Donald Trump
Credit: White House/Flickr

Rep. Adam Schiff (D-CA) will soon be the chairman of the House Intelligence Committee, but he has a very legitimate question about a domestic matter.

“Here’s the thing. If the Justice Department takes the position that Michael Cohen should go to jail, that these allegations are so serious that he should go to jail for these campaign fraud allegations, what is the argument against jail for the individual who coordinated and directed that scheme?”

In other words, how could someone justify not sending the president of the United States to prison? Or, if we want to put the question a little differently, how would we feel if Michael Cohen was able to escape punishment for his crimes just because he was the president of the United States?

Giving a serious answer to these questions isn’t an enjoyable exercise. To begin with, the Constitution provides a mechanism for removing a president from power, but it specifies that the cause must meet the definition of a high crime or misdemeanor.  That suggests that there are low crimes and misdemeanors that would not satisfy the test.

Perhaps campaign finance violations are low crimes, even when they are felonies. In this case, I believe that’s a highly contentious assertion since the violations in question arguably allowed Trump to win the narrowest of Electoral College victories. In other words, the violations perhaps determined the result, and Trump would not be president at all if not for committing these crimes. But, for argument’s sake, let us stipulate that a crime intended in part to avoid personal embarrassment and marital strife might not meet the standard of a high crime. The Democrats justifiably felt that way about Bill Clinton’s criminal efforts to deny his affair with Monica Lewinsky, so we do have at least a partial precedent here.

The thing is, no one went to jail in Clinton’s stead. As an example, the president’s secretary Betty Currie was accused of helping to obstruct justice.

Lawyers familiar with Ms. Lewinsky’s testimony said she told Mr. Clinton that the [Paula] Jones subpoena had demanded the gifts he had given her. They talked about it, and Mr. Clinton told her that she could not turn over the gifts if they were not in her possession, Ms. Lewinsky was said to have testified.

The following day, Ms. Lewinsky received a phone call from Ms. Currie, who said, ”I hear you have something for me,” Ms. Lewinsky told the grand jury, the lawyers said. And later that day, they said Ms. Lewinsky testified, Ms. Currie went to her apartment to retrieve the gifts.

It would have been significantly harder to shrug off Clinton’s behavior if his secretary had gone to prison. There would have been obvious injustice in that.

And that’s the kind of injustice that Adam Schiff is referring to with respect to Michael Cohen. Even though some of their crimes had nothing to do with Donald Trump, Schiff might also extend a similar argument to people like George Papadopoulos, Rick Gates, Michael Flynn, and Paul Manafort.

A better parallel is Richard Nixon, who avoided prison even as forty-eight government officials were convicted, many of whom were incarcerated. Of course, campaign finance violations played a comparatively minor role in the Watergate scandal, but that is ultimately likely to be the case in the Russia investigation, too.

Still, the protections afforded the president, whether in the Constitution or just as part of current Department of Justice regulations, allow for a certain degree of injustice. What we should contemplate is the value of the return we get on this injustice. Shielding the president from the kind of accountability that ordinary citizens face discourages frivolous attacks and shows a healthy respect for the verdict of elections. If the people choose a president, that president should not be removed lightly. This is important for a variety of reasons, but most convincingly as a protection against a breakdown in civil society. A political system that doles out accountability at the ballot box is preferable to one that utilizes the military or the courts. That’s why the ultimate decision to remove a president is left in our system to elected officials.

And I think here we get closer to an actual answer to Schiff’s question. There really is no argument that Cohen should go to jail and Trump should avoid accountability. The question is really about what kind of accountability Trump should face. In Clinton’s case, the Democrats argued that he should face an official congressional censure to put a black mark on his record. If campaign finance violations were the only serious allegation to be proven in this investigation, a similar remedy might be appropriate. In any case, a censure would be preferable to doing nothing. Of course, we are already far beyond such a scenario. At a minimum, the president would also need to be censured for running a charity so fraudulent that it will be liquidated.

If the House of Representatives impeaches Donald Trump, the Senate Republicans may try to revive censure as a solution short of conviction and removal from office, but it seems doubtful that the Democrats, the media, or the nation will see that as an adequate solution.

Whether it’s perceived as adequate may have nothing to do with how the Senate reacts, but if our elected officials decide to leave it to the electorate to decide, the GOP will still have to choose whether or not to support Trump as their 2020 nominee. They could perhaps persuade Trump to forego any effort to seek a second term in exchange for an acquittal in the Senate.

If they can’t even do that, then Trump could well win the nomination and stand for reelection. At least for now, his polling among Republican voters remains shockingly strong. And that would cast Schiff’s question in a different light. What, after all, is the argument for reelection for the individual who coordinated and directed a scheme that sent his lawyer to jail?

Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at