Is he above the law?

IT WAS the kind of moment that would crown the career of a reality-TV producer. While the president of the United States was on his way to a cam- paign rally, his former campaign manager, Paul Manafort, was found guilty of eight counts of tax and bank fraud; and his former lawyer, Michael Cohen, pleaded guilty to eight counts of tax evasion, fraud and break- ing campaign-finance laws. Cable-news channels needed so many split screens to cover what was going on that they began to resemble a Rubik’s cube. Amid the frenzy, however, some- thing important changed this week. For the first time, President Donald Trump faces a formal accusation that he personally broke the law to further his candidacy.

Mr Manafort’s conviction did not surprise anyone who had followed his trial, or his long career as a political consultant available for hire by dictators and thugs. Mr Cohen’s plea was more striking, because he was not just Mr Trump’s lawyer; he was the guy who made his problems go away. This included making payments during the 2016 campaign to buy the silence of two women who appear to have had affairs with Mr Trump. (The president has denied the affairs and now says he learned about the payments later.) But Mr Cohen told a court under oath that the money was paid “at the direction of a candidate for federal office”. In other words, that Mr Trump told Mr Co- hen to break the law, then lied to cover it up.

Neither Mr Manafort’s conviction nor Mr Cohen’s plea is di- rectly related to the allegations of collusion with Russia that have dogged the Trump campaign, and are being investigated by Robert Mueller, the special counsel. Yet neither case would have been brought without his investigation. This week’s events mean that Mr Mueller now stands on firmer ground. It will be harder for the president to dismiss him without it look- ing as though he is obstructing justice. And in such cases, con- victions often lead to more convictions as those found guilty look for ways to save themselves. The question now is wheth- er, and how far, Mr Manafort and Mr Cohen will turn against their former boss in return for leniency. As the slow drip of rev- elations and convictions continues, Americans will have to confront a simple question: is Mr Trump above the law?

Follow the money

Mr Cohen says Mr Trump asked him to make hush-money payments—something that is not illegal for ordinary citizens, but counts as an undeclared donation when done on behalf of a political candidate, as Mr Trump was at the time. So what? After all, America treats breaches of campaign-finance law much more like speeding tickets than burglary: they are often the result of filling in a form wrongly, or incorrectly accounting for campaign spending. There are good reasons for this indul- gent approach. When voters elect someone who has bent the rules, it sets up a conflict between the courts and the electorate that is hard to resolve cleanly.

Mr Trump does not stand accused of getting his paperwork wrong, however, but of paying bribes to scotch a damaging story. That is a far more serious offence, and one that was enough to end the career of John Edwards, an aspirant Demo- cratic presidential candidate, when he was caught doing some- thing similar in 2008. There is no way of knowing if Mr Trump would still have won had the story come out. Even so, the pos- sibility that he might not have done raises questions about his legitimacy, not just his observance of campaign-finance laws.

What of the convention, which has been in place since the Nixon era, that the Justice Department will not indict a sitting president? Again, there are good reasons for this. As with breaches of campaign-finance law, such an indictment would set up a conflict between the bureaucracy and the president’s democratic mandate that has no happy ending. The conven- tion would doubtless be void if there were credible evidence that a sitting president had, say, committed murder. But the payment of hush money to avoid an inconvenient story about an extramarital affair falls a long way short of that.

The authors of the constitution wanted to allow the presi- dent to get on with his job without unnecessary distractions. But, fresh from a war against King George III, they were very clear that the presidency should not be an elected monarchy. If a president does it, that does not make it legal. The constitu- tional problem that America is heading towards is that the Jus- tice Department’s protocol not to prosecute sitting presidents dates from another age, when a president could be expected to resign with a modicum of honour before any charges were drawn up, as Nixon did. That norm no longer applies. The un- written convention now says in effect that, if his skin is thick enough, a president is indeed above the law.

Drip, dripping down the drain

This means the only solution to any clash that Mr Trump sets up between the courts and the voters is a political one. Ulti- mately the decision to remove a president is a matter of poli- tics, not law. It could hardly be otherwise, as America’s Found- ing Fathers foresaw. In “Federalist 65”, Alexander Hamilton explained why it was the Senate, rather than the Supreme Court, that should sit in judgment on the president, for “who can so properly be the inquisitors for the nation as the repre- sentatives themselves?” No other body, he thought, would have the necessary “confidence in its situation” to do so.

Alas, that confidence has gone missing, leaving American democracy in a strange place. Thus far Republicans in Con- gress have stood by the president. The only thing likely to change that is a performance in the mid-terms so bad that enough of them come to see the president as an electoral liabil- ity. Although Democrats may well win a majority in the House, a two-thirds majority in the Senate—the threshold re- quired to remove a president—looks unachievable.

Mr Cohen’s plea has made the president of the United States an unindicted co-conspirator in a pair of federal crimes. That makes this a sad week for America. But it is a shameful one for the Republican Party, whose members remain more dedicated to minimising Mr Trump’s malfeasance than to the ideal that nobody, not even the president, is above the law.