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Jail To The Chief-- Or Is That Too Much To Expect?

Yesterday, the trial of conservative former French President and wheeler-dealer Nicolas Sarkozy began and ended quickly. One of his two co-defendents, the elderly judge he bribed, Gilbert Azibert, said he's too ill to stand trial and the trial was postponed until he can be examined.

Since the end of WWII it isn't exactly unheard of for French heads of state and heads of government to be charged with the crimes they committed in office. Nazi collaborator Marshal Pétain was sentenced to a death sentence that was never carried out. And more recently, Jacques Chirac was sentenced to what amounted to a stern reprimand. Sarkozy, though, is the first former French president to appear in court as a defendant.

Still, on his most crime-ridden day, Sarkozy never approached Trump on his least criminal day. And in an extensive essay yesterday, the NY Times Magazine asked a question many Americans are wondering: Can America Restore the Rule of Law Without Prosecuting Trump?

Biden would much rather move and and has said his presidency will be "time to heal," a disgraceful cop-out although perhaps one he feels he has no choice in. I'm sure Biden is fancying himself in the tradition of Abe Lincoln, who spoke in terms of binding up the nations wounds as the Civil War was coming to an end. There was almost no retribution and the traitors got off without much inconvenience, leading to another century of inhuman treatment of Black Americans and to a Trumpist base still mooching off the rest of us and still filled with grievance and violence. The South-- basically Trumpistan-- should have been allowed to go on its merry way. It still should-- after people in normal places like Austin, Nashville, Memphis, Birmingham, Dallas, Atlanta and Houston are rescued.

According to Jonathan Mahler, "Biden faces many daunting challenges-- mitigating the ongoing damage from the pandemic, repairing institutions, restoring faith in government-- but how to deal with his predecessor’s flagrant and relentless subversion of the rule of law is in many ways the most vexing.Last year, one of Trump’s lawyers, William Consovoy, memorably argued in open court that a sitting president could shoot a man in public and not be prosecuted. The legal validity of this claim notwithstanding, there is nothing to protect a former president from prosecution. No ex-president has ever been indicted before, but no president has ever left office with so much potential criminal liability."

No one is expecting the criminalization of policy differences, but that is hardly among the charges pending against Trump in federal, state and local courts. Today Trump continues to "bargain" for a blanket pardon by ostentatiously threatening a civil war, riling his millions of moron followers to not accept the election results and add to their all-consuming, never-far-from-the-surface grievances

Mahler pointed out that "The stakes of an indictment would be very high. The commander in chief’s broad powers under the Constitution could make it difficult to secure convictions. The damage to democracy that would be caused by a failed prosecution of a former president is hard to even fathom. An acquittal could also set back future efforts at accountability, and embolden aspiring abusers of authority. Even once he’s out of office, Trump is going to be a powerful force in the country’s political life; putting him on trial for his conduct as president would be tantamount to putting on trial the more than 72 million Americans who voted for his re-election. One institution that Biden will no doubt be focused on trying to rebuild is the Justice Department; prosecuting Trump could complicate any effort to restore the agency’s reputation for independence and integrity. There are logistical issues, too. Prosecuting a former president could mean convicting him, and the idea of sending a former president to prison does indeed seem fantastical."

Biden-- and millions of Americans-- may want to move on but Mahler asked "how does the country move on from a president whose disregard for the law has been so constant and pervasive? Every president seeks to exploit the immense power of the office, but Trump’s exploitation of this power represented a difference in both degree and kind. Never before had a president leveraged so much of the “energy” of the executive branch-- Alexander Hamilton’s word-- to advance his personal interests. Presidents Reagan and George W. Bush stretched the limits of their authority in the name of national security. Trump stretched the limits of his authority not just to enrich himself and his family but to block investigations into his personal and official conduct and to maintain his grip on power. Trump’s conduct as president was a product of his unique character. But it was also enabled by the office. The accumulation of decades’ worth of lawmaking, legal theorizing and historical precedent had given the president almost total freedom from accountability, rendering useless any seemingly applicable tool of law enforcement. Under the special-counsel regulations, the independent prosecutor who was charged with investigating the Trump campaign’s links to Russia effectively served at the pleasure of the Trump administration. The federal prosecutors who indicted Michael Cohen for an illegal campaign-finance scheme were bound to respect a decades-old legal opinion from the Justice Department asserting that the president-- who, according to Cohen, directed him to carry out the scheme-- was immune from criminal prosecution. There was nothing, and no one, to stop Trump from ordering numerous officials not to cooperate with his impeachment inquiry. Not that this mattered; Trump’s acquittal by the G.O.P.-controlled Senate was a foregone conclusion before the hearings even opened. One after another, Trump’s close associates faced charges for actions committed on his behalf, even as he walked through still more open doors, confident that as long as he remained in office, he was untouchable."

Mahler is correct when he asserted that Trump's criminal conduct has not been "a byproduct of the pursuit of a political agenda but as a central, self-perpetuating feature of his tenure. In this light, Trump’s potential criminality becomes a kind of throughline, the dots that connect his life as a businessman to his entry into politics and then onward across his four years as president. One potentially illegal act led Trump to the next: from his law-bending moves as a businessman, to his questionable campaign-finance practices, to his willingness to interfere with investigations into his conduct, to his acts of public corruption and, finally, to the seemingly illegal abuse of the powers of his office in order to remain in office. The stakes, " he reminded his readers, of prosecuting Donald Trump may be high; but so are the costs of not prosecuting him, which would send a dangerous message, one that transcends even the presidency, about the country’s commitment to the rule of law. Trump has presented Biden-- and America, really-- with a very difficult dilemma. 'This whole presidency has been about someone who thought he was above the law,' Anne Milgram, the former attorney general of New Jersey, told me. 'If he isn’t held accountable for possible crimes, then he literally was above the law.'"

