Trump Can’t Be Put on Trial, but He Can Be Impeached

The president is not subject to everyday justice. For that reason, despite the evidence that his conduct was criminal during the 2016 election, he will not be put on trial. But he can be subjected to an impeachment trial. That depends on what happens in the next midterm elections on Nov. 6, in which the House of Representatives could be completely replaced, along with a third of the Senate. If the Democrats obtain a majority in the House of Representatives, the possibility of impeachment casts a great shadow over the last two years of Donald Trump’s first four-year term.

Tuesday, Aug. 18, was a black day for Trump. Two close collaborators, Michael Cohen, his attorney and fixer, and Paul Manafort, chairman of his election campaign, were found guilty.

Cohen clearly slung mud at Trump: “I acted in this way… with the principal idea of influencing the election,” adding, “in the summer of 2016, in coordination with, and under the direction of a candidate for federal office, I and the president of a media campaign, at the request of the candidate, worked together to prevent an individual from publicly disseminating information that would be damaging to the candidate and the campaign.”* In August 2016, a Playboy model, who had sold the rights to her story to a tabloid, received $150,000 for those rights. A few weeks before the election, the porn star known as Stormy Daniels received a payment of $130,000.

Presidential immunity in the United States has been a complex theme to work out. In 1973, Assistant Attorney General Robert G. Dixon, who was in charge of the Office of Legal Counsel in the Department of Justice, issued a memorandum, which was released one month before the well-known “Saturday night massacre,” the famous Oct. 20 on which then-President Richard Nixon ordered the firing of the independent special prosecutor, Archibald Cox.

In his memorandum, Dixon concluded that the president should not be put on trial. Such an occurrence would “hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” Without a doubt, the process would stain the office that is a symbol and guide for the nation, and be “a politically and constitutionally traumatic event” for the country.

Two decades later, in 1998, when Bill Clinton was being investigated for his exploits with Monica Lewinsky, the Dixon memorandum of 1973 was reaffirmed: The president cannot be put on trial.

In the same vein, Trump will not be put on trial, despite evidence of his conduct during the campaign.

Trump and his administration have vehemently attacked the conduct of Special Counsel Robert Mueller regarding Russian involvement in the presidential election, describing it as nothing more than a witch hunt. But the consensus in Washington is that Cohen and Manafort’s sentences complicate Trump’s firing of Mueller. In addition, a recent Fox News poll reveals that 59 percent of voters approve of the investigation, which represents an 11 percent gain over last month.

Given that an indictment isn’t viable, Trump’s future will be defined by the next midterm elections.

An impeachment trial begins in the House of Representatives. A legislator must introduce a resolution to put the president on trial for charges that involve “treason, bribery, and other high crimes or misdemeanors.” In such a case, the House examines the charges and votes in favor of, or against, a trial. If the vote is favorable, the process becomes a trial in the Senate, over which the Chief Justice of the Supreme Court presides. At the end of the trial, the Senate votes to decide the future of the president. For a president to be removed, a two-thirds majority of qualified votes is required. If the president is removed, the vice president becomes president.

For that scenario to be viable, the Democrats must triumph in the next midterm elections. The Republicans have the majority in both houses. In the House of Representatives, the Republicans have an advantage of 36 seats, and in the Senate, of just one.

The polls are clear. Both Republicans and Democrats have enormous incentives. The former, because Trump, despite all his troubles and criminal acts, has done everything and more that his base wants. The Democrats, because they are well aware that Trump is finishing off all of Barack Obama’s accomplishments, such as the right to universal health care, energy efficiency and the framework of the United States’ relationship to the world.

It looks like it will be difficult for the Democrats to triumph. Not impossible. Generally, Democrats participate less than Republicans. Still, the loathing that Trump inspires makes me feel optimistic.

*Editor’s note: Although accurately translated, the source of this quote could not be independently verified.