DONALD TRUMP’S LEGAL TROUBLES: CLOSING IN?

In late May news broke that Manhattan District Attorney Cyrus Vance, Jr. had impaneled a special

grand jury in his investigation of former President Donald Trump’s business activities. Since then, it has become increasingly likely Trump and/or his top executives could soon face criminal indictments. Reporting

indicates prosecutors have several Trump confidants in their sights, including his main money man, Alan Weisselberg.  Reportedly, Vance has targeted tuition payments the Trump organization made for Weisselberg relatives as potential tax evasion.

On May 20, New York Attorney General Leticia

James announced her office would also  investigate Trump. A Vance-James combination could spell real trouble for Trump. She has a reputation for aggressively prosecuting political figures.  

The prospect of indictments against Trump’s closest business associates, and even the former president himself, raised the prospect of what a criminal trial of a former chief executive would look and feel like. That inspired differing responses from the three of us.

 

Woodson: Action and the Matter of Process

Throughout his presidency Trump demonstrated 

repeatedly that he aspired to be an autocrat.

Congress refused to act. 

                         

Losing the presidential election Trump incited an 

insurrection. Congress refused to act. 

Trump is a clear and present danger to democracy. But Republicans continue to follow him. It now appears that someone will act.

                                      

Donald Trump’s criminal misdeeds may finally undo him. Prosecutors in New York seem to think they have enough evidence to criminally indict and convict him. 

In prosecuting their cases, they must be careful  not

to deny Trump – or even appear to deny him - due process of law and the presumption of innocence until proven guilty.

Due process and the presumption of innocence  are

fundamental rules of law in our democracy. Trump and his supporters will surely holler “foul” at the slightest provocation. The criminal proceedings must be meticulous, solid, and above reproach.

The prosecutors must demonstrate that they believe in the rule of law and not violate it in their eagerness to secure a conviction. If Trump behaved in any way in his business life as he has in public life, there will be plenty of evidence with which to criminally convict.

The prosecutors might want to take a page out  of

the playbook of Jerry Blackwell and Steve Schleicher, prosecutors in the Derek Chauvin trial. Let meticulous preparation and the rule of law be the order of the day.

 

Henry: Smoke and Fire

How does the American justice system handle a criminal defendant with 70 million loyal followers

who believe everything he says? That’s  the key question for me in contemplating the criminal probe of the former president now proceeding in New York. Since Trump’s 2016 campaign began a plethora of potentially criminal allegations swirled

around him – possible tax evasion, corruption in his foundation, alleged payoffs to porn stars with whom he supposedly had affairs, and

more. The list grows through the reporting on the current criminal probe. With as much smoke wafting in the air, isn’t there fire in the vicinity?

Then there’s the matter of Trump’s associates. The names have become familiar – Michael Cohen, Paul Manafort, Roger Stone, Michael Flynn, et al.  All have incurred the wrath of the law because of things that involve Trump. Could the boss have been innocent in each and every one of their cases?  

But, Trump was president and that makes this situation unique. Yes, Richard Nixon had a collection of criminals around him, but Gerald Ford pardoned Nixon. He was never prosecuted for his crimes. Many of his associates went to jail, but Nixon went about his business.  Joe Biden certainly isn’t giving Trump a pardon, so the system must deal with him, with the backdrop of his widespread public support. That’s new for America.    

                       

Rob: A Meaningful Moment?

As much as my Democratic heart flutters at the

thought of Donald Trump in an orange jump suit and the Secret Service figuring out the logistics of protecting a former president in the Big House, that prospect isn’t what intrigues

me most about Trump’s legal troubles. Whatever possibility exists he might be called to account for the crimes he may have committed is one of the best things that could happen to the United States.

As a lawyer, I agree about letting the process play out, trusting in the rule of law, and all that business. Trump enjoys the same presumption of innocence as any criminal defendant.  Having said that, the country’s legal system would benefit from tangible evidence that the law applies to everyone. Trump

avoided indictment in connection with the Mueller probe into Russian interference in the 2016 election because of the Justice Department prohibition on prosecuting a sitting president. We were told Trump remained subject to the law once he left office. Now, apparently, we’ll find out if that’s really true. It would do the country good to know that it is.

Politically, Trump has caused all kinds of mischief since he left office. He controls congressional Republicans who have taken unfortunate actions at

his behest, like blocking a commission that would have investigated the January 6 insurrection. Trump recently claimed he’ll soon be “reinstated” into the presidency, a ludicrous proposition. If nothing else