President Donald Trump pauses while speaking with Kenyan President Uhuru Kenyatta in the Cabinet Room at the White House, Monday, Aug. 27, 2018. | AP Photo/Alex Brandon Law And Order Think Trump Is Doomed? Not So Fast. After last week’s dramatic events, many on the left assume the president is in legal peril. Here’s why they’re wrong.

Eric Columbus served as senior counsel to the deputy attorney general in the Department of Justice from 2009 to 2014 and as special counsel to the general counsel of the Department of Homeland Security from 2014 to 2017. Follow him on Twitter at @ericcolumbus.

After a terrible, horrible, no good, very bad week, are the walls starting to close in on Donald Trump? Don’t be so sure—despite the current New Yorker magazine cover showing baying hounds chasing a terrified president, the dogs aren’t much closer to catching him than when last week began.

As a new week dawns, the key questions remain political, not legal. Due to Justice Department precedents, a sitting president won’t face a criminal trial while in office. So did last week’s developments boost the chances for removal via the impeachment process? Probably not.


Let’s start with longtime Trump lawyer and fixer Michael Cohen, who pleaded guilty to, among other things, facilitating hush money payments to Trump’s mistresses in violation of campaign finance laws. A Republican Party that has tolerated — and often cheered — countless Trump horrors won’t dump him for essentially failing to report a campaign expenditure. Trump could have legally paid off Stormy Daniels and Karen McDougal as long as he had paid them himself and his campaign reported the payments — with a description as bland as “litigation settlement” or “legal services.” In fact, the October 27, 2016, Daniels payment need not have been reported until after Election Day under Federal Election Commission rules.

Coupled with the failed 2012 prosecution of former presidential candidate John Edwards, who similarly used campaign funds to pay off a mistress, and the fact that courts have held that a campaign finance violation can constitute a crime only if the violator knew that he was acting illegally, the GOP will likely give Trump yet another pass. Indeed, we’ve known the general contours of this story for many months, but Trump’s approval rating has held steady.

Cohen might have other beans to spill, but his credibility is in doubt—and it didn’t help matters when his lawyer confessed inventing without evidence a much-hyped claim that Cohen knew that Trump had advance knowledge about his son’s Trump Tower campaign meeting with Russians promising dirt on Hillary Clinton. The documents and recordings seized from Cohen’s office earlier this year may prove more helpful to prosecutors than anything he could tell them.

Nor is Paul Manafort’s conviction likely to lead to Trump’s downfall. Anyone open to persuasion already assumed that the president’s former campaign chairman was a crook—the jury’s verdict won’t change any opinions about Trump, nor would a conviction in Manafort’s upcoming D.C. trial. While it’s possible Manafort wanted to roll the dice on a trial before deciding to talk to special counsel Robert Mueller, it’s more likely that Trump’s intimations of an eventual pardon have persuaded him to stay mum.

What about reports of immunity agreements for Trump Organization CFO Allen Weisselberg and tabloid magnate David Pecker? Here, too, there may be less news than initial reports suggested. While Weisselberg may know where all the bodies are buried, and Pecker may have been involved in numerous “catch and kill” agreements to benefit Trump, both men may have been granted immunity only for the limited purpose of sharing information regarding Cohen.

Why is impeachment the only option given that, as many note, the Supreme Court has never determined whether a sitting president may be indicted and tried? Because of the views of the Department of Justice—which, of course, would do the indicting. On two occasions—during the Richard M. Nixon and Bill Clinton presidencies—DOJ’s Office of Legal Counsel concluded that such an indictment would be unconstitutional. It’s extremely unlikely that Deputy Attorney General Rod Rosenstein—the ultimate decider, due to Attorney General Jeff Sessions’ recusal—would overrule, or ask OLC to re-examine, those opinions. While some have suggested that DOJ might reconsider its position only to the limited extent of allowing an indictment with trial postponed until Trump leaves office, Rosenstein, a cautious man by nature, seems unlikely to do so—and even if he did, Trump would still remain president.

Nor, based on his by-the-book career, does Mueller seem likely to want to upset the apple cart. Even Ken Starr, who had authority to deviate from DOJ rules when “inconsistent with the purposes” of the then-applicable independent counsel statute, ultimately concluded it would be imprudent to indict Clinton.

So that leaves the impeachment process—which is no picnic. To remove a president, a majority of the House of Representatives must vote to impeach (the equivalent of an indictment), and two-thirds of the Senate must vote to convict following a trial. Because Republicans are defending a mere 9 seats this fall, while Democrats must defend 26, the GOP is likely to keep Senate control even if Democrats win a House majority. And if the bottom falls out for the GOP, it would almost surely keep 48 senators, meaning that conviction would require the support of a good chunk of its caucus.

Indeed, if the House impeaches, a GOP-controlled Senate could do exactly what it did when Barack Obama nominated Merrick Garland to the Supreme Court: nothing. The Constitution doesn’t expressly require the Senate to act if the House impeaches. If Mitch McConnell fears his right flank heading into his 2020 reelection campaign, he could move to change the Senate impeachment rules to prevent an automatic impeachment trial.

It is, of course, entirely possible that evidence of Trump misdeeds will emerge that will dwarf what is currently known—either with regards to collusion with foreign actors in the 2016 campaign, efforts to obstruct the investigation of his campaign, or something else altogether. Perhaps probes of the Trump Organization will reveal Trump’s participation in money laundering; perhaps we will learn that Pecker negotiated a “catch and kill” agreement for Trump that covered nonconsensual sexual activity, as Pecker reportedly tried to do for Harvey Weinstein.

But even then, the greatest check on Trump is likely to be an opposition party with the ability to issue subpoenas and convene hearings—which can happen only if Democrats take back the House or Senate.

Even a full accounting of the Mueller investigation might not occur without Democratic subpoena power. Despite Trump lawyer Rudy Giuliani’s constant suggestions that Mueller will publish a “report,” he may well not do so. Under the old independent counsel statute that applied when Ken Starr was investigating Bill Clinton, Starr was obligated to advise Congress of “any substantial and credible information” that “may constitute grounds for an impeachment.” He did so in the form of a 445-page report that detailed Clinton’s sexual relationship with Lewinsky and outlined how the facts could give rise to impeachment.

But that statute is gone, replaced by special counsel regulations that do not expressly provide for a public report to Congress. Rather, at the end of Mueller’s work, he must provide a “confidential report” to Rosenstein explaining his “prosecution or declination decisions.” The regulations don’t specify how that report should look or what happens next. Even if Rosenstein wanted to make it public, he would be constrained by limits on the disclosure of grand jury materials.

Congress, however, can subpoena such a report—as well as Mueller’s evidence and his witnesses. If a Mueller indictment refers to Trump as an unindicted co-conspirator—or if it hints as much without making it explicit, as the U.S. attorney’s office for the Southern District of New York did in the Cohen indictment—Congress can follow up and demand the details.

In sum, last week began as it ended: with an unpopular president who is credibly accused of many shady activities, and great uncertainly about whether and how all the facts will emerge as long as Congress remains in Republican hands.

To paraphrase Barack Obama, there’s a simple takeaway from last week’s news for anyone interested in further exposure of Trump’s transgressions. Don’t cheer—vote.