Government

How Will The Country Reckon With The Fact The President Is A Credible Felon?

No one can predict the outcome because his supporters exist in a cult-like atmosphere, but the merits have begun to weigh heavily against the president.

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In the last couple of weeks, a series of public bombshells dropped regarding alleged campaign-finance crimes involving the president of the United States (when he was a candidate), his former personal lawyer Michael Cohen, and the parent company of the National Enquirer. I will be the first to admit that given the sheer number of jaw-dropping reports/events/stories regarding this president it has become a cliché to pronounce that he is in trouble. But make no mistake, it would be foolish to dismiss the seriousness of these recent revelations as the facts are simply stunning.

The first extraordinary revelation came from a rebuttal brief issued by federal prosecutors during Cohen’s sentencing for his role in the campaign-finance violations. In it, the U.S. Attorney for the Southern District of New York explicitly accused the president of directing Cohen, during a crucial period of the campaign, to make secret and illegal payments in order to prevent two women from going public about previous extramarital affairs. As former federal prosecutor Ken White points out, this direct accusation is stunning because it demonstrates prosecutors “are sure of their evidence and have mostly finished collecting it.”

The second bombshell disclosure was the extent of the evidence against the president. But in order to understand its significance we must first delve into some necessary background. The statute the president is being accused of directing Cohen to violate is the Federal Election Campaign Act of 1971 or part 52 USC § 30101(19) of the federal code. Specifically, the statute prohibits any payment made “for the purpose of influencing any election.” Accordingly, in order to convict someone under this type of campaign-finance violation, the prosecution is required to prove intent.

In other words, the prosecution has to demonstrate sufficient evidence that the violation was “knowing and intentional” and as any lawyer can tell you, proving someone else’s intent is always difficult. Especially when you are accusing someone like the President of the United States. So I cannot really stress enough here how high the evidential bar is. What is astounding however is that from what we already know, this high evidential bar has already been credibly reached.

Last week, it was revealed the parent company of the National Enquirer, AMI, and its CEO David Pecker along with Cohen, are claiming the president was in the room when the hush money payments were discussed. Even more explosive was the news Cohen and Pecker are claiming the payments directed by the president (again when he was a candidate) were made with the expressed purpose of influencing the 2016 election. What makes these claims so convincing is that all surrounding facts support Cohen’s and Pecker’s account. As noted by George Conway, Neal Katyal, and Trevor Potter:

[The payments] were made many years after the actual affairs. The payments to Daniels, whose given name is Stephanie Clifford, were made in the final weeks of the 2016 campaign, immediately after the ‘Access Hollywood’ scandal broke, when Daniels was in negotiation with national media outlets to go public with her story. This timing strongly suggests that the payments were campaign-related.

And this is just the evidence we know of. All indications are that prosecutors have even more.

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Of course, anyone with experience around MAGA folks knows that no amount of evidence will ever sway their belief that the president is the victim of a “witch hunt.” More serious arguments have been made that hush money payments cannot amount to criminal campaign violations. And as David French notes, it is not impossible (if only unlikely) that a judge may take this view of the law.

But given the damning amount of evidence and applicable relevant precedent, along with the weakness of the arguments in the president’s defense, the glaring inference is that the president is in serious, serious trouble. And don’t just take just my word for it. Many legal experts spread across the political spectrum including Conway, French, White, and my colleague Elie Mystal all agree the evidence and relevant precedent works significantly against the president.

So, unless you are a complete hack, then one has to at least admit that a serious impeachment case is likely coming — the merits of which weigh heavily against the president’s favor. The inevitable question then becomes, what will the country do in this scenario?

Impeachment trials are not legal trials. They are political by their very nature and unlike litigation, the merits can easily be ignored in favor of rank partisanship and tribal loyalty. The president has claimed he could literally shoot someone in the street and he would not lose a single supporter, and here is the thing: I completely believe him. I am personally related to, and know many MAGA folks well, and in my experience, their behavior has all the telltale signs of a cult. They will not criticize their dear leader, or hold him even morally accountable in any adult sense no matter what evidence is produced, ever.

Nevertheless, it is crucially important for the rest of the country to understand the gravity of the evidence against this president and the cracks that are forming with the witch-hunt narrative of his cult followers. And yes, there are plenty of pre-motivated members of Congress who hate this president and will do anything to undermine him. But no serious-thinking person can claim with this amount of evidence that an impeachment of this president is based solely on a political witch hunt.

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A rare and stunning process is unfolding where the president’s own Department of Justice is directly accusing him of crimes, and has more than enough evidence to sustain a charge in normal circumstances. But these are not normal circumstances, and the only sure fact is that things will get uglier. Every American need to be adequately informed for the tough times that lay ahead.

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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