DOUBLE JEOPARDY OR NO JEOPARDY?

More than 1000 former federal prosecutors have publically stated they would prosecute Donald Trump for obstruction of justice were he not President of the United States. Those former prosecutors made that declaration after Special Counsel Robert Mueller decided he couldn’t prosecute Trump because of Justice Department policy. That policy, stated in an October 16, 2000, Office of Legal Counsel (OLC) opinion, prohibits indictment of a sitting President. As long as Trump remains in office, no federal grand jury will hand down charges against him, regardless of the evidence that might otherwise compel such an action.

The OLC policy, which isn’t in the constitution, and a long standing American tradition against prosecuting former political opponents, could combine in assuring the government never prosecutes Trump for the acts spelled out in the Mueller Report. This circumstance carries broad and troubling implications for the rule of law in America. The OLC policy, and that tradition, could mean getting elected President provides a permanent get-out-of-jail-free card for seriously bad actors.

Trump’s Situation

Special Counsel Mueller found ten acts by Trump that might constitute obstruction of justice. Citing the OLC opinion, Mueller declined prosecution but specifically said, “while this report does not conclude that the President committed a crime, it does not exonerate him.” Any fair reading of the Mueller Report recognizes the Special Counsel would have indicted Trump but for the OLC policy. Mueller’s decision, therefore, leaves three options for dealing with Trump’s possible crimes: (1) impeachment and removal from office by Congress, (2) prosecuting him after he leaves office, or (3) letting him slide.

Impeachment, being the ultimate political act, may or

may not happen. No one  currently thinks the Republican Senate will convict Trump. Calls for Trump’s prosecution after his term ends have started, including from House Speaker Nancy Pelosi. The problem lies in that American tradition – we don’t prosecute former Presidents, no matter their crimes in office.

Twice in modern times, the issue has arisen of what to do, after he leaves office, with a President who has committed criminal acts. It also arose in a hypothetical scenario involving Trump and his 2016 opponent, Hillary Clinton. The way the issue has been handled in each case suggests we shouldn’t hold our breath for the possibility of Trump’s post-presidency prosecution.

The History

Richard Nixon resigned before the House impeached him and before the Senate likely convicted him. Out

of office, Nixon faced obstruction of justice charges and perhaps others. Before Special Prosecutor Leon Jaworski could charge Nixon, President Gerald Ford pardoned him for all offenses against the United States. By accepting the pardon, Nixon admitted guilt, but avoided indictment, trial, and possible jail time. Ford issued the pardon in the name of putting Watergate behind the nation, potentially healing America’s wounds. The pardon probably cost Ford re-election in 1976, but he may have achieved his objective of tamping down the furor over Watergate and helping the country move on.

Republicans in the House impeached Bill Clinton in 1998 over his affair with Monica  Lewinsky. The

Senate acquitted him, essentially determining sex isn’t a reason for removing a President from office. But, Clinton didn’t get off without a price. In what amounted to a plea bargain with Independent Counsel Robert Ray that avoided prosecution for perjury and obstruction of justice, Clinton accepted a five-year suspension of his Arkansas law license and paid a $25,000 fine. He also resigned from the U.S. Supreme Court bar.

The Nixon and Clinton experiences, for different

Nixon and Cllinton

reasons, cast doubt on the possibility of a post-presidency prosecution of Trump. Trump isn’t a lawyer, so he can’t forfeit a law license, but prosecutors might extract fines and business concessions in exchange for not indicting him. A Democratic successor probably won’t pardon him as Ford did for a fellow Republican, but he or she could find other ways of shutting down a prosecution.

The Tradition

In 2016, Trump mused out loud about the possibility,

if elected, of ordering that his  Justice Department prosecute Hillary Clinton over her e-mail scandal. Even Republican-leaning pundits decried such an action, arguing that bringing down the wrath of the criminal justice system on a former opponent better fit a banana republic than a country committed to the rule of law like the United States. It’s just something we don’t do, they said. 

Democratic 2020 Presidential candidates have been reluctant to endorse the idea of prosecuting Trump after he leaves office. They understand the precedent that could set. Prosecuting a former opponent, even one like Trump, opens the possibility of future politically motivated prosecutions for trivial or made-up offenses much more about settling scores than seeking justice.

And the Rule of Law?

Between the OLC policy, which some Democratic candidates say they’d change, and the tradition, it appears the rule of law could lose big. While he’s in office, Trump, if he’s not impeached and convicted, pays no price for his sins. Once he’s out, especially if its 2021 and the statute of limitations hasn’t run on his alleged crimes, his successor may not allow prosecution in the name of preserving our reputation as a nation that doesn’t permit prosecutions of former political opponents.  

