairmanships of all the House’s committees – which have extensive investigatory powers – to the Democrats, who are now able to hold public hearings, subpoena evidence and testimony, and more.
But that’s about all they can do: uncover evidence and hope it moves public opinion. The only way to use illegal or immoral conduct to remove a president – the only court which can ‘convict’ him in this way – is a political one, relying on the House and the Senate to remove the president.
The Democrats are easily able to start impeachment proceedings, if they so wish: all they need to do this is a simple majority of the House, and they have that without needing any Republican votes. However, to secure a conviction in impeachment proceedings requires a two-thirds majority of the 100-strong Senate, meaning nearly 20 Republicans and every Democrat would have to vote to impeach the president.
The odds of reaching these numbers are effectively zero: impeachment is a non-starter.
Trump’s final and greatest get-out-of-jail free card helps explain his second – and is also perhaps the worst news for liberals in the USA and across the world. Trump is able to get away with a lot of what he’s doing because he remains surprisingly popular.
Through his first term, Trump has had historically low approval ratings for a new president, generally well below his immediate predecessor Barack Obama and other modern presidents.
Trump has been insulated from his low ratings by much, much stronger support from his Republican base – the people all the congressmen and Senators rely upon to win primary challenges, and for much of their activist and fundraising base. Trump’s support among Republicans is sky-high, reaching around 90% in recent polls. For most of his first term, Trump has been popular among ‘his’ people, and historically unpopular elsewhere.
That’s no longer the case: Trump’s approval rating in recent polls is hovering around 46%. That might not sound spectacular – it isn’t – but it is roughly where Obama was at this point in his presidency. And, as you may recall, just under two years after that point, Obama easily secured re-election against Mitt Romney.
For much of the last two years, when a British liberal meets their American counterpart, a contest of sorts has ensued: which is worse, Trump or Brexit? The American can point to all the drama, the overt corruption, the deliberate human cruelty at the border. Aha, the Brit can counter: look at the lies here, too. Look at the chaos. Look at the economic disaster this could be. And then the trump card – Trump is for four years. Brexit is for life.
That need no longer be the case: based on the polling at the moment, the odds are perhaps around 50/50 that a Trump presidency could continue right the way through to January 2025. Most incumbent presidents who seek a second term secure it: 20 men have tried to get a second term since 1900, and 15 of them managed it.
Trump goes into 2020 with the advantage, as the favourite, and with polling versus a generic Democrat that suggests the race will be close and tough. Let’s not forget that despite some clear signs of renewal and new ideas, the Democratic party remains fractious, and with few clear front-runners and leaders. The next presidential race is wide open.
Yes, there is a chance Trump is staring at jail time. But there’s a much higher chance that it’s the rest of us who are staring down another four-year sentence.