Mahler divides Trump's criminal behavior into 5 categories: Financial Crimes, Election-Law Violations, Obstruction of Justice, Public Corruption and Partisan Coercion and explains them each at great length. I suggest you access them here if you want all the details.

I will leave you with this statement by Mahler though: "Trump’s singular relationship with the law, which long predated his presidency, was perhaps an inevitable consequence of his relationship with Roy Cohn during his formative years in business. It was Cohn who taught Trump that the law was not a set of inviolable rules but a system to beat and even work to your advantage, the most powerful tool in a businessman’s toolbox. 'I decided long ago to make my own rules,' Cohn told Penthouse magazine in 1981. (Trump later passed along one of those rules to his first White House counsel, Donald McGahn, when he told him, 'Lawyers don’t take notes.')... Trump had figured out something about the American system: You could solve a lot of problems with money, lawyers and a willingness to double down. This attitude led him, inexorably, toward business practices that tested the line of legality. After Trump’s financial struggles in the early 2000s made it more difficult for him to borrow money from established financial institutions, he sought partnerships with private individuals like the Russian oligarch Aras Agalarov, whom Senate investigators have linked to organized crime... Backed now by a constitutional theory giving him nearly limitless power, and an attorney general eager to implement it, Trump could test still more legal boundaries, leveraging his “unitary” authority over the nation’s foreign affairs for political purposes."

In the end, the dilemma over what to do about Donald Trump may be less about Trump than it is about the structural problems his presidency exposed. Trump may have turned the executive branch into an instrument for his personal gain and deliverance, but it was the country’s legal and political systems that enabled him to do it. And even out of office, he may still face no consequences.
In September, two former executive-branch lawyers, Bob Bauer (who served under Obama) and Jack Goldsmith (who served under George W. Bush) published an entire book, “After Trump,” addressing the subject of how to reform the presidency. They identified the many open doors that Trump had charged through and offered some 50 suggestions on how to close them, whether that meant rewriting existing laws or passing new ones. Among other things, they proposed requiring campaigns to report any contact with foreign governments and clarifying the obstruction statute to eliminate ambiguity about when the president has violated it. The one subject on which Bauer and Goldsmith couldn’t agree was what to do with Trump; they divided that chapter in half, with Bauer advocating for a full investigation and Goldsmith urging caution.
Even as I write this, Trump’s subversion of democratic norms continues. He still has not conceded, and Barr has overruled the head of the Justice Department’s Election Crimes department to approve investigations into “vote tabulation irregularities.” These legal maneuvers may be less about Trump trying to overturn the results of the election than they are about him trying to gain leverage to limit his liability when he leaves office. Even though Biden pledged during the campaign not to pardon him, Trump could still try to trade his concession for the promise of leniency. He could also try to pardon himself, though this has never been done before and may not hold up in court. (Another, probably more far-fetched scenario has Trump resigning so President Pence can pardon him.)
The nation may desire healing. But there is also the matter of justice, and there is no guarantee that what feels right now will look right through the longer lens of history. Ford was widely assailed for pardoning Nixon. But one of his most outspoken critics at the time, Senator Edward M. Kennedy of Massachusetts, later honored Ford with a Profile in Courage award, explaining that he’d been moved to rethink his views after witnessing the sprawling and protracted investigation into President Clinton by the independent counsel Ken Starr. It may be time to rethink Ford’s decision once more; it’s hard not to wonder if a Trump presidency would have been possible if Nixon had been criminally prosecuted rather than pardoned.
In that sense, the problem that Trump poses for Biden may also present an opportunity, a chance to repair more than just the damage of the last four years. To begin with, this may require recognizing that when a president brazenly flouts the law, electoral defeat might not be enough of a punishment. “There’s a mind-set that we need to reset,” Stephen Vladeck, a constitutional law professor at the University of Texas, told me. “Breaking the law is not a political difference.” It might also require recognizing that to really move on from Trump, “healing” may have to mean something fundamentally different from what it has in the past-- and that without accountability, it may in fact be impossible.

Also yesterday, Richard Hasen, also writing for The Times, noted that as a society and a nation our problems will deepen because Trump’s litigation strategy has led to the emergence of a voter-hostile jurisprudence in the federal courts. New judicial doctrines will put more power in the hands of Republican legislatures to suppress the vote and take voters, state courts and federal courts out of key backstop roles. "By the time President-elect Biden takes the oath of office, millions of people will wrongly believe he stole the election. At least 300 times since Election Day, Mr. Trump has gone straight to his followers on social media to declare the election rigged or stolen and to claim, despite all evidence to the contrary, himself as the real victor. Mr. Trump’s false claims will delegitimize a Biden presidency among his supporters. It should go without saying that a democracy requires the losers of an election to accept the results as legitimate and agree to fight another day; Republican leaders echoing Mr. Trump’s failure to support a peaceful transition of power undermine the foundation of our democracy. It’s not only the fact that we have had to say this, but that we keep having to repeat it, that shows the depths that we have reached... Trump has not admitted it, but he lost the 2020 election. His attack on voting rights and the legitimacy of our election system, however, will live far beyond his presidency. At stake is whether this country continues to adhere to the rule of law and to allow elections to be decided by a majority of voters."

Is there any hope for our country short of kicking the Moocher States (Trumpistan) out of the union and letting them go on their own miserable way? Luckily young people are listening to this guy, even if Biden and the Democratic establishment aren't.

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