Insight: Has Teflon President Trump come unstuck?

President Donald Trump takes the stage at a rally in support of the Senate candidacy of West Virginia's Attorney General Patrick Morrisey, last week. Picture: Craig Hudson/Charleston Gazette-Mail via AP
President Donald Trump takes the stage at a rally in support of the Senate candidacy of West Virginia's Attorney General Patrick Morrisey, last week. Picture: Craig Hudson/Charleston Gazette-Mail via AP
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On the afternoon of 27 August, 1998, amid mounting calls for a congressional impeachment inquiry against Bill Clinton for lying under oath and attempting to obstruct justice, a face familiar to millions of Americans appeared on cable news to denounce the “terrible” way in which the 42nd president of the United States had handled the situation.

“I don’t think he could have done any worse than what’s happened,” he said, “It’s such an embarrassment to him. It’s a terrible embarrassment. He’s really been a Teflon guy, but that Teflon has exploded all over the place.”

The interviewee had no background in the choleric battleground of US politics, but had, at the very least, shown the chops for combating scandal. Having been accused of unscrupulous real estate dealings, racial discrimination, and alleged marital rape, Donald Trump could speak from a position of considerable experience.

Whether in isolation or cumulatively, none of those scandals impacted on his business career. Nor, as it turns out, would they curb his sudden ambition to sit behind the English oak Resolute desk where Clinton himself once held court.

But nearly two decades to the day since Trump gave that CNBC interview, he now finds himself in the Oval Office, staring down a bipartite threat to his presidency after the most politically damaging day of his administration’s 19 month-long tenure.

It took just a few minutes on Tuesday for word to reach the White House that two former members of Trump’s inner circle had fallen.

Michael Cohen, a longstanding personal lawyer, troubleshooter and consigliore of Trump, pleaded guilty in New York to eight charges, including two that alleged that payments to two women – adult film actress, Stormy Daniels, and former Playboy model, Karen McDougal – who claimed to have had affairs with the 72-year-old, were made “at the direction” of the then Republican nominee “for the principal purpose of influencing the election”.

Then, moments later, Paul Manafort, Trump’s former campaign manager, was found guilty in Virginia of eight tax and bank fraud charges which carry a maximum jail sentence of 80 years.

The resultant shockwaves of Trump’s dies horribilis laid bare how, were anyone in doubt, Robert Mueller’s special counsel investigation is no mere “witch hunt”, and shifted the axis from Russia to what amounts to an old-fashioned sex and hush money scandal.

The question of whether Trump might face impeachment or possible indictment has intensified in the days since, with many of his critics taking the view that the sheer damage inflicted by Cohen means the beginning of the end is now in sight.

“We’re in a constitutional maelstrom, we’re in a Watergate moment,” said Richard Blumenthal, the Democratic senator for Connecticut. “The White House is increasingly looking like a criminal enterprise.”

Yet the inference that Trump will, like Richard Nixon before him, be brought down as a result is misguided. It betrays a combination of wishful thinking, a disdain for the complexity of the legislature and an ignorance of the position of strength Trump – and his party – currently enjoy.

Indeed, the legal and political case against Trump is not as cut and dried as the likes of Blumenthal might believe, despite the undoubted damage caused by Cohen in particular.

His declaration, made under oath, marked the first suggestion by a one-time member of Trump’s clique that the president may have committed a crime – specifically, a violation of federal campaign finance laws.

Yet there is little chance that Cohen’s admissions and accusations, extraordinary though they may be, will bring Trump before a criminal court.

The US justice department has long taken the view that sitting presidents cannot be subject to criminal prosecution, with guidelines advising that if they were, it would “unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions”.

The US constitution itself is imprecise on the issue, and the Supreme Court has not ruled on whether the incumbent of the Oval Office can be charged with a crime. The balance of opinion, however, rests with the justice department’s stance.

“Trump is clearly guilty of violating campaign finance laws and also guilty of federal conspiracy as well, because he agreed with Cohen, and possibly others, on a plan to violate federal law,” said Jens David Ohlin, vice dean and professor of law at the New York-based Cornell Law School.

“Normally he would be indicted right away. But that won’t happen only because he’s the president.”

The same restrictions apply to Mueller, the special counsel leading the investigation into Russian interference in the 2016 election.

The convictions of Cohen and Manafort demonstrate his team’s expertise in unrooting financial fraud and corruption. Even so, should Mueller feel he has a strong enough case against Trump, he will have to consider the myriad legal barriers surrounding an indictment; Trump’s lawyer, Rudy Giuliani, may not be the most reliable witness, but he claimed in May that Mueller’s team told Trump’s attorneys they would abide by the justice department protocols, in situ since the Nixon era.

If the legal avenue is closed off, what might come next? The most obvious answer is impeachment, a course of action faced by only three former presidents – Clinton, Nixon, and Andrew Johnson. Whether that is a viable pathway will depend largely on the results of November’s midterm elections.

The genesis of impeachment lies with the House Judiciary Committee, tasked with holding federal officials to account. If inclined to hold hearings, it can prepare formal written charges – known as articles of impeachment – which must then be approved by a majority of its members.

The next stage of the process requires a majority in the House of Representatives – the lower house of Congress – to approve the charges. As things stand, the Republicans command a majority in the House, holding 238 seats to the Democrats’ 192.

With the fate of 435 seats to be decided in the midterms, that imbalance could conceivably shift, allowing the House to press ahead. Even so, the spectacle that would follow would present the greatest single challenge to Trump being removed from office.

