This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The revelation this week that U.S. surveillance in 2016 had captured Russian officials talking about influencing Donald Trump's advisers might be an important piece of evidence in a growing chain that could lead to Trump himself. But there's another strong possibility: that Trump and even his campaign advisers were unwitting beneficiaries of Russian President Vladimir Putin's plot against Hillary Clinton. After all, if American intelligence was listening to the Russians, why haven't we been told already that there is direct evidence of collusion with the Trump campaign?
This matters because Trump's critics need to avoid putting all their eggs in the Russia basket and assuming the Watergate paradigm will inevitably bring him down.
History rarely repeats itself. When investigations by Congress and the special prosecutor come to an end, as they eventually must, the picture that emerges will almost certainly look different from the model of election-related dirty tricks leading to a provable cover-up.
It's genuinely outrageous that Russia sought to affect the outcome of the U.S. election, in ways that seem to have included trying to shape FBI Director James Comey's investigation of Clinton's email server. Carefully unraveling the steps of that act of war is entirely appropriate.
But if it turns out that the Trump campaign or Trump himself didn't play a knowing part in that sabotage, there is a substantial risk that Trump will claim his vindication proves he is fit to be president.
And that's the wrong conclusion to draw — because Trump has already committed a significant number of impeachable acts. Some, like trying to influence the FBI, have to do with the Russian investigation. But plenty don't — especially corrupt attempts to use the presidency to enrich Trump and his family, and abuse of power with respect to allegations of crimes against innocent people including President Barack Obama and former National Security Adviser Susan Rice.
Right now, with our attention focused on the steady "drip, drip" of Russia-related evidence, it's easy to think we are in Watergate mode — or as Sen. John McCain, R-Arizona, has said, that "we've seen this movie before." Trump's efforts to get Comey to back off his investigation further underscores the sense that there's a cover-up of an underlying crime.
But this is just a hypothesis, not a proven fact. We need to be careful not to make the assumption that the investigative process that begins with Russian efforts to influence the election will follow the same course as the Watergate investigation.
Like the Russian hacking, the Watergate break-in of the Democratic National Committee headquarters was an actual, known crime. What ultimately brought down Richard Nixon was the investigation that traced the burglars back to the Committee for the Re-Election of the President and the cover-up all the way to the Oval Office — that plus the White House tapes that proved the existence of the cover-up.
Yet the Russia investigation may not lead back to the president or even the president's men. Russia had sufficient motive to hack the Clinton campaign and try to shape the U.S. election even without coordination with the Trump campaign.
And you can almost imagine the crowing that will come from Trump if special counsel Robert Mueller's investigation ultimately does not show that he or his campaign staff knowingly collaborated with Russia. Trump will say not only that he's been cleared, but also that he's the cleanest and clearest president in history. No politician, he will say, has ever been subjected to such extensive scrutiny.
If that happens, Trump's critics may find themselves on the defensive, scrambling to remind the exhausted public that there were other reasons to think that Trump has committed high crimes and misdemeanors.
The solution to this potential problem is threefold. First, don't stop investigating or focusing attention on Trump's other forms of constitutional wrongdoing, from violations of the emoluments clause to impugning the free press and trying to distort the rule of law. There's a substantial danger that reports of these kinds of constitutional violations will start to seem ho-hum, commonplace and uninteresting — as in, "We already know that Trump does that stuff." It would be a historic error to allow fatigue to interfere with charting the less-spectacular high crimes and misdemeanors.
Second, don't fall into the cognitive error of assuming that the basic structure of the Watergate scandal will be repeated or the political error of thinking that the only way to bring down a president is if he's done what Nixon did. It would be convenient for critics if Trump's advisers colluded with the Russians and we could start asking what the president knew and when he knew it. Convenience, however, isn't a common feature of historical development. Trump can be impeached for other forms of wrongdoing even if it can't be shown that he knowingly participated in Russia's dirty tricks or tried to cover up participation by others.
Third, focus on the inherent badness of the Russian attack on democracy. Leave Trump out of it, for the moment, and ask yourself: What does it mean for the sovereignty of a democratic state if a foreign nation can intervene to shape the outcome of a close election?
Democrats and Republicans alike should be calling for consequences after the investigations are over. And in the first instance, those should be consequences for Russia, which we already know is a threat to the effective operation of democracy in the U.S. That will be true no matter what Trump did or knew.
- Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include "The Three Lives of James Madison: Genius, Partisan, President" and "Cool War: The Future of Global Competition."