Scott has described Andy McCarthy’s article “Why Trump is likely to be indicted by Manhattan US Attorney.” McCarthy does the heavy lifting associated with a legal analysis of whether Trump has, in fact, violated campaign finance law, as the Manhattan U.S. Attorney seems to believe.
The six observations I want to add involve light lifting, at most, but may be of interest even so.
First, as McCarthy says, Justice Department guidance holds that a sitting president may not be indicted. If prosecutors in the Southern District of New York decide nonetheless to indict Trump for a campaign finance infraction, the Attorney General (presumably William Barr) should overrule the prosecutors. Justice Department policy shouldn’t be ignored or overturned to prosecute the kind of case that, according to McCarthy, is “often settled by payment of an administrative fine, not turned into [a] felony prosecution.”
Second, does William Barr have enough backbone to block prosecutors from indicting this sitting president? The William Barr I’m familiar with from telecommunications litigation 20 years ago does, I believe. There’s also, I understand, a Department of Justice institutionalist side to Barr. But that side should want to uphold DOJ guidelines.
Third, it might be possible to prosecute Trump once he’s no longer president. However, McCarthy points out that there’s a five year statute of limitations on the alleged campaign finance offense which occurred, if at all, in 2016. Thus, if Trump is reelected, the statute of limitations will have lapsed by the time he’s out of office.
Fourth, in any event, I would expect Trump to pardon himself before he leaves office, be it in 2021 or 2025. It seems to me that the president has this power, but that’s just my impression. Analyzing the question is well beyond the scope of this light-lifting post.
Fifth, House Democrats might seize on the alleged campaign finance violations as a basis for impeaching Trump. But McCarthy asks, “Do campaign finance violations qualify as ‘high crimes and misdemeanors’ which is the constitutional standard for impeachment?” I agree with his answer:
It is hard to imagine an infraction that the Justice Department often elects not to prosecute is sufficiently egregious to rise to that level, but the debate on this point between partisans would be intense.
Sixth, the prosecutors understand this problem, and want to preempt the argument that they are going after Trump on a mere technicality. That, I think, is why, reportedly, they are spinning the alleged campaign finance violation as Trump “defrauding” voters. They want us to believe that, unlike a technical violation that marginally increases a candidate’s war chest, this violation deprived the electorate of important information about Trump’s behavior.
But the public has no right to know with whom a political candidate has had sex. If it did, candidates would be required to disclose this. Thus, although Trump’s alleged finance violation does differ from normal ones, it’s ludicrous to claim that voters were defrauded because they lost the opportunity to learn about Trump’s extra-marital sex life.
Which probably won’t stop House Democrats from picking up the prosecutors’ cue and peddling this claim.