So, when does a bad actor President get punished?  What do we mean when we say we are a nation of laws, not people, and no one is above the law? Do we still have the rule of law?  We’re going to have to answer these questions at some point, perhaps the sooner the better.  

THE PRESIDENT’S LIEUTENANTS

WORKING IN A SHAME FREE ZONE

It was a sad sight -- President Trump’s top aides, one by one,

shamelessly verifying his calm and stable demeanor after he stormed out of a May 22 infrastructure meeting with Democratic Congressional leaders. The spectacle made us wonder why Trump’s assistants stick with him when faced with such demeaning duty. We have no special insight into this, though all three of us formerly held formal or informal positions beside high level state political leaders. That experience provides a reference point for understanding what seems a humiliating assignment.

In considering why Trump’s top aides, many of whom strike us from afar as at least capable of rationality, remain loyal and will humiliate themselves, we offer three broad explanations. First, we suspect, some act out of self-interest; they care most about keeping their jobs. A second group may work in awe of the aura that goes with holding a White House staff job. Finally, some may have ideological reasons for their attachment to Trump and will pay any price for advancing that ideology, including serving a President who habitually lies and demands participation in, support for, and endorsement of his lies and other destructive behavior. 

Keeping the Job

We know little about the economic circumstances of Trump’s staff people. Though many of his cabinet officers are multi-millionaires, younger staff aides like news secretary

Sanders defending Trump anti-Jewish statement Mar2019

 (Click here to view ABC News video)

Sarah Huckabee Sanders often come from more modest situations. Having a White House staff job may represent a life-long ambition. For a person so motivated, even the likelihood of easily finding another job wouldn’t stop that individual from doing self-demeaning things that assure keeping the dream job.

Someone who grew up in      Republican politics, always hoping they could serve in a presidential administration, might have difficulty leaving a White House staff job, regardless of economic consequences or personal humiliation. For such a person, the question becomes, “How high do I have to jump?” We don’t know how many, or which, of Trump’s aides fall into this category, but we’re sure some must. We certainly saw such people in the political organizations in which we worked.  

The White House Aura

This idea resembles the previous one, but isn’t identical. We saw people taken by the majesty and prestige of working in a governor’s office, so we can only guess how strongly that might motivate in the White House. These people may not have even needed the job; they just wanted the ego boost they got from being around power and seeing themselves at the center of something important. 

We’re reminded of a scene in the very last episode of the award winning television series The West Wing. With the Bartlet Presidency over and a new President inaugurated, Chief of Staff C.J. Cregg walks out of the White House where she encounters a man and his young child. The man asks Cregg, played by Allison Janney, if she works at the White House. She answers, “No. No, I don’t.”  The man shakes his head in awe and says, “Must be something.” That kind of reverence undoubtedly motivates some people, allowing acceptance of even the kind of degrading experience Trump put his staff through after that infrastructure meeting.

Ideology

These people fall into two distinct groups but, conceptually, the

same thing motivates them. Eric Hoffer described them in his famous book, The True Believer.  They hold a rabid commitment to an ideological agenda and nothing else matters much. A single issue motivates some, while support for Trump’s general nationalist ideology drives others. With both groups, Trump’s behavior doesn’t matter, as long as he pushes the agenda.

All of us know people, conservative and liberal, who care so much about a given issue – or set of issues-- they’ll put up with anything

from someone who supports their position. That attitude lets evangelical Christians tolerate Trump’s sexual conduct, see, e.g., the Access Hollywood tape, in exchange for his appointment of

right wing judges they believe will curtail women’s reproductive freedom. We could list other obsessions – clipping the wings of the Environmental Protection Agency,  tax cuts, keeping immigrants out of the United States -- that might justify accepting otherwise objectionable aspects of Trump’s behavior.

Some see this as analogous to the left’s willingness to overlook Bill Clinton’s sexual transgressions and subsequent acts of perjury in the Monica Lewinsky scandal. Woodson finds the analogy applicable. Henry doesn’t, believing the harm Trump is doing to the country places his sins in a unique category. Rob also rejects the analogy, arguing Trump’s requirement that his staff publicly testify to his intelligence and calm demeanor fundamentally differs from the Clinton situation.

Whether or not Bill Clinton’s staff made a similar moral compromise as Trump’s, we recognize all three reasons we’ve offered might entice acquiescence by those in Trump’s orbit to his demands for public endorsements of his conduct. Our reasons are not mutually exclusive. One can want badly to keep one’s job while sticking around because of an ideological commitment; the aura that goes with working in the White House isn’t inconsistent with staying there for either of the other reasons. Regardless of why, Trump’s lieutenants must stand up and salute when the boss demands it, no matter how demeaning doing so appears. The current group seemingly follows his orders without shame. We all agree about one thing. The American public deserves more from its public servants.