A Decisive Moment Of Change

This week’s legal developments in the Manafort and Cohen cases mark the moment when the whole Trump matter will move largely from the legal domain to the political domain.

We already knew that Cohen paid (and was reimbursed for) hush money to suppress potentially damaging information just before the election. What wasn’t known until Tuesday is that his actions were directed by Trump. As Cohen’s attorney rightly noted, if it was a crime for Michael Cohen, it must, by definition, be a crime for the President, as well.

That raises front and center the matter of the question of an indictment and trial of a sitting President. There is no clear black letter law that prohibits such an indictment. However, the Justice Department has had a policy for about 50 years that it does not believe such a process would be proper, for fear that the President could become so beleaguered by overeager lawyers and citizens that he/she could not perform adequately as President.

That view has something to be said for it, despite the fact that it runs head-on into the basic Constitutional point that no one—including a President—can or should be above the law.

The Justice Department’s view embraces the point that if a President becomes an un-indicted co-conspirator, that could automatically be the basis for the House of Representatives to take up the question of whether the issue rises to the level of ‘high crimes or misdemeanors,’ which is the sole Constitutional standard for impeachment by the House and conviction by the Senate.

All of the above works perfectly well IF the House and the Senate have the brains and gumption to put the Country’s interests ahead of Party and any members’ risks of reelection.

But, if the Congress fails to perform its Constitutional duties (as appears likely in this case, at least before November) then the Special Counsel should not be constrained from indicting and trying that President without regard to political considerations.

If such a trial found such a President guilty, the special counsel could raise the legal question before the Supreme Court that a high crime and misdemeanor had been committed and the Congress had failed in its duty.  At that point the Supreme Court would surely be on the spot and the Country would see what they are made of when they are beyond fear and favor. If that does not work??

It is hard to predict what the public would think of such a situation. But it seems quite clear to me that our populace is not enamored of corrupt leaders, and quite likely that a stand-off with a convicted President and a recalcitrant Congress on one side against the special counsel (and public opinion) would leave the country a few inches away from either despotism or revolution.

At that point somewhere – somehow – wise and/or strong heads and hearts will emerge and lead the way into the future.

Luck to us all!


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