In a country that needs to laugh to keep from crying, a Saturday Night Live sketch this last weekend hit our national funny bone with a ballpeen hammer. Called “Them Trumps,” it asked “What if Trump was black?’ and presented President Darius Trump with wife Malika and their children Darius Junior and L’evanka. Two minutes later, the Empire-inspired conniving, adulterous, amoral Trump was both indicted and impeached.
That, of course, is exactly how it would go. Barack Obama was the most morally upright man to occupy the Oval Office since at least Eisenhower, and he was called a foreign-born Muslim terrorist supporter and the First Lady an ape.
The part of white America that lost its collective mind over a black president then elected a treasonous orange racist sociopath, who cheated on both everyone he ever did business with and all three wives while conspiring with the Kremlin and lying, on average, 247 times per day. But he will never be impeached and convicted, because it would take all the Democrats and 20 members of the White People’s Nationalist Party, formerly known as the GOP, in the U.S. Senate to find him guilty.
Impeachment, though, is not the only solution. Mueller, or federal prosecutors in New York, could attempt to indict Trump. The pile of court filings last week from Special Prosecutor Robert Mueller and prosecutors from the Southern District of New York implicate Trump in two federal felonies and point toward eventual charges of both obstruction of justice and conspiring with a hostile foreign power. Trump supporters maintain a president can’t be indicted but, like a lot of what they say, that may not be the truth.
In laying out the case against former Trump lawyer Michael Cohen, the New York feds concluded Cohen paid two porn stars to keep quiet about their affairs with Trump “in cooperation with and at the direction of Individual 1.” The unnamed Individual 1 in the court filings is Trump.
In one case, Trump apparently directed a criminal conspiracy to violate federal campaign finance laws by paying off Stormy Daniels. In the other, the money to pay off and silence porn actress Karen McDougal came from the Trump Organization, making Trump in that case potentially liable for both criminal conspiracy and money laundering.
In a separate filing in the Cohen case from the special prosecutor, Mueller said it was Trump’s idea to have Cohen try to contact the Russians about his presidential campaign in September 2015. In court filings in the case of former campaign manager Paul Manafort, Mueller hinted that conspiracy and suborning perjury charges against Trump might be possible, given that Manafort had violated his plea deal with Mueller by lying and by being in constant contact with Trump’s lawyers.
In the Manafort filings, Mueller also noted that Manafort has lied repeatedly in written responses, which Mueller believes are more serious than lying in person because the lies in written answers don’t come “spontaneously from a line of examination” but from premeditation. This is important because since Trump refused to sit and be questioned by Mueller, his responses are … in writing.
Trump’s minions know he would never be convicted by a complicit GOP Senate, so they’re pre-emptively claiming Trump skates, no matter what happens, because a sitting president of the United States cannot be indicted. Except that it seems he can.
The U.S. Constitution does not say anything about indicting a president. The entire theory of a non-indictable chief executive comes from two memos from the Justice Department’s Office of Legal Counsel. One was written by Richard Nixon’s administration in 1973, as Watergate threatened to sink his presidency, while the other was written by Bill Clinton’s Justice Department in 2000, right after the Senate failed to convict him in his impeachment trial. And that’s it.
The U.S. Supreme Court has never ruled on the issue. The closest it came was in the United States v Richard Nixon in 1974, and Bill Clinton v Paula Jones in 1997. In both cases, the court ruled a sitting president is subject to the legal system, just like the rest of us. But both of those cases involved subpoenas for tapes and documents, which is an entirely different thing than hauling a president into court on charges.
But the reasoning in both cases – that a sitting president “of course” is subject to the same legal system as other Americans – would seem to point toward allowing an indictment, since grand juries and indictments are integral parts of that legal system. A final reading on that would have to come from the Supreme Court. Trump’s refuseniks, led by Rudy Giuliani, take it even further. They argue that not only can a president not be indicted, a president cannot be subpoenaed to give grand jury testimony.
Back on May 1, the Washington Post reported on a March 5 meeting between Mueller and Trump’s attorneys. According to four different sources, Mueller told Trump’s legal team that he was prepared to issue a subpoena for Trump to talk to a grand jury if all else fails. That sent Team Trump into what the Post described as “turmoil,” indicating that Trump’s lawyers weren’t so sure that a president can dodge a subpoena for grand jury testimony.
It might very well be that the Supreme Court’s five conservative justices, among them two Trump appointees, would rule that a president is above the law, at least when it comes to indictments and subpoenas. In 1982, the High Court ruled in Nixon v Fitzgerald that a sitting president is immune from civil suits for anything done while in office. But as then-Chief Justice Warren Burger made clear, the case only involves civil, not criminal, conduct.
That we are even arguing about this shows the depths to which the Trump presidency has sunk, and the seriousness of the crimes – conspiracy, witness tampering, perjury, money laundering – with which Trump could be charged.
Trump likes to think he’s above the law. Let’s see if prosecutors and the federal courts believe him.
Charles Jaco is a journalist, author, and activist. Follow him on Twitter at @charlesjaco1.