Don't Impeach Trump. Give Him Immunity.

(Bloomberg Opinion) -- There’s another way to dislodge President Donald Trump from the White House. Instead of impeachment, Congress could remove him by statute.

As with impeachment, the chance that such a plan would work is remote. For one thing, Trump would have to go along. But there are good reasons for him to be open to persuasion, and there’d be political and procedural advantages.

Here’s how the process might work: The House of Representatives could begin with articles of impeachment, to put Trump’s “high crimes and misdemeanors” on the record.

But then instead of transmitting them to the U.S. Senate, the House would pass and send a bill instead. The preamble would recite the grounds adopted for impeachment, and then take note of Trump’s denials and his claim of innocence. That’s how documents settling legal disputes are often drafted.

Then would come the operative clause: Trump would agree to resign within 30 days of enactment in return for a broad grant of immunity from future criminal prosecution and civil liability for himself and his family, including his son-in-law, Jared Kushner. It would cover events and disputes that took place during Trump’s term in office and just before (consistent with statutes of limitation), and bind both federal and state authorities. Perhaps a more limited immunity grant could also be extended to his attorneys, counselors and chiefs of staff, at least with respect to matters pertaining to the impeachment.

Does Congress have the power to protect Trump from the many jurisdictions and individuals who might be tempted to pursue him once he leaves office? Probably so. Under the supremacy clause of the Constitution, Congress has broad authority to pre-empt state law.

Are there constitutional barriers? The Constitution prohibits bills of attainder — laws bypassing the judicial system to impose criminal convictions and punishment. But immunity is just the opposite and is not barred. There is no constitutional bar to non-penal retroactive legislation, especially if it does not involve payment of money or a specific taking of property, as would be the case here.

Nor does the Constitution say that impeachment is the only way that Trump can be lawfully removed from office. Nothing precludes a bill passed by both chambers that would have the force of law.

Unlike the impeachment process, which requires a two-thirds vote in the Senate for removal from office, a normal bill could pass by simple majority. If that sounds unfair, remember that Trump would have to consent, and agree not to veto the measure. The process would deprive him of no procedural right that he might have in impeachment.

Solid Republican support means there’s little prospect that 20 GOP senators would turn against Trump on impeachment — the number required to oust him if all the Democrats vote to do so. Nor is it realistic to expect a majority of Trump’s cabinet to declare him mentally disabled under the 25th Amendment, another way to remove him from the Oval Office.

By contrast, a bill would need just two or three Republican senators, assuming their colleagues don’t use a filibuster to block it.

And if Trump decides to go along, why would they? Implausible as it may seem at first blush, incentives are in place for Trump to do so. One worry for him would be prosecution for obstruction of justice, a crime described in detail in the March report by Robert Mueller, the special counsel who investigated Russian interference in the 2016 election. More obstruction charges are likely to appear in articles of impeachment concerning an attempted coverup of the effort to use U.S. military aid to pressure Ukraine into investigating Trump’s Democratic rival, Senator Joe Biden. At least that's what a conscientious lawyer might tell him.

But what should be an even bigger worry is the breadth of mail-fraud and wire-fraud statutes available to a prosecutor eager to bring down Trump for lying. Even wrongful use of emails can launch an investigation by the Federal Bureau of Investigation. On top of that is the prospect of federal or state prosecutions for tax fraud. He is a target-rich environment.

Even if it ends in acquittal, impeachment could be perilous for Trump if it exposes misbehavior that could land him in court once he leaves the White House.

For the nation, the legislative route would be far less divisive than impeachment followed by acquittal along strictly partisan lines. A polarized and provoked electorate could make the country harder to govern no matter who wins what in 2020. A legislated settlement, by contrast, could also calm the blood lust that has infected our civic discourse, in which opponents are not just to be defeated at the polls but thrown into jail.

Like it or not, removal by impeachment would reinforce the new norm, introduced by Trump, unless it protects him from the very lock-’em-up mentality he directed first at Hillary Clinton and more lately at Biden.

A quid pro quo got us into this: Maybe a quid pro quo can get us out. Let the deal maker make the deal.

To contact the editor responsible for this story: Jonathan Landman at jlandman4@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Thomas Geoghegan is a labor lawyer in Chicago. He is the author of "Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement."

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