In June, US president Donald Trump claimed "an absolute right" to pardon himself. What was then a matter of scholarly conjecture is now a question of the sharpest real-world relevance.
As of Tuesday, the dies horribilis of his presidency, Trump finds the criminal law lapping at the edges of his office. In separate trials along the eastern seaboard, Michael Cohen, his old "fix-it guy", pleaded guilty to numerous charges, while Paul Manafort, his one-time campaign chief, was convicted of others.
From the blur of financial sleaze – bank fraud, tax evasion – what stands out is Cohen’s confession, under oath, to the violation of campaign finance law to pay off two women at the behest of Trump. To repeat, the president’s former lawyer appears to be implicating him in a federal crime.
The threat posed by Manafort is less direct. The charges against him were by-products of Robert Mueller’s probe into Russian meddling in the 2016 election. The convictions do not concern that meddling – as Trump was entitled to point out – but they speak to the rigour of the special counsel’s work. He should claw back some credibility after months of all too effective sullying by the president.
Anti-talent for recruitment
The first and second members of Congress to endorse Trump's presidential bid have been indicted. His chosen administrator of the Environmental Protection Agency quit after stories of baroque extravagance on the public nickel. His first national security adviser lied to the Federal Bureau of Investigation about his contacts with the Russian state. The kindest interpretation is that Trump has a sort of anti-talent for recruitment.
Another interpretation is that criminality extends to the president himself, and that law enforcement is about to root it out, holding executive power to account in a way that politicians have failed to do. If so, America, the land of the celebrity perp walk, will have upheld the rule of law against elevated personage once again.
It is a touching thought, but also a misreading of what is doable under law. In all likelihood, Trump’s future will be settled by politics. The balance of legal opinion suggests that a sitting president cannot be indicted. Few expect Mueller to test that proposition by indicting Trump.
If he indeed demurs, impeachment becomes the next best way to winkle the president out of office. The process is more political than legal. The constitution requires a bare majority of the House of Representatives to impeach. If the Democrats win the House in November's midterm elections, this might happen. But the constitution then requires a two-thirds majority of the Senate for the president's actual removal. This is much harder to envisage. Without it, Trump could emulate his predecessors Andrew Johnson and Bill Clinton by governing on, impeached but intact.
As the Harvard law professor Alan Dershowitz reminds us, there is no theoretical limit to the number or severity of crimes a president can commit, as long as the Senate falls just one vote short of the supermajority. The founders did not leave many things to the vagaries of politics, but the president's right to govern is one of them.
Court of public opinion
Which leaves us with the most political of all forms of presidential defenestration. The election of 2020. Will legal and ethical stains cost Trump in what Alger Hiss, that target of McCarthyism, called the “court of public opinion”?
Counting against him is the sheer number of scandals. True, no postwar president has lost an election because of sleaze (even if Gerald Ford's pardon of his predecessor, Richard Nixon, did not help him in 1976). But then no postwar president has been quite so mired in the stuff quite so soon. He still has more than two years in which to attract more suspicions of wrongdoing.
Counting in Trump’s favour is the fact that he never relied on a good name to win votes. Just because he promised to “drain the swamp” does not mean that people voted for him on that basis. He promised many things, of which the cleansing of a venal Washington came some way below the restoration of pride to the American worker. As long as he keeps up his stream of tweetable “achievements” on trade and immigration, his base seems inclined to forgive a lot. No one ever mistook him for a Narendra Modi-style ascetic. No scales are falling from eyes.
Whatever the answer, this is the question. The seriousness with which the US takes the application of its laws cannot fail to wow a foreigner. But Trump’s destiny will probably come down to politics. The trouble is that he is confoundingly good at it. – copyright the financial times limited 2018