Not criminal is not good enough

What is the level of conduct that we should demand from our elected leaders? In recent months, we have learned about hush money payments made days before the 2016 election to hide allegations of extramarital affairs. President TrumpDonald John Trump Former US ambassador: 'Denmark is not a big fan of Donald Trump and his politics' Senate Democrats push for arms control language in defense policy bill Detroit county sheriff endorses Booker for president MORE tweets accusations regarding special counsel Robert MuellerRobert (Bob) Swan MuellerMueller report fades from political conversation Trump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony MORE and publicly weighs in on pending Justice Department prosecutions. Cabinet secretaries use their official positions to enrich themselves, their families, and their donors. Members of Congress on both sides of the aisle enjoy sweetheart land and stock deals based on nonpublic information, and they use taxpayer funds to settle sexual harassment claims. New examples are discovered on a regular basis.

President Trump was elected on a promise to drain the swamp. But two years into his term, these examples of jaw dropping conduct by our elected leaders in Washington are exactly what infuriates so many law abiding citizens across the nation who struggle to pay their bills, put their children through college, and hope to have something left for retirement.


As a former federal prosecutor, I am constantly asked whether these activities by our political leaders are illegal and punishable by indictment or impeachment. More often than not, the answer is that, while these activities may be unseemly and highly inappropriate, many of them likely do not constitute prosecutable violations of federal law. That is not to say they are justifiable examples of conduct, however, just that these activities approach the line of criminality but come short of crossing it.

This is not that unusual within our judicial system. Corporations are given the chance to pay fines without admitting guilt or having the actions of their employees declared illegal on a regular basis. Individuals found guilty of crimes can walk away with community service or credit for time served. It often seems there is a lack of accountability for bad behavior.

In Washington, this same discussion often devolves into a debate about how one could be fine with hush payments that may violate campaign finance laws, or tweets that could be construed as obstruction of justice, or a president who routinely tells falsehoods to the American people. But that question misses an important distinction. Just because conduct is not criminal does not mean it is remotely acceptable. We as citizens have to decide what we will and will not tolerate from our elected leaders.

When President Clinton was impeached for perjury and obstruction of justice relating to his relationship with a White House intern, there was little doubt that he violated the law. However, the debate focused on whether the punishment of impeachment and removal from office fit the crime of lying about a consensual sexual relationship. In that era before #MeToo, the public largely came down on the side of the flawed but otherwise successful President Clinton, the Senate ultimately voted not to remove him, and he completed his second term more popular than ever.

In the age of President Trump, we are possibly headed for the opposite situation. While anything could still develop from the special counsel probe and the various other investigations swirling around the White House, I remain skeptical that they will lead to a clear cut criminal case against President Trump. More likely, they will reveal a wide range of actions that, while not technically illegal, will be widely viewed as grossly inappropriate and far below what we should expect of the chief executive of our nation. We then need to ask ourselves what level of conduct we are willing to accept. In other words, is “not criminal” the best we can do?

Even if clear cut evidence of illegality is brought forth, the process of indicting and prosecuting a sitting president comes with a mountain of legal and logistical hurdles that could very well lead to a constitutional crisis. Impeachment, however, is an available political solution with a trigger threshold that our elected members of the House have to arrive at in their own discretion. The premature impeachment efforts of the newly empowered Democrats are likely to go nowhere. However, there will come a time soon when Robert Mueller will present the House with his findings. Lawmakers will then face some serious decisions as to how to proceed.

Democrats may be tempted to overreach and impeach the president on even the flimsiest of charges. Republicans, abandoning their prior outrage at the indiscretions of Bill ClintonWilliam (Bill) Jefferson ClintonBen Shapiro: No prominent GOP figure ever questioned Obama's legitimacy The Hill's 12:30 Report: Trump tries to reassure voters on economy 3 real problems Republicans need to address to win in 2020 MORE, may claim that nothing short of serious criminality will suffice. Or perhaps both sides will look at the evidence fairly, be consistent with their past positions, and prove that the system can work. Supporters and opponents of President Trump will differ strongly on where they come out on this. From my view, “not criminal” is not nearly good enough. The American people deserve better than that.

Joseph Moreno is a former federal prosecutor with the Department of Justice, a former staff member with the 9/11 Review Commission, and a United States Army combat veteran. He is now a litigation attorney with Cadwalader Wickersham & Taft. Follow him on Twitter @JosephMoreno.