Ukraine is by no means the only dirty secret being covered up
By David Frum | The Atlantic | 02/03/2020
Republicans voted down a measure to call witnesses in President Donald Trump’s impeachment trial and are moving to acquittal in a hell-for-leather dash to put the crisis behind them. It’s a doomed errand. With Trump, the next crisis is always just ahead.
Actually, the first “next crisis” has already arrived. The New York Times reported Friday that, in his forthcoming book, former National Security Adviser John Bolton writes that Trump first tried to put the squeeze on Ukrainian President Volodymyr Zelensky in early May 2019—and White House Counsel Pat Cipollone was a witness in the very room where the plot was hatched. Even as Cipollone argued on the president’s behalf that witnesses were unnecessary, he was plausibly alleged to be a crucial fact witness by another fact witness.
This double-dealing will surely trigger a new battle to compel testimony from Bolton and Acting White House Chief of Staff Mick Mulvaney—and perhaps to discipline Cipollone for unethical legal conduct. During impeachment proceedings, Bolton and Mulvaney defied congressional subpoenas; now there’s yet more urgency to determine what the president’s team of lawyers actually knew at the time they were making Trump’s case before the Senate.*
Then will come the crisis of the administration’s battle to suppress Bolton’s book—and all the other narratives that current insiders may want to tell in order to clear their own besmirched reputations. Does Mulvaney enjoy being the designated sucker in chief of this story? Maybe not.
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Even worse for Trump and the Republicans, Ukraine is by no means the only dirty secret being covered up. There are others, and perhaps even more damaging. Sometime before the end of June, the U.S. Supreme Court will rule in consolidated cases about whether Trump can continue to keep secret his tax returns and other business documents.
One case began with a New York State grand-jury subpoena of Trump business documents, to probe whether he broke laws when he allegedly paid hush money to two women during the 2016 campaign. The others involve subpoenas by House committees—Oversight, Financial Services, and Intelligence—of tax returns and banking records.
The multiple subpoenas raise different legal issues, especially because the Financial Services and Intelligence subpoenas were served not on Trump or his organization, but on his accounting firm and two of his banks.
If the Supreme Court rules in favor of some or all of the subpoenas, damaging financial information will tumble into the public domain right as the election season begins in earnest. Worse, the New York State case could conceivably lead to an indictment of Trump. The current practice is that a serving president cannot be prosecuted for a federal crime. What about a state crime? Vice President Aaron Burr was (unsuccessfully) prosecuted for the killing of Alexander Hamilton in 1804. Beyond that, there are not many relevant precedents. Whatever the ultimate constitutional answer to the question, it’s not a good look for a serving president to end a campaign arguing that he should be immune to state as well as federal criminal law. It raises questions like “Maybe we should have a president who has not committed so many crimes?”
Trump can of course hope that he wins on every point in the Supreme Court. Yet such a victory will not protect him unless it is overwhelming. If Trump wins 5–4, with the newest justice, Brett Kavanaugh, casting a vote for secrecy, this outcome will not command much legitimacy among Trump’s political opponents. Instead, they will charge that a justice whose guilty secret was protected by the president is now protecting the president’s own guilty secrets: yet another quid pro quo in an administration notorious for them.