Schiff: Lock him up?

If you were watching the Sunday shows this weekend you may have caught Congressman Adam Schiff making the rounds and looking to generate some headlines. Perhaps his most provocative statement came when he was asked about the prospects for the Mueller report resulting in President Trump being impeached or possibly even sent to prison. Schiff’s take? Hey… why not both? (Associated Press)

Top House Democrats have raised the prospect of impeachment or the real possibility of prison time for President Donald Trump if it’s proved that he directed illegal hush-money payments to women, adding to the legal pressure on the president over the Russia investigation and other scandals.

“There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him, that he may be the first president in quite some time to face the real prospect of jail time,” said Rep. Adam Schiff, the incoming chairman of the House intelligence committee. “The bigger pardon question may come down the road as the next president has to determine whether to pardon Donald Trump.”

Of course, Schiff is speaking from the cheap seats for the most part. He’s not even on the Judiciary Committee, which would consider any initial possibilities of impeachment. And the senior Democrat there, Jerry Nadler, was still hedging on impeachment when asked for a comment.

Then, of course, there’s that little matter of getting the Senate to actually convict the President. The GOP will still hold the majority there for the rest of Trump’s first term, so this is all an exercise in mental meandering.

But what about the whole “arrest him after he leaves office” question that Schiff was hinting at? Or perhaps he could just shorten it to “lock him up.” All of this relies on the belief that the payments to the porn star and the Playboy model can be nailed down as campaign contributions. As we’ve discussed here before, that’s a convoluted path (assuming the payments can be definitively proven, which looks fairly solid at this point). If such payments can be shown to have been for any additional reason – such as protecting his marriage – then defining them as campaign contributions becomes even more tricky.

But just for the sake of argument, let’s assume that such a finding could be established. Could the President really be indicted, put on trial and even sent to prison after leaving office? In theory, it’s possible. That’s the point Andrew McCarthy was making in his column this weekend where he suggests the President may be on his way to an indictment also.

[W]hen Cohen pleaded guilty in August, prosecutors induced him to make an extraordinary statement in open court: the payments to the women were made “in coordination with and at the direction of” the candidate for federal office – Donald Trump.

Prosecutors would not have done this if the president was not on their radar screen. Indeed, if the president was not implicated, I suspect they would not have prosecuted Cohen for campaign finance violations at all.

Sure, McCarthy is a NeverTrumper from the National Review stables, but he brings up at least one salient point. Whether or not you wind up being indicted for campaign finance violations is definitely a function of who you are and who you’ve ticked off.

As he correctly notes, jail time for any campaign finance violation is nearly as rare as hen’s teeth. Generally, the FEC just makes you pay a fine. But an exception was made in the case of Dinesh D’Souza, who was sentenced to prison time and later pardoned by President Trump. And yet when Barack Obama’s 2008 presidential campaign was found to have engaged in campaign finance violations totaling nearly two million dollars (nearly ten times as much as Trump is accused of), it was quietly settled with a $375K fine.

In the end, any action against the President (or former president if Trump were to lose in 2020) would have to come from the Justice Department. Under Barack Obama, they chose not to go after their boss but did charge D’Souza. Under Trump, the Justice Department has almost entirely ignored Hillary Clinton, despite all of the Lock Her Up chants on the campaign trail. Under a hypothetical Democratic 46th POTUS, would Justice reverse course and go after Trump?

I wouldn’t rule out anything at this point.

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