At least since Donald Trump first announced his presidential campaign in June 2015, journalists and activists have been asking: Is this the scandal that finally does him in?
Would his casual description of Mexican immigrants as rapists in his announcement speech force him to drop out shortly after he jumped in? Would his attack on John McCain for being captured in Vietnam end his campaign? Would proposing an all-out ban on Muslim immigration? What about the revelation of a tape where he brags about sexually assaulting women? Or the stories from multiple women who claimed he did, in fact, sexually assault them? Or firing the FBI director to impede an investigation into his administration? Or leaking highly classified information to the Russian government? Would any of these be enough to finally bring Trump down?
As it turns out, the answer in each case was no. None of these were enough to stop Trump from winning the presidency, or to force him out of it. And there’s no reason to think the revelation that Donald Trump Jr. enthusiastically set up a meeting with a lawyer promising assistance as "part of Russia and its government's support for Mr. Trump" will be any different.
The truth is that whether or not Trump is “brought down” has at best an indirect relationship to the gravity of the charges against him. His fate depends much more heavily on how Republican leaders in Congress respond to the scandals in question than it does on those scandals’ details or severity. Trump is the American president. He can only be permanently removed from office if a majority of the House votes to impeach and a two-thirds majority of the Senate votes to convict. He can’t be charged in federal courts like a normal civilian.
Trump could also be removed under the 25th Amendment by a majority of his Cabinet — but that would also entail the Republican Party abandoning him, and if he contests it, the judgment would need to be ratified by Congress.
Unless Trump voluntarily chooses to resign, the only thing that will bring him down is Ryan and Senate Majority Leader Mitch McConnell agreeing that he must be removed from office, and rallying their members to vote for impeachment and removal.
Robert Mueller can’t fell Donald Trump
Robert Mueller, the former FBI director and special counsel charged with investigating the Trump-Russia scandal, could make a lot of trouble for people close to Trump. If he finds evidence that they’ve committed crimes, he could indict everyone from Donald Trump Jr. to Jared Kushner to Michael Flynn to Paul Manafort. He could even indict Vice President Mike Pence if he sees fit; when Vice President Spiro Agnew was in legal trouble in 1973, the Justice Department’s Office of Legal Counsel concluded that he was not immune from prosecution due to his office.
But Mueller almost certainly won’t indict Donald Trump himself.
Both the Justice Department’s Office of Legal Counsel and most legal academics contend that the president is immune from routine criminal prosecution by someone like a US attorney or a local district attorney. He could be charged for wrongdoing as president after leaving office, but not until after impeachment and removal, or resignation.
There is some dissent on this point. Hofstra University’s Eric M. Freedman has argued that rank-and-file prosecutors can indeed indict and prosecute the president. But Freedman also told me in May that it's basically unthinkable that a federal prosecutor would attempt something like this: "No one in the Justice Department chain of command will do it, not just for the obvious reasons but because the Justice Department has an official position of long standing that it can’t be done."
There’s also an easy out for Trump if Mueller decided to violate Justice Department policy and charge him. He could simply fire Mueller, who serves at the pleasure of the deputy attorney general; if Deputy AG Rod Rosenstein refuses, Trump could dismiss him and keep firing people until he gets someone who’ll comply. Once Mueller is fired, the person who fires him could name a new special counsel, who would surely dismiss the charges.
The path toward Trump leaving office simply does not lie through ordinary prosecutions. To get him out, you need Republicans in Congress to push him out.
Nixon had a Democratic Congress forcing him out. Trump doesn’t.
Yes, impeachment could theoretically proceed with mostly Democratic votes and some defecting Republicans. But in practice, both the Nixon and Clinton impeachment processes began with the full House voting to refer the matter to the House Judiciary Committee, and the Judiciary Committee approving articles of impeachment and sending them to the floor.
You can’t hold those votes unless the majority party schedules them. “Impeachment happens in the House of Representatives, and since the House is run on majority rules, it’s really up the majority party to run the process as it sees fit,” my colleague Andrew Prokop explains.
And, of course, Republicans are the majority party in the House and Senate. In the three previous impeachment scenarios in US history, the president has been faced with a congressional majority of the opposing party. Andrew Johnson, a Democratic/National Union Party president, faced a huge Republican majority in both houses. Richard Nixon faced a Democratic majority in both houses. Bill Clinton faced a Republican majority in both houses.
Trump, however, has co-partisans in charge of both houses. But surely, you may reply, Trump’s crimes top those of Johnson, Nixon, or Clinton! Maybe (I doubt it in the case of Johnson), but it doesn’t matter what you or I think. It matters what Ryan and McConnell think. And what they really want is a Republican president to sign their priorities, in particular slashing health care spending and other social programs and cutting taxes, into law.
Impeachment would wreck Republicans’ legislative agenda
Impeachment proceedings are long and ugly and almost completely consume Congress’s time and energy. They take up months that Republicans desperately need to pass health care and tax legislation before the 2018 midterms, which could see them lose control of the House. Think about it from Ryan’s perspective. He has, by his own admission, wanted to cut health programs for poor people since he was drinking out of kegs in college. So he can either charge forward with that goal and push for final passage of a Republican health bill — or he can spend months and months impeaching the president and giving a massive political gift to Democrats instead.
If you take the cause of cutting social programs and taxes as seriously as Ryan does, then why the hell would you ever choose the route of impeachment? He’d be left with very little time to enjoy the relative predictability and lower scandal output of President Mike Pence before the midterms put his House majority in danger. And if the 1974 midterms are any indication, having your party’s president leave under dint of scandal is a great way to lose an enormous number of seats in the House and Senate. After that, Ryan’s dream is dead.
The much easier path for Ryan and McConnell is to continually minimize Trump’s wrongdoing and decline to investigate seriously, let alone look into removal.
Maybe it doesn’t require impeachment, though. Maybe Trump will voluntarily resign if the situation gets bad enough. I mean, maybe. But is there anything about Trump’s character and temperament that makes such an outcome seem plausible? Nixon refused to resign until his party’s leaders in Congress came to him and told him impeachment was inevitable. Would even that do it for Trump? Why would he give Ryan and McConnell the gift of an easy departure were they to betray him like that?
As political scientist Julia Azari notes, impeachment is not about the law. Not really. There’s no dispassionate prosecutor who weighs the evidence, takes it to a grand jury, gets indictments, and then has a normal trial. It’s a political proceeding. A president survives if fewer than 218 House members and 67 senators want him out; otherwise, he falls.
For Trump to fall, for a scandal to end his presidency, what’s needed isn’t a new, massive scandal. What’s needed is for Ryan and McConnell to decide that investigating and prosecuting Trump is important, and the right thing to do. I hope they make that a priority. I hope they give Mueller greater statutory powers, including protection from removal, and push through impeachment charges if Mueller deems them warranted.
But the matter is in Ryan and McConnell’s hands, and no one else’s. As long as they remain on Trump’s side, the president is going nowhere.