Does Trump’s Involvement in the Cohen Payments Constitute an Impeachable Offense? Part II

Writing on Lawfare last week, we made the case that the growing investigation into campaign finance violations committed by Michael Cohen and now American Media Inc. (AMI), in which the president of the United States (“Individual 1”) figures as a co-conspirator, constitute an impeachable offense. We wrote that it was not a simple case, but that in any circumstance in which the president appears likely to have been a leader of a criminal conspiracy, the question of impeachment is directly presented and justifies formal inquiry. Our conclusion rested, importantly, on certain additional and material factors: that the offenses were committed in pursuit of the presidency, that the they continued into Donald Trump’s term in office and that as president he repeatedly lied about them to the public.

Since then, we’ve received a range of skeptical responses and have kept our eyes out for additional opposing views in the press. Our colleague Marty Lederman has written that the campaign finance offenses “pale[] in comparison” to President Trump’s other impeachable offenses “in terms of gravity, proof that he's unfit to serve, and, in Charles Black's words, whether it's so seriously threatening the order of political society … as to make his continuance in office ‘pestilent and dangerous.’” In Lederman’s view, these violations occupy a lower rung of importance than the central questions of collusion with Russia that the special counsel was charged with investigating. Somewhat along these lines, the constitutional scholar Philip Bobbitt, author of the recently-published supplement to Charles Black’s “Impeachment: A Handbook,” concludes that, standing alone, the campaign finance violations simply lack the "enormity" required for an impeachable offense.

Another set of concerns appears to be that the campaign finance violations never, and certainly not in this instance, could support impeachment. Writing in the New York Times, Charles Buskirk argues that allowing impeachment for campaign finance violations would render elections meaningless and worries that about a new precedent "lowering the bar for removing a president from office." Other commentators—including the president’s lawyer Rudy Giuliani—contend that the offenses to which Cohen pleaded guilty and for which AMI accepted responsibility as part of a non-prosecution agreement are not campaign finance violations at all. The hush money payments in question were made for personal purposes, according to this line of argument: They were not campaign-related and could not therefore have broken campaign finance law.

There are different objections that could be made to each of these arguments. But we are most interested in them in the aggregate as different reflections of a similarly constricted perspective on the impeachment process. It would be highly consequential—not only in the current moment, but as precedent to guide future generations—if the American legal and political system concludes that a president may be free of even inquiry into potential impeachment after federal prosecutors have named him as a central figure in a criminal conspiracy hatched to enhance his chances of winning his office and shown to have lied as president to cover it up, even as the conspiracy continued into his administration.

As Bobbitt has rightly pointed out, a judgment about the impeachability of conduct is fundamentally a judgment about constitutional law. It should go without saying, though it is said ad nauseam, that members of Congress making a judgment about impeachment are engaged in a fundamentally political choice. But the question of impeachment is guided by constitutional legal principles. And one such principle is that the president, charged with the faithful execution of the law, should not criminally violate it.

Giuliani has suggested that if a campaign finance violation is an impeachable offense, soon every criminal offense will be: "Nobody got killed, nobody got robbed… This was not a big crime," he said, and went on, "I think in two weeks they'll start with parking tickets that haven't been paid." The reference to impeachment for unpaid parking tickets is obviously facetious, but Giuliani appears to have been quite serious in suggesting that presidents may continue in office after committing crimes, so long as they are not too “big.” Before retreating under heavy criticism, Sen. Orrin Hatch upped the ante by arguing that because he was happy with the president’s performance in office, he didn’t care about crimes that Trump might have committed.

The suggestion the campaign finance violations as a whole can never satisfy the standard for an impeachable offense constitutes a significant step back from the Watergate precedent. The momentum toward the impeachment of Richard Nixon was not all about campaign finance, but the financing of the president's reelection effort was at least part of the story and received explicit mention in the articles of impeachment. Unlike Nixon, the initial campaign finance offense in Trump’s case took place before his presidency, but the violation and the cover-up—including Trump’s systematic lying about it—continued past his inauguration and well into the administration.

It is at this point that some critics of impeachment as a response to these offenses may wish to argue about proper interpretations of campaign finance law. But in this case, for all relevant purposes, the legal question has been settled. Cohen and AMI, represented by counsel, chose in the face of the evidence to admit their guilt. This should be the starting point for any discussion of whether these offenses are impeachable. The president would have every opportunity to present his defense in arguing against an impeachment inquiry, or over the course of one.

In a Fox interview, Sen. Lindsey Graham dismissed the possibility of impeachment charges over the campaign finance violations on the grounds that the alleged crimes constituted nothing more than “lying about sex.” Graham is not alone in making the argument that impeachment is precluded by the “personal” nature of the activities that the Stormy Daniels and Karen McDougal payments were meant to conceal—as opposed to “official” conduct relating directly to Trump’s abuse of his power as president.

