All Those Trump Investigations Fix a Constitutional Problem

(Bloomberg Opinion) -- Impeachment investigation without actual impeachment: That’s the strategy House Democrats have unveiled for taking on Donald Trump for the 20 months until the 2020 presidential elections.

The Michael Cohen hearings last week were, apparently, just the first salvo. On Monday, the House Judiciary Committee requested documents from 81 agencies, organizations and individuals connected to the president. The committee under Chairman Jerrold Nadler is preparing to leave no stone in Trump’s life unturned.

This investigative barrage solves a political problem for the Democrats, namely the danger that impeaching Trump would not lead to his being removed by the Senate and might instead help him win re-election, by energizing his supporters.

Constitutionally, this aggressive exercise of oversight may answer a question that has troubled many observers, myself included: What happens to the rule of law if there is evidence that the president is guilty of serious crimes, but there’s insufficient political will to impeach him? The answer may well be that such a president can be made to twist slowly in the wind, provided the opposition party controls one chamber of Congress.

Yet there is one meaningful risk associated with the Democratic approach. It might set a precedent for future aggressive investigations by opposition parties — even when a future president hasn’t been accused of felonies in open court.

To understand the nature of the constitutional problem we are facing, you have to keep two very different things in mind at once.

The first is the Framers’ failure to consider that national political parties could severely undermine the impeachment remedy they built into the Constitution.

The second is Trump’s statement (and apparent belief) that he could “shoot somebody on Fifth Avenue” without losing the support of his base voters.

The Framers thought it should be very difficult to remove a sitting president. They required not only impeachment in the House for high crimes and misdemeanors, but also a trial and a two-thirds vote in the Senate.

That made sense given that the Framers fantasized that the Senate would be made up of disinterested natural aristocrats who would always put country above party. (They were, ahem, thinking of themselves.)

It hasn’t exactly turned out that way. In a two-party system with roughly equal distribution of power, whichever party holds the presidency will almost inevitably be able to block removal in the Senate, provided its members think the party has more to lose from removal than to gain from it.

That’s a big reason presidents Andrew Johnson and Bill Clinton survived impeachment and were not removed by the Senate.

It might not have protected Richard Nixon; he certainly didn’t think it would. But Nixon didn’t have what Trump has so far: almost 40 percent of the electorate who appear willing to support him no matter what. These voters are Trump’s trump card — his reason to think he can get away with anything.

This confluence of factors creates a constitutional anomaly that would have profoundly shocked James Madison. Cohen has credibly testified in court and before Congress that Trump directed him to commit campaign finance felonies by paying off Stormy Daniels and covering it up. The prosecutors of the Southern District of New York, who believe Cohen, have in effect implicated the president in a felony charge.

But they can’t charge the sitting president, not under current Department of Justice guidelines. And impeachment by House Democrats is unlikely with little chance of Senate removal.

The result is a president who is unindicted but accused of a felony — and who is in practice above the law while in office. Worse, he’s the prosecutor in chief, sitting at the head of the executive branch.

It turns out there is one thing the Democrats can do to salvage the rule of law, and that is to investigate every possible form of Trump’s wrongdoing that can be even loosely connected to his campaign or his office. They can subpoena and interview employees, associates and former sexual partners.

That may not budge Trump’s 40 percent base. But it will take up all the air in public discussion for the foreseeable future.

The Democrats haven’t managed to learn how to make the news media talk about a topic other than Trump. But they can at least now drive the subject to Trump’s alleged malfeasance.

And they have a good shot at driving Trump crazy in the process. Soon enough, Trump will miss special counsel Robert Mueller and his behind-the-scenes, quiet investigation by professionals.

The Democrats will be gambling that the public won’t get sick of the investigations, and that the investigations won’t distract too much attention from the Democratic presidential candidates. Those seem like bets worth taking.

The constitutional downside is the risk that Democrats will be writing the script for a future Republican Congress to go after a Democratic president. That would destabilize democratic government over the long run.

But maybe the Democrats won’t field candidates who open themselves to charges of election-related felonies. That would certainly be a good idea.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

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

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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