Lots of people are talking about the new reports from the sentencing of former Trump fixer Michael Cohen, leading unavoidably to the conclusion that President Donald Trump committed felonies.
But indictment, and even conviction, by themselves, will not have the effect of removing the president from office. That is a separate process.
Leon Jaworski considered prosecuting Richard Nixon after he resigned. In 1998, Brett Kavanaugh told special prosecutor Ken Starr that he should not indict Bill Clinton while he was still president of the United States. Kavanaugh then believed, and likely still believes, that a sitting president should be immune to criminal prosecution. This is rank nonsense. The presidency is a job. It is in many respects the most important job in our republic, but it is a job. Nothing about it in any way requires or justifies immunizing the incumbent from criminal prosecution.
But right now, the important point is that even if federal prosecutors — the current claim about a felony by Trump comes from the Southern District of New York, not Robert Mueller’s investigation — do indict Trump, and he undergoes trial with a conviction, he will still be president of the United States.
To state what may be obvious, we have never faced this situation before.
But only impeachment can remove the president from office. The definition of impeachment in the Constitution clearly assumes as much. It specifies criminal behavior — “treason, bribery, or other high crimes and misdemeanors” — as the criteria for removal from office for impeachment, but also clearly states that anyone who suffers removal from office via impeachment remains liable to criminal prosecution for any crimes s/he may have committed that caused the removal.
Logically, this indicates that the Founders saw criminal prosecution and removal via impeachment as two distinct processes. Lawyers like process. The Constitution guarantees to all “persons” the due process of law. Criminal conviction and removal from office are two distinct sets of procedures with different penalties. The Constitution clearly provides that the sole penalty for a finding of guilt in an impeachment trial is removal from office. It says that right before it says that the subject of impeachment shall remain liable to criminal prosecution.
An indictment can and should lead to impeachment. Whether it will is an open question. There is no legal requirement to impeach a president who has suffered indictment. The standard for removal is criminal, but the decision to impeach is political.
The other open question is if McConnell will hold a trial if the House impeaches. Remember that “impeachment,” strictly speaking, only means to level an allegation. Removal from office comes only after a trial in the Senate. Just as the decision to impeach is political, the decision to proceed with the trial is political. We know that McConnell has zero respect for the customs and norms of our republic, or for condemnatory public opinion. He refused to hold hearings for Obama’s nominee to replace Supreme Court justice Antonin Scalia and has worked hard to force through as many of Trump’s judicial nominees as he could.
There is no good reason to doubt that he might refuse to hold an impeachment trial, at which point, other Senators would have to use whatever procedural tactics they can muster.
Removal of Trump is far from certain. We have to keep the pressure up.