By Fred Benson
In case we hadn’t noticed, President Donald Trump is winning. From a low of 35 percent in November 2017, his approval rating has grown steadily to 45 percent along with a concomitant reduction in his disapproval rating. On the investigation of possible Russian interference in the 2016 U.S. election, confidence in Special Counsel Robert Mueller’s handling of the probe among Republicans has dropped by almost half, offset partially by a smaller increase in support from Democrats.
On net, Mueller is losing ground with the public. As evidence that citizens are also tiring of the daily media bombardment with details of the allegations involving the president, pressure to end the investigation is edging towards 50 percent.
The outcome of this investigation boils down to three determinations. First, if senior advisers to the Trump campaign are formally charged with felonies tied to Russia’s involvement in the election, and there is tangible evidence that candidate Trump was aware of those actions, he could be charged as an unindicted co-conspirator, as was President Richard Nixon in the Watergate scandal. Second, if the firing of FBI Director James Comey is found to have been obstruction of justice, pressure for impeachment proceedings would heighten. Third, if Trump business associates and other personal advisers are charged with major financial crimes and, again, if Trump was part of those activities, that also could turn up the heat.
But even if these charges are brought, serious ancillary questions are key to Trump’s future in office. Having mastered control of social media, Trump has cowed congressional Republicans into either becoming sycophantic followers of his dictates or remaining silent. He has, not so quietly, let it be known that any congressional Republicans who criticize him publically could well find a candidate more to his liking in their primary races.
Looking ahead to the outcome of the November midterm elections, if Republicans retain control of both houses, impeachment proceedings will occur only if GOP members, under extreme constituent pressure, abandon their collective affinity for their party leader. With a Democratic House and Republican Senate, the result could be a repeat of the Clinton situation in which he was indicted by the House but not convicted by the Senate. Obviously, if both houses convert to Democratic control, impeachment proceedings will become more likely, but only if the underlying charges are truly offensive.
Another important question is whether or not the president can be indicted for any crime. Article 1, section 3 of the U.S. Constitution addresses that question: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.”
While legal minds debate the intent of these seemingly contradictory words, the Justice Department has determined that a sitting president may not be indicted but can be subject to legal action once out of office. Those who suggest that a sitting president can be indicted argue that a president who committed a serious criminal act would not enjoy the protection provided by this constitutional provision.
On that basis, the statement by Trump lawyer Rudy Giuliani that the president could have shot Comey and not been indicted is preposterous. No one, not even a sitting president, is above the law.
Some Trump supporters remain convinced that this whole Russia collusion issue is a massive hoax and that there is no evidence whatsoever of any complicity by the president. Further, they believe Mueller investigators strayed far beyond the appropriate scope of the investigation when they meddled in Trump’s private business dealings that took place long before he was elected.
Trump critics, on the other hand, believe that the one-year investigation, which has resulted in a number of indictments and guilty pleas of Trump associates, certainly will result in actionable determinations against the president.
Somewhere between these two views lies reality. There is no doubt that some Trump underlings and associates will be punished for lying to the FBI. Even though the president told NBC newscaster Lester Holt that he fired Comey to end the Russia probe, there is some doubt that Trump could be found guilty of obstructing justice, because proving actual intent remains such a high hurdle. The allegations of financial misconduct in Trump’s business dealings over a long period of time may be embarrassing to the president and his family but may not necessarily establish criminal culpability.
Coupling these doubts with the Justice Department’s determination that a sitting president cannot be indicted could mean that Trump will emerge from this investigatory process with some bumps and bruises but remain in office. If so, he continues his winning streak.
Fred Benson is a resident of Mount Desert and publishes Capitol Commentary, an independent political newsletter.