On Wednesday, Michael Cohen was sentenced to three years in prison for tax and bank fraud and, most notably, campaign finance violations he said he committed at the behest of his former benefactor, Donald Trump. The pleadings filed in Cohen’s case and those of Paul Manafort and Michael Flynn have gotten House Democrats talking more actively about impeachment, even though none of them are rushing to judgment. If the House takes up the question next year, it should pay particular attention to Trump’s conduct during his successful campaign for the White House and his general assault on the legitimacy of American elections.
As I have written elsewhere, a successful case for the impeachment of the president must rest not on any single event, but on a pattern of behavior that fatally damages the legitimacy of the president and/or amounts to subversion of the constitutional order.
The political legitimacy of any president who ascends to the office by election rests primarily on that electoral success. Presidential misconduct of two types related to elections may constitute an impeachable offense. The first type is any presidential behavior that casts doubt on the essential validity of the president’s own election. The Framers made a particular point of noting that misconduct of that type would be impeachable. George Mason maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable. Gouverneur Morris made the same point.
To the founders, the only obvious way of corrupting the presidential selection process was to corrupt the then-tiny circle of eligible voters—the members of the Electoral College. Today, of course, electors exercise no independent judgment. They merely transmit the preference of the voters of their state. Therefore, practical modern electoral corruption—other than outright ballot box stuffing or its modern computerized equivalents—must take the form of distorting the judgment of the electorate, rather than the electors.
That sort of corruption, if of sufficient magnitude, might be impeachable—with this significant caveat: The arts of voter persuasion inevitably have some aspects of flimflam. Just being an ordinary politician cannot be an impeachable offense. Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Impeachments on this ground would permit relitigation in Congress of every presidential election. Therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk. Trump’s conduct may have crossed this threshold.
Something like this is among the subjects of special counsel Robert Mueller’s Russia investigation. There seems little doubt, for example, that members of Trump’s family and campaign apparatus sought negative information about Democratic nominee Hillary Clinton from representatives of the Russian government, most particularly at a meeting between Donald Trump Jr., Jared Kushner, Manafort, and various Russians at Trump Tower in July 2016. Whether they received such information or, alternatively, encouraged Russian operatives to release it secretly through the WikiLeaks platform, remains to be seen.
It’s important to note here that the mere act of seeking negative information about a political opponent—even from a foreign source—is neither criminal nor in itself a violation of any democratic norm. Suppose, for example, that a foreign power was offering information that an opposing presidential candidate was herself a spy or active traitor. Surely there could be nothing inherently wrong in pursuing a credible claim that such information existed (although doing so secretly and without the knowledge of official national security agencies would be profoundly unwise).
What makes Trump’s case much more questionable is that it would have been plain to anyone in his campaign that any information would be coming from intelligence services of a hostile foreign state. If and when it became clear that the information was Clinton’s emails, it would have also been clear that the information had been acquired illegally by those services. Thus, in accepting the information, the Trump campaign would have known itself to be benefiting from a crime by a foreign spy agency.
Finally, and dispositively in my view, the mere effort to obtain tainted information from Russian sources necessarily creates precisely the situation that Trump now faces. The fact of such contacts undertaken without coordination with U.S. intelligence agencies is, at least, politically discreditable. It thus places Trump in his capacity as president at a disadvantage in any dealings with Russia because they have the power to disclose more about the contacts and thus do political damage to Trump. This reality is not altered even if nothing more happened than we now know. By even entering into conversation with Russia about this subject, Trump gave a foreign adversary leverage over him in the event of his election.
It is also now undisputed that Russia attempted to intervene in the election against Hillary Clinton and for Donald Trump. Critically, it did so, not by open declarations of its government’s preferences but by surreptitious proliferation of anti-Clinton/pro-Trump social media content and the aforementioned criminal hack. Whatever Trump knew or didn’t know about Russia’s activities, he was perfectly willing to accept secret electoral help from a traditionally hostile foreign power. Taken as a whole, Trump’s behavior with Russia during the election was far outside the historical norms of American democratic politics and an egregious betrayal of American foreign policy interests. And more revelations are likely forthcoming.
Finally, there’s the allegation that Trump guided Cohen’s hush money payments to two women with whom he allegedly had extramarital affairs and the fact that these payments were criminal violations of federal election law. Cohen and the media organization that took part in the payoffs have cooperated with prosecutors and admitted that the purpose of the payments was to deceive voters. But proving that Trump’s purpose in authorizing the payments was primarily political rather than personal—a desire to hide his behavior from his wife—might be challenging. Even if criminal, this behavior standing alone is surely not impeachable. The analogies to Bill Clinton’s efforts to conceal his affair with Monica Lewinsky, which did not result in his removal from office, are too painfully obvious.
As Rep. Jerrold Nadler, D–New York, incoming chairman of the House Judiciary Committee, recently observed, the hush money payments may be impeachable offenses in a technical sense, but not serious enough to warrant impeachment by the House. That said, the mistress hush money payments do form a part of a larger pattern of willingness to ignore both the law and democratic norms in pursuit of election victory. That pattern could constitute a key element in a broader case for impeachment.
Trump has also engaged in a second type of impeachable behavior related to elections. He has persistently attacked the integrity of the U.S. electoral process by making repeated, and entirely unsubstantiated, claims of individual voter fraud or corruption on the part of election officials.
Trump’s dogged adherence to the voter fraud fantasy can be explained in large measure by his well-documented insecurity over the fact that Hillary Clinton received about 2.9 million more popular votes than Trump in the 2016 election, even though he won the Electoral College. However, his assaults on the integrity of the election system have not been limited by this personal idiosyncrasy. In the days following the midterm elections of 2018, when a number of races in Arizona and Florida were so close that recounts seemed likely, Trump immediately began charging—again, without any evidence—that election officials were corrupt and that the elections were being stolen.
The American democracy will only survive so long as the people have confidence that their votes will be counted and honored. A president who incessantly questions the essential integrity of elections cannot be excused on the ground that he is merely salving his tender ego. Nor is a persistent pattern of questioning electoral integrity any part of traditional American political discourse. It is deeply dangerous, deeply subversive of the constitutional order, and for that reason could properly be considered as part of a larger pattern supporting impeachment and removal from office for abuses related to Trump’s 2016 campaign.