'Catastrophically messy': A constitutional scholar explains the subtle way Trump could circumvent the 2020 election if he loses

As the entire world now knows, last Friday special counsel Robert Mueller submitted the final version of his report to Attorney General William Barr. Mueller will recommend no additional prosecutions beyond the 34 individuals he has already charged, including convictions or plea bargains for five of President Trump's current or former advisers.

On Sunday, Barr submitted his own four-page summary of Mueller's report to Congress. In the most important quote from that letter, Barr wrote: "The special counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. Presidential Election."

Regarding obstruction of justice, Barr quotes Mueller as writing, "While this report does not conclude that the President committed a crime, it also does not exonerate him." Barr, along with Deputy Attorney General Rod Rosenstein, have concluded that there is insufficient evidence to charge Trump with obstruction of justice, even setting aside the question of whether a sitting president may be indicted for a crime.

Barr's decision not to pursue charges against Donald Trump was highly predictable. Barr was appointed in the first place largely because of his stated belief that a president's powers are expansive. In his view, it is unlikely that any president could be charged with obstruction of justice. Barr even wrote, in a memo to senior Department of Justice officials approximately a year ago, that the entire Mueller investigation was "fatally misconceived." It would appear that Barr was Trump's insurance policy against the Mueller investigation -- and one that paid off.

While Donald Trump and his defenders are celebrating Mueller's report, Trump was not in fact exonerated for his blatant efforts to obstruct justice. Key questions also remain about the Trump campaign's contact with Russian officials during the 2016 presidential campaign, as well as those of the campaign's surrogates and allies. Moving forward, Congress, investigative reporters and other guardians of American democracy must continue to explore whether this president is actually trying to serve the best interests of the United States or is instead privileging his own narrow self-interested goals.

Trump and his inner circle also remain in legal peril for crimes that will come to trial in the upcoming months. There are also ongoing counterintelligence investigations into Russian interference in America's elections and possible connections to Trump and his associates.

A huge question still remains unanswered: Should Donald Trump be impeached, convicted and removed from the presidency for committing high crimes and misdemeanors? It is unlikely that Robert Mueller's full and final report -- even when and if we get to see it -- will provide a clear and direct answer.

At least arguably, Donald Trump's public conduct -- some of which has likely been criminal -- justifies his being removal from office. These include publicly encouraging a hostile foreign power to interfere in the 2016 presidential election with the goal of installing him in office, followed by Trump's denials that the interference even happened, despite overwhelming evidence to the contrary. Trump continues to impede any efforts to protect the United States from similar attacks in the future. Trump also lied about his business dealings with Russia during the presidential campaign, and as president publicly admitted to obstructing justice after he fired FBI Director James Comey in an effort to shut down the Russia investigation.

But ultimately, politics is not about what is always right and just but rather what is practical and expedient.

Why is impeaching Donald Trump viewed by many people -- including prominent Democrats -- as a near-term impossibility? Could impeachment succeed, and under what circumstances? Are congressional investigations and hearings a better way of holding Trump and his administration accountable for their misdeeds and general disregard for democracy? What would happen if Donald Trump were to be impeached and convicted, or if he loses the 2020 presidential election? Would he declare a national emergency in an effort to stay in office?

In an effort to answer these questions I recently spoke with Laurence Tribe, a leading scholar of constitutional law and the Carl M. Loeb University Professor at Harvard University. He is the author of several books including his most recent (co-written with Joshua Matz), "To End a Presidency: The Power of Impeachment."

Our conversation took place before the Mueller report was submitted last week. It has been edited for length and clarity. You can hear our full conversation on my podcast, "The Chauncey DeVega Show."

No. I think it would have seemed like a very premature, unsophisticated type of science fiction. In retrospect, one can see all the strands coming together as kind of a perfect storm. For a long time America has had carnival barkers and fantasists and pathological liars who have been successful as charismatic attractors of public attention.

