[Updated March 31, 2023]
It’s finally happened. Former President Donald Trump was indicted. On a felony. In the state of New York.
There will be handcuffs (probably). There will be a mugshot, and a DNA swab. There will be an arraignment. And then, who knows what happens next?
Will it guarantee Mr. Trump the Republican nomination? Will this indictment permanently destroy the social fabric of our republic? Will it set a dangerous new precedent — that any politician who is despised is a target of future legal action simply because he (or she) has an abrasive personality?
Anyone who claims to know the long-term ramifications of this indictment is lying to you, and lying to themselves. But a few things are clear.
First, at least for now, it appears Mr. Trump is following his lawyers’ advice and is willingly turning himself in — staving off at least one new political crisis.
Second, again, at least for now, no mass protests have broken out on the streets.
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[Updated March 18, 2023]
On March 18, 2023, the New York Times reported that former President Donald Trump announced that his arrest was imminent.
To many, this is just another exercise in Lucy pulling away the football, and Charlie Brown is still falling for it. I, for one, will not hold my breath until I physically see the handcuffs on him.
To others, this represents an egregious abuse of state power — a political prosecution (or persecution) of an American Saint whose only “crime” was standing up to a “cabal of Satan-worshipers.”
There can be no reasoning with those people, and it is precisely those people that law enforcement is rightly concerned about. (And worse, precisely the people that Mr. Trump is trying to whip up into a Second Amendment worshipping lather.)
Thus, the point here is that upon learning of his apparently-impending arrest, Mr. Trump immediately took to social media to whip up his supporters into a frenzy — the same kind of frenzy that resulted in January 6th, and perhaps this time, worse.
But Mr. Trump does not care about the consequences this country will face in the wake of possible mob violence he is trying to incite for a second time. He could have just as easily released a press statement condemning the potential prosecution as political, based on false charges, and the like.
But instead, he called for extra-judicial action from his supporters through mass protests (and even though he didn’t say it, the same kind of violence that occurred at the Capitol). This shows, yet again, that this is exactly what he wants — Americans fighting Americans — and that his incitement at the Capitol was no accident.
It also betrays an incredible level of self-aggrandizing sociopathy that he would do this again, regardless of the consequences the first time around.
It shows not just his lack of respect for the justice system and the American people, but also that he has not learned anything from the events of January 6th. But he just cannot help himself.
But this time, the Republican Party gains nothing by continuing to stand by this man. There are plenty of viable candidates who can beat President Biden. Mr. Trump is damaged goods, and he has been for a long time.
Whatever short-term losses Republicans may feel by booting him to the curb will be offset by the enormous gains in credibility from sane, ordinary Americans who simply want this clown show to be over.
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The American president occupies a unique position among the governments of the world. He is neither a monarch, nor a minister. He is instead a semi-sovereign leader of a (theoretically) co-equal branch of government — the executive.
In this respect, a fair number of legal scholars believe in a “unitary executive,” i.e., “[A]rticle 2 of the Constitution evidently contemplated [ ] vesting general executive power in the President alone.” Myers v. United States, 272 U.S. 52, 135 (1926).
Others disagree. As one scholar critiqued, “the executive power is vested in a single President simply because the framers decided to have only one. And all legislative power is vested in our Congress and judicial power is vested in our Supreme Court and such inferior courts as Congress shall create. These are repositories of power. They are not sources of power. Nor do the three Vesting Clauses define the scope of the power of each branch in any way, shape, or form.” Vicki Divoll, Transcript: Eight Things I Hate About The Unitary Executive Theory, 38 Vermont L.R. 148, 149 (2013).
Some legal scholars take it a step further. They subscribe to the Nixonian view of things. To paraphrase it, “if the president does it, it’s not illegal.” Former President Trump (and his acolytes) clearly took this view. Mr. Trump believes that he was, in essence, a king during his four long years in office. And as the British are keen to say, “the king can do no wrong.”
Most certainly, the President has the power to forgive others’ wrongs against the United States — the Constitution gives the President the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. A 1974 Justice Department memo argued, however, that a self-pardon would collide with “the fundamental rule that no one may be a judge in his own case.”
So, what happens if the January 6th Committee presents such compelling evidence to the Justice Department that Mr. Trump committed crimes against the United States that the Justice Department seeks (and obtains) an indictment against the former President?
Well, we don’t know. It’s never happened. President Ford pardoned President Nixon before we could find out. Though President Biden has not yet made that move.
Here’s my take. My prior writings make my opinions about our former President perfectly clear. But it is something else entirely to subject Mr. Trump to federal criminal prosecution.
Just as Mr. Trump’s attempted coup nearly caused a constitutional crisis, the political crisis that would arise from an unsuccessful (let alone successful) prosecution of a former President by a Justice Department led by a person who a disturbing number of Americans believe was illegitimately elected is too ghastly to imagine.
Now, some might argue two points in response. First, protecting the rule of law, including the precept that no person is above the law, is worth protecting, even at the risk of short-term political unrest. Perhaps, his actions were shielded by some form of executive privilege? Or perhaps not.
Second, that it is important for our nation to create the legal framework necessary to prosecute a former President for crimes he committed while he was in office. While the severity of Mr. Trump’s crimes are debatable, the next (former) President’s may not be. Indeed, are too many currently unresolved questions about the scope of the President’s executive authority and his pardon power for comfort. It may be time for a test case.
Here’s my concern. The supposition that the unrest resulting from Mr. Trump’s prosecution would be short-lived is dubious. On the contrary, prosecuting him would turn him into a martyr. Consider briefly that Adolf Hitler was imprisoned for his attempted coup. The end result was that his power grew while he was imprisoned. And we all know how that eventually turned out — with a successful coup.
Now, as a matter of law, if Mr. Trump were actually convicted of a felony, he likely would be prohibited from running again. But that also scares me. His supporters could very well use that as an excuse for civil unrest — that Mr. Trump was “corruptly” prosecuted and they are justified in taking vengeance. Or, the person who takes Mr. Trump’s place is even more cunning and dangerous than Mr. Trump ever was, effectively implementing right-wing populist policies. Either way, at worst, we could see bloody low-level civil unrest would not only destroy the fabric of this country for a generation, but collapse America’s and the world’s economy in the process.
At best, we could see authoritarian populist uprisings across the country. And those who think that “moderate” politicians would stand firm to prevent such a result clearly haven’t been paying attention.
So, what does this all mean? That we are damned if we do and damned if we don’t? Prosecuting him leads to conflict, but not prosecuting him also leads to conflict?
I can’t yet say I have a firm answer to this problem. If I come up with one, I’ll write another post.
the irked moderate 