Letter 145: A Yellow Light on Investigating Trump

BLUF (bottom-line, up-front). The process of investigating President Trump is moving ahead too quickly. An independent or special prosecutor is premature since the dismissal spelled out the cause for termination clearly. An informal ‘grand jury’ to determine if such a criminal investigation is appropriate, however, would be opportune. We do know that the firing of Director Comey did not lead to the immediate destruction of evidence.

The case against an Independent Prosecutor. Though the appearances look very bad for President Trump, an independent prosecutor is pre-mature for these reasons.

1. Publicly available evidence thus far seems to indicate that the President did not collude with the Russians, though conflicts of interest remain a disturbing question.
2. It is not yet clear, at least to me, whether or not the President knew of alleged ties between top officials of his campaign since these officials resigned shortly after their ties went public.
3. We should wait until those Republicans coming forward, albeit tentatively, to join the chorus of muscular accountability. 
4. The President is allowed to dismiss the Director of the FBI.
5. Independent prosecutors take a lot of time, leaving the country largely ungoverned now and through, at least, the 2018 mid-term elections.
6. lf such an Independent Prosecutor (which implies probable cause from day-1) is launched now with a taint of partisanship, the country may well end up ungovernable with a loss of faith in the institutions of the Republic.

What to do now. The case above does not argue for never appointing an independent prosecutor but doing so with deliberation. The thesis here is that we need to see some ‘sparks’ in addition the admittedly cough-prone amount of smoke. That means, before an Independent Prosecutor is appointed, probable cause of wrong-doing should be established.

Often, for the allegations of the most egregious crimes, Grand Juries convene and pass a preliminary judgement on the likelihood of culpability. If that probable cause is established, the District Attorney then takes the case forward. Grand Juries would not work here. Impartial jurors would be difficult to find. Additionally, their lives would face disruptions, perhaps threats to their physical or economic security.

The concept of the Grand Jury can be applied to this situation, though I am not sure what it would take to put the (informal) function into place. The President is not above the law, nor should he be denied the presumption of innocence. The proxy Grand Jury I would propose would be a panel composed of the Inspectors General of the Departments of Justice, State and Commerce.

Per a Congressional mandate of a limited scope of time and a focus on specific allegations, these three Inspectors General would conduct a far more limited investigation over the next few months, not to exhaust the review of evidence, but to establish a probable cause for specific charges. That preliminary spade-work would yield one of three outcomes:

• insufficient evidence to establish probable cause by at least two of three of three Inspectors General;
• establishment of probable cause by at least two of three Inspectors General; and,
• an impasse, in which neither of the previous two alternatives gain two votes.

Next Steps of the Inspectors’ General conclusions. The next steps would be dictated by the particular of the three outcomes actually determined.

1. Insufficient evidence would lead to continued delay in, or preclusion of, appointing an Independent Counsel or Prosecutor, though Congressional committees would still enjoy the prerogative to continue their investigations.
2. Establishment of probable cause would lead to immediate establishment of an Independent Prosecutor. 
3. A stand-off would lead to the appointment of an Independent Investigative Counsel to continue investigating without powers of prosecution, should the Congress so mandate.

Should the Department of Justice yield to pressures from the President and refuse to appoint either an Independent Prosecutor or Investigative Counsel, then Congress would establish a joint House-Senate special committee, as called for elsewhere, to investigate the allegations. The results of these ongoing efforts would be public and referred to the House Judiciary Committee for possible articles of impeachment.

Closing thoughts. The purpose of this idea, if it is even possible to do, is to clarify whether or not there should be an intrusive investigation of an unpopular President. The three Inspectors General will be able to come to a (non-)conclusion rapidly. If the President is merely inept and neither dishonest nor traitorous, he deserves to proceed with his agenda. On the other hand, if there are those proverbial sparks to provoke a deep-dive investigation, the appointment of an Independent Prosecutor or Investigative Counsel will be delayed by a month or two. 

Until there is a sense of comfort that President Trump is not as corrupt as an increasing number of people think he is, his agenda will become increasingly mired in debate that appears to be a partisan maneuver to undercut the President. That latter consequence would be damaging to the Republic and her institutions, no matter what the short-term benefits realized by Democrats and Republicans.. 

Finally, as these activities proceed, Congressional leaders need to “make one thing publicly clear”: that Congress reserves the right to deem as a possible “high crime and misdemeanor” (i.e., cause for impeachment proceedings to ensue) any pardon of President Trump by Vice President Pence, viewed as pre-emptive, should the President leave office following removal by the Senate or resignation. 

The reason why this last condition of extraordinary accountability did not apply to President Ford in 1974 was that President Nixon was clearly guilty and disgraced. Additionally, President Nixon never came close to treason and ultimately submitted to the rule of law by not destroying the very evidence that ultimately incriminated him. 

President Ford healed the country in a profile of courage, even recognized by Caroline Kennedy. A pre-emptive pardon by a President Pence would injure our faith in our institutions, possible sounding the death-knell of our belovèd Republic.