When you look at the circumstances in which we find ourselves now, with social media overwhelming conventional news platforms, with people hearing only what they want to hear in those echo chambers, and seeing what they want to see, one could say that none of this with Donald Trump is all that shocking or surprising. But I certainly would not have foreseen it. As late as almost midnight on the day of the election in 2016 I still thought that Trump was not going to win. It just didn't seem possible.

I kept trying to warn the public that Donald Trump was going to win the 2016 presidential election. I explained this as Hillary Clinton being the wrong candidate at the wrong time and that she was too competent. How could her competency defeat the buffoonery of Donald Trump? It couldn't.

On one hand Hillary Clinton was too competent. But on the other hand she was not competent enough. She made some elementary political blunders. Hillary Clinton did not listen to her husband, who is really a political professional and special talent. She spent too little time in crucial states that many people were telling her were going to make the difference in terms of winning. Hillary Clinton had too much confidence in herself. She felt too entitled. In the end, when I say "perfect storm" there were so many factors whose confluence made it so close that all it took was 70,000 votes in Wisconsin, Pennsylvania and Michigan to make the difference.

But if Hillary Clinton had been a candidate with a better sense of the nation's pulse, and a better sense of tactics and strategy, it would not have been that close. And she was in a situation where what Comey said could make a decisive difference, or what Putin did with respect to Guccifer or WikiLeaks. But it was only a matter of time before someone like Trump -- and maybe even more dangerous -- could rise to power. Because someone as demagogic as Trump but who is really smart could be an even greater threat to our republic. Although we cannot be sure that we will survive this situation with Donald Trump either. But I am hopeful that the United States and the American people will in the end.

Version 2.0 of Donald Trump is going to be much more dangerous. Imagine if Donald Trump were an intelligent person. The damage he is causing to the United States would be even more catastrophic.  

Absolutely. But we have to get to the next time. I keep worrying that when we get to the 2020 presidential election, unless it is an absolute landslide, Trump is certainly going to say that he did not legitimately lose. Trump is going to concoct a national emergency and God knows what else. I'm not among those who think that the United States will have a smooth transition to whoever is president after Trump if he loses in 2020. I'm not at all sure. I think the United States and the American people are really in a position of enormous peril with Donald Trump.

Is Donald Trump's election and presidency a failure of the American people? Or is this the fault of the media and the political elites?

I think it's everyone's fault. Ben Franklin gave that famous, perhaps apocryphal response to the woman who asked him, "What have you given us?" He said, "A republic, madam, if you can keep it." It clearly required the people to become engaged and to remain engaged. Too many people are not voting. Too many people are not participating in civic life. Too many people have basically checked out into their own social media silos. This has all created a petri dish in which a terrible virus could grow.

That virus turns out to have the name Donald J. Trump. And I am not among those who think he is only a symptom, not a cause. Trump has certainly contributed actively to the degeneration of the American republic. But Trump is also an expression of what we have allowed to happen. Clearly a country much more educated, much more alert, much less willing to follow the latest trends, much less willing to drink the Kool-Aid would have been more resistant to this virus. But we've basically not inoculated ourselves and I think we have ourselves, as a country, to blame for the very dangerous situation that we find ourselves in with Donald Trump.

How is the United States doing right now in terms of the rule of law?

Not well, but this is not because the institutions themselves have not held. The courts have not yet collapsed. They have not completely surrendered to Donald Trump -- although what the Supreme Court did on the travel ban was not a good sign of how it will resist the "national emergency" or any number of other violations that he commits. But I think that in the main, the House of Representatives has begun to push back. Journalists have pushed back. The institutions of government have not collapsed.

But the underpinnings: the culture, the norms, the unwritten traditions that would have led us in the past to treat a charlatan who lies almost as easily as he breathes as unacceptable, that is what's lost. And I think it is a lot easier to imagine the institutional framework holding, while the underlying foundation, that soft underbelly which isn't codified in specific rules, gives way. From that point of view, the rule of law could end up being hollowed out. The courts will try to push back against this, but with more and more Trump appointees the courts will not push back very hard.

