For now, let’s assume that Trump did nothing wrong during his presidency, that only his pre-election conduct is at issue. Most commentators have taken the view that Mueller cannot indict for criminal activity during Trump’s presidency, although this is a matter of current Justice Department policy and not airtight law.
We’ve never been confronted with the situation where the means by which a candidate got elected allegedly violated the law. When he should arguably have never gotten to the presidency to enjoy temporary immunity, must the prosecutor refrain from criminal indictment? There is no definite answer. One could look at pre-election criminal conduct as no different from criminal conduct during the presidency (i.e. no indictment), or one could look at the pre-election conduct as a fraud on the electorate. In the latter case, one could argue that the president cannot use his ill-gotten gain (the presidency) as a shield to immediate prosecution. (To take this question to the extreme, what if a candidate killed his opponent?)
Joshua Matz, co-author of “To End a Presidency: The Power of Impeachment,” points out that indicting for pre-election conduct raises all sorts of practical problems, including proving that the criminality swung the election. He concludes (and I agree) that “the better (and more realistic) approach is to conclude that pre-election conduct ‘defrauding’ the electorate and corrupting the electoral process constitutes an impeachable offense. The president might then be impeached and removed for his misdeeds, at which point he could face criminal liability without all these questions.”) In any event, I suspect that Mueller and Deputy Attorney General Rod J. Rosenstein will adhere to the current Justice Department policy whether we are talking about pre- or post-election conduct.
The more interesting question is for Congress. When the president’s conduct, as in my hypothetical, all occurs before the election, can the House impeach and the Senate convict? (This is really hypothetical, since Republicans will do nothing, I strongly suspect.) Some top legal scholars, fortunately, address this question in a report in the New York Times. Matz tells the Times, “At the constitutional convention, the framers repeatedly expressed anxiety about the president seeking to obtain office through corrupt means. In fact, that was one of the principal reasons they included an impeachment power in the first place.” The Times notes that the framers “singled out one offense in particular as worthy of impeachment: a candidate’s interference with the Electoral College.”
Legal experts agree that meddling in the electoral college (an actual rigged election) is different from conspiring with a foreign power or illegally paying hush money:
But both interfere with the democratic process, said Laurence H. Tribe, a law professor at Harvard, the other author of “To End a Presidency” and a frequent critic of Mr. Trump.“The felonies of which Cohen, in statements that were self-incriminating and thus particularly trustworthy, accused his former client, the president, didn’t literally involve bribery,” he said, referring to Michael D. Cohen, Mr. Trump’s former lawyer, “but certainly involved criminal conduct designed to reduce the risk that disclosure of his extramarital affairs and dalliances on the eve of the election would cost him the votes he ended up needing in places like Michigan, Pennsylvania and Wisconsin.”
The short answer is that a conscientious House member who concluded that Trump intentionally violated the law in winning the presidency would certainly be acting in accordance with the framers’ design if he voted to impeach. A member of the Senate would likewise fulfill his constitutional obligation by voting to convict.
We conclude therefore that right now, if lawmakers believe Cohen’s assertion that Trump directed him to violate the law in order to pay off two alleged paramours, they could well conclude that Trump should be impeached. At the very least, there are grounds to begin the discussion and the congressional fact-finding process.