But there is more than the purely personal at stake here. A presidential candidate who chooses illegal means to hide personally damaging information has opened himself up to being compromised, both as a candidate and after taking office. Both Michael Cohen and AMI, and maybe others, had significant leverage over Donald Trump by virtue of what they knew about his personal life and what they had done to help him cover it up. Moreover, it should not be minimized that this conduct was hidden from the voters while they were choosing their president. One could reasonably argue that impeachment would be ruled out if the election had taken place with Trump’s conduct with Daniels and McDougal known to the public—for the same reason that the Access Hollywood tape would not be properly considered in an impeachment inquiry.

So why the uneasiness over an impeachment rooted in private conduct, even if the conduct in fact goes well beyond the personal? As Graham himself noted, it’s impossible to avoid the comparison to the failed impeachment of Bill Clinton, and no doubt Democrats may be concerned that they cannot square their defense of Clinton with an attempt on these grounds to remove Trump from office. Impeachment over a matter so grubby and distasteful may seem also to demean the grandeur both of the office of the president and of the act of impeachment itself. Seen from another angle, singling out the president’s personal behavior as a matter of “high crimes and misdemeanors” uncomfortably magnifies the indiscretions of ordinary citizens. Recall the discussion around the Access Hollywood tape: Trump’s defenders quickly began arguing that “everyone” had made comments similar to the candidate’s. Our colleague Benjamin Wittes warns that the “moral value” of an impeachment effort must be weighed against “martyring the president before his supporters.

Yet while the "personal" character of these violations may well complicate the task of establishing the legitimacy of an inquiry, it does not follow that the president's role in a criminal election law conspiracy is appropriately overlooked in judging the constitutional standards for impeachment. At most, it suggests the importance of Congress’s dealing soberly with this issue—step-by-step, beginning with inquiry and with due care. Whether Congress treats the prosecution and investigation in question as material fit for examination in an impeachment inquiry will determine how, in the future, the norms governing initiation of the impeachment process are construed.

It is reasonable to set the bar for impeachment high, but it matters just how high. The country has arrived at the point where presidents have it both ways: They have immunity from indictment while in office, consistent with opinions issued by the Office of Legal Counsel, and comprehensive protection under an extremely high standard for impeachment. Impeachment is routinely pictured as constitutional armageddon—something that must be avoided if possible at all costs, to spare the country from constitutional crisis.

This view has resulted in unduly restrictive interpretations of the scope of impeachment that, for example, rule out liability for “maladministration” even in cases of gross neglect of office and systematic violations of the oath of office. In a recent study published by the Cato Institute, Gene Healy maintains that this position is overstated and a misreading of constitutional history. Other commentators, such as Wittes and Jane Chong, have made similar arguments. This continues to be a minority position, though the Trump administration may mark the moment when it receives most closer attention.

It is easy to detect in some of these arguments for the high bar less a constitutional position than a prudential concern. Perhaps it is politically wiser for opponents of the president to just wait for the next, inevitable revelations, which may expose violations more serious or more compelling than the campaign finance investigation. Along these lines, soon-to-be Speaker of the House Nancy Pelosi has cautioned her caucus against hasty impeachment, arguing: “We must wait to see the entire picture and then engage the American people about how we go forward as a nation. We must protect the integrity of the Mueller investigation, so that the American people can get the full truth.” A similar instinct may be animating the suggestion—newly popular in the wake of the Cohen plea—that the Justice Department should rethink its bar against indictment of a sitting president. Mueller, known for his by-the-book nature, seems to us unlikely to pursue this approach. But some may see the advantage of promising proof beyond a reasonable doubt provided by the executive branch under widely agreed-upon legal standards, rather than the necessarily more contested standards by which the legislature weights the commission of “high crimes and misdemeanors.”

These concerns about impeachment based on a criminal campaign finance conspiracy are fair enough: We concluded our first piece with the prediction that the House would act on the campaign finances only in conjunction with the review of other impeachable offenses. But it is important to remain clear about the significance of the Cohen/AMI investigation. The issue is whether Congress should eventually and formally inquire into them, the first step in the sequence that may lead to hearings and a vote on impeachment. Another way of asking the question is: If, however unlikely, this is all that ever did surface about presidential misconduct, would it warrant an inquiry? We believe that it would.

For Congress to disregard or minimize these criminal offenses is to establish a record, sure to be cited in the future, that an impeachment inquiry is not warranted for this level of presidential misconduct: a president’s leading role in a criminal conspiracy that he directed to win office, that extended into his term, and about which he lied to the American public. The result would be that this president—who is constantly lowering the bar for acceptable conduct—can count on a high constitutional standard to escape congressional scrutiny of his fitness to hold office.