There is also the House of Representatives that understandably will not move to impeach Donald Trump until more investigations are done. But then it will be too late, because the 2020 election will be so close that impeachment would be pointless. The institutions will be functioning in a formal way, but I believe the underlying pushback against authoritarianism and kleptocracy will have been weakened rather badly. It will take a long time to have it restored in this country.

How would you explain to the average American the danger represented by all the judges Trump has nominated, and by the Republican Party's general contempt for the rule of law?

It will take some time for all of the harm to be felt. It depends on which average person you are talking about. If it is a young woman who might need an abortion, it will affect her by making it unavailable. If it is somebody who needs protection from exploitation by big banks and by huge corporations and by the government, those protections will not be there. People will gradually see that the quality of their lives is diminished.

The jobs won't come back. The manufacturing won't come back. But it happens so slowly. And in the meantime, all the distractions and noise will lead people to follow Trump over the cliff, I'm afraid.

Republicans and other conservatives love to talk about the Constitution and their love and respect for it as signaled by "originalism" and a claim to be "strict constructionists." But with Donald Trump, most Republicans and conservatives have abandoned any principles in terms of providing any "checks and balances." 

They claim that they are trying to fulfill the dream of the framers is really just so much nonsense. The framers would be aghast at the thought of a president like Donald Trump, who would seize the power of the purse from Congress by declaring a national emergency. The framers would be aghast by most of what Donald Trump does. So "originalism" becomes simply a mask for reclaiming some imagined golden era of the past and claiming that one is a "true American."

But surely there is nothing about this administration, or about the complicity -- and perhaps even something worse than complicity -- of the Republicans in the Senate that resembles the American Dream. What is happening is fundamentally un-American. Think about it. The Republican Party that was concerned about the Soviet Union and how terrible and dangerous the KGB was, now supports Donald Trump, a president who essentially licks the feet of a former KGB agent in the person of Vladimir Putin.

Trump also worships dictators around the world. We have a situation in which the ineptitude of President Trump is one of our safeguards of American democracy in an odd and surprising way.

From the point of view of the framers, what are Donald Trump's greatest offenses against the Constitution and American democracy?

I think what the framers would be most concerned about is Donald Trump's disloyalty to the ideal of America. That Trump is using the presidency to enrich himself. Trump is beholden to foreign powers. This point is very important. The framers were terribly afraid of such a thing happening. Trump is using his loyalty to foreign powers, which have helped to enrich him, as a way of distorting American policy and pushing it in directions that have nothing to do with national security or the interests of the United States. Donald Trump has violated the clauses which were written into the Constitution to prevent a president from using his office simply as a moneymaking machine where he would be beholden unto others.

What do you think are the most high-profile examples of his corruption?

Well, I think the fact that Donald Trump had this enormously lucrative project going on in Moscow that he hid from the American people almost right up to the election, claiming that he had no business dealings in Russia. That has to be right up near the top. The fact that after the "Access Hollywood" tape came out, Trump was willing to concoct and scheme and conspire to violate election laws in order to suppress stories that he thought would make it much less likely that he would win the presidency. And the fact that, every day, Donald Trump and his children are basically running a money-making machine -- and a money-laundering machine -- that cheats the American taxpayer. Donald Trump is doing this right out of the Oval Office.

Trump is writing checks to pay off porn stars. This is fundamentally a racketeering enterprise. It is hard to pick one lie over the other with Donald Trump. The whole is so much more horrific than the sum of its parts.

The Mueller report is a Rorschach test. Republicans will see vindication for Donald Trump regardless of the facts. Democrats will take the report as more proof that Trump needs to be removed from office. Ultimately, nothing is likely to come of this report in terms of shifting the needle and saving the country.

I think you're right. Anyone who expected the Mueller report to be a sudden revelatory moment that turns the tide one way or the other is bound to be disappointed. The report is bound to be inconclusive. Some parts of it will be suppressed no matter what the Democrats do with the subpoena power.

But the fact is that Mueller's mandate was quite limited. He was looking for evidence of crimes and he was focused on people other than the president, because of this completely illegitimate policy that you can never indict a sitting president.

What the American people and the world will get, however, is a lot of information and activity from the investigators in the Southern District of New York. And we'll get even more from the House Intelligence Committee, the House Oversight Committee and the House Judiciary Committee. The committees are doing serious investigations. [Rudy] Giuliani and others will, of course, attack their work and findings.

But I do think it's possible that the cumulative effect of all the disgusting corruption that emerges will be enough to make the American people suddenly wake up and say, "We're better than this. We can't live with this any longer." It may be so close to 2020 that it will all have to come out in the wash in the next election, and that there's no plausible way to impeach and remove Donald Trump because the eve of the next election will be upon us. I think and hope that somehow the truth will help to set the American people free.

What would you say if a United States representative or senator called you seeking advice about impeachment and Donald Trump?

They have called me. I told them, "Don't move down the impeachment track yet. Go down the investigation track." That's the "I" word that you should be using. Investigate. Pull the facts together. Expose the truth. Get the American people to understand what happened. And then see where we should go. Do not decide in advance that you should be impeaching.

The message of my book "To End a Presidency: The Power of Impeachment" is that we are too impeachment-obsessed. There's an awful lot that Donald Trump does that is horrible and that should disqualify him from ever being president again. However, that may not be impeachable. Or what Trump has done will not result in a successful removal from power. We should not organize all our critiques of this president and his presidency around the hope that he can be dramatically removed by impeachment.

Impeachment is a very important power. It is a power that Congress needs to be able to use. Unfortunately, the configuration of political forces right now is such that the power is almost unusable. But Donald Trump can certainly be investigated and exposed. We can certainly use the oversight functions of Congress. We can use Congress' power of the purse. We can use litigation against the president, his foundation, inaugural committee and organization to expose the truth and get the American people to see that this is a mistake they do not want to make again.

How would you convince Trump's supporters in Congress to do the right thing and support removing him from office?

I would ask them, "How do you want to be remembered? What's the big deal about holding this office? Is it all that great? Do you really want your grandchildren to think that you were part of bringing down the American republic, and possibly triggering some terrible wag-the-dog war scenario on the eve of Trump having to leave office? Don't you have any self-respect?"

I would try to shame people. I would do this believing that somewhere, in the inner core of almost everybody, there is at least an ounce of integrity. I certainly do not believe this about Donald Trump.

How would you explain to the average person the threat that Donald Trump embodies to them personally, especially with his "national emergency"?

I would highlight the fact that among the statutes that are triggered by the declaration of a national emergency is that the president can control the internet. He can take over the media. The president can arrest people without cause. Under a national emergency, Donald Trump can basically declare what amounts to military law and become the dictator that, in his dreams, he imagines himself to be.

That is scary. This horrible outcome does not happen overnight. The earliest invocations of the emergency powers may look a little bit innocent. But authoritarianism creeps. It doesn't always gallop. And when authoritarianism envelops us, it may be too late to turn it back.

In this moment, what gives you the most hope? What are you most afraid of?

I am most afraid of the fact that Donald Trump may not leave office peacefully, and that there will be no real transition to a new president. I worry that we are on a downward slide that has no foreseeable end. My hope is that we have survived things that seemed at least as scary, in terms of a civil war and World War II, and that the United States has gotten better.

What would happen if Trump refuses to step down and leave the White House if so ordered? That scenario is often discussed but rarely detailed.

I am  starting a research project examining that question. This is like looking into the face of Armageddon. I simply cannot tell you right now what it would look like. I do not think that Donald Trump would simply hunker down and say, "The Joint Chiefs are going to have to arrest me." Trump would be a little more subtle than that, stupid though he is. I think Donald Trump would declare a national emergency. He would find an excuse for one. If it looked like Trump was going to lose the 2020 election, he would declare a national emergency as well. This would all be catastrophically messy.