It remains an open question whether President Donald Trump will be impeached anytime soon, but conviction and removal from office by the Senate seems exceedingly unlikely.
However, wrote ex-federal prosecutor Renato Mariotti in Politico on Thursday, losing his bid for re-election in 2020 could be just as legally damaging for Trump — because once he does, the Office of Legal Counsel standard against indicting a sitting president would no longer apply and he could be charged as soon as 2021.
Such a scenario would be unprecedented in American politics. But, wrote Mariotti, any prosecutor would have a mountain of incriminating facts to work with, starting with obstruction of justice.
The most likely obstruction charge would surround Trump's attempts to force White House Counsel Don McGahn to fire special counsel Robert Mueller. "Very simply, obstruction of justice is when someone acts to undermine an investigation with the intent to do so, and there can be no serious question that firing Mueller would have curtailed the investigation," wrote Mariotti. "By the time Trump tried to fire Mueller, he knew the special counsel was also investigating him for obstructing justice. Trump tweeted about how he was under investigation a day before he tried to fire Mueller, and White House counsel Don McGahn warned Trump about his 'exposure' for obstructing justice."
Other potentially obstructive acts that could be charged, said Mariotti, include his attempts to make McGahn cover up Trump's attempt to make him fire Mueller, and ordering private associate Corey Lewandowski to deliver a message to then-Attorney General Jeff Sessions ordering him to end his recusal from the Russia investigation. They might also go after Trump's encouragement of former campaign chairman Paul Manafort to not cooperate with Mueller.
But obstruction is just the beginning of Trump's exposure.
"Federal prosecutors in the Southern District of New York told a federal judge that Trump directed payments (to women he had had affairs with) that were campaign finance crimes for which Trump's former lawyer Michael Cohen pleaded guilty," wrote Mariotti. "This does not necessarily mean that there is sufficient evidence to charge Trump — the statement by prosecutors operated under a lower standard of proof, and they would need to prove Trump's intent and knowledge — but it nonetheless represents a significant danger for Trump, given that their investigation is ongoing. There are numerous other ongoing federal and state investigations of Trump and his associates, from a probe of his inaugural committee's finances to an investigation of the Trump Organization." State charges, in particular, would be a real danger because a future president cannot pardon Trump for them.
Lastly, Mariotti pointed out, if the House does move to open an impeachment inquiry, there is every chance Trump could move to obstruct that as well — potentially creating yet more criminal liability once he is out of office.
It all comes down, Mariotti concluded, to whether Trump is re-elected, because the five-year statute of limitations for obstruction of justice means he couldn't be prosecuted if he wins another term.
"Winning the election might be Trump’s best path to avoid being charged with a felony," Mariotti said. "The 2020 stakes could not be higher for him."