The ultimate decision over whether the president is prosecuted for treason, bribery or, as the constitution puts it, “other high crimes and misdemeanors” (and there is debate over whether violating campaign finance laws would even fall into such a category) rests with the 100-strong Senate.

Its members essentially take on the functions and responsibility of a trial jury, hearing witnesses and evidence, complete with opening and closing statements. But the task faced by the House impeachment managers is sizeable; removing the president requires two-thirds of the Senate – some 67 senators – voting to convict.

As things stand, the Republicans hold 51 seats in the Senate, with the Democrats on 46 and two independent members. Some 35 seats will be up for election in three months’ time – 26 of which are held by Democrats – and just two need to turn blue to give the latter party control of the chamber.

In light of this, the midterms increasingly look as if they will be a referendum of the legitimacy – and future – of the Trump presidency.

Trump himself is already preparing for an exhausting campaign, and is expected to spend at least 40 days campaigning for Republican candidates, including at least eight rallies and 16 fundraisers across 15 states.

The choice of states will, as always, be strategic, given Trump can already count on the continued support of his strongholds.

Indeed, the least surprising development in recent days has been the confidence among Republicans that the Trump base will not lose faith in their bellicose ringmaster.

Reflecting on the Cohen and Manafort convictions, Larry Sabato, professor of politics at the University of Virginia, said: “I don’t think there is any change at all. That’s the amazing part of it. The Trump base and virtually the entire Republican party couldn’t care less. The polls will bear me out.”

Trump, after all, was not elected on the promise of being a paragon of virtue, and if he continues to appease his supporters on the key policy areas of hardline immigration, trade wars and unfunded tax cuts, he will remain immune from their censure.

The Cohen controversy, lest anyone needs to be reminded, is but the latest in a near endless catalogue of career-ending scandals to have engulfed Trump’s presidency.

They include, in no particular order: the ongoing investigations into whether his campaign aided Russian efforts to promote Trump’s candidacy; the inquiry into whether Trump obstructed justice by firing James Comey, the former FBI director; the State Department spending tens of thousands of pounds at Trump’s resort in Turnberry, as revealed by The Scotsman; claims the family company of Jared Kushner, Trump’s son-in-law and senior adviser, has secured foreign investment in exchange for granting visas; and the clutch of foreign administrations spending money at Trump’s international network of businesses.

That is to say nothing of the multitude of controversies and resignations by Michael Flynn, the national security adviser, Scott Pruitt, the Environmental Protection Agency chief, Tom Price, the health secretary, and Rob Porter, the White House staff secretary.

The question now is not whether the claims made by Cohen about Trump’s culpability constitute a graver crisis than any which preceded it, but whether it opens him up to the impeachment process, however difficult it may be.

Certainly, there are those in the Democrat camp who believe that to be the case.

Democratic congressman Al Green said the Cohen and Manafort convictions were a sign that “the countdown to impeachment has already started”.

He added: “[Trump], at some point, will have to choose if he will face impeachment or if he will resign. It will be his choice. The Congress will have no choice but to act.”

Tom Steyer, a billionaire former hedge fund manager behind the Need to Impeach campaign, ensured his site disseminated a series of digital adverts last week, promoting its view that Trump must be tried by his peers. He has since vowed to spend millions of dollars on television adverts echoing that message.

“We will be turning Need to Impeach into a vehicle for an unprecedented engagement effort,” he explained. “We’re going to amplify the voices of our supporters, we’re going to activate against this president, and we’re going 
to demand our representatives stand with us.”

Yet Steyer’s determination to elevate the issue in the court of opinion is, if not a minority view among Democrats, far from a universal one.

Save for a few of its hard left representatives, the party of opposition has been reluctant to seize upon Tuesday’s developments as an opportunity to call for Trump’s impeachment.

Nancy Pelosi, minority leader of the House, stressed that “impeachment has to spring from something else”, and urged her party to focus on legislative aims and ensuring that the Mueller investigation could run its course.

“If and when information emerges about that, we’ll see,” she added. “It’s not a priority on the agenda going forward unless something else comes forward.”

Dick Durbin, the second-ranking Democrat in the Senate, said: “We’re too early in the process to be using these words.”

The reasons for this are plentiful. If Trump survived impeachment, he would emerge emboldened for a tilt at a second term, and in embarking on the arduous and divisive process in the first place, the Democrats know they risk losing control of the debate over key policy areas in the upcoming election debate. The Trump sideshow would be the only ticket in town. That is to say nothing of the prospect of a Mike Pence presidency.

The midterms may only be three months away, but that is a long time in politics, especially in the Trump era, and events may conspire to strengthen both the legal and political case against the president.

Elijah Cummings, the ranking Democrat on the House Oversight Committee, who has called for an investigation by the State Department and the Department of Homeland Security following The Scotsman’s reports about federal payments to Trump Turnberry resort, has requested Cohen provide a sworn testimony before the committee.

The “extremely serious crimes”, he said, implicated the “fundamental underpinnings of our democracy”, and required Congress to provide “robust and credible oversight”.

Also imminent is the return to court of Manafort, this time on charges of money laundering and foreign lobbying violations. His trial is due to start in Washington next month.

Then there is the question of what Cohen has told the Mueller investigation, and what information prosecutors discover among the 1.3 million documents seized from his home and office in April.

But Trump is no mere passive actor in all of this. There remains the possibility that he could embark on a drastic course of action, either by closing down the Mueller investigation, pardoning his former associates, or both.

Unlikely though such moves may be, they cannot be ruled out given this is an administration which has shown scant regard for procedure and precedence.

Come what may, scrutiny will fall not only on Trump but the very principle of executive power in the US, and the extent to which it can be held to account. The Teflon test is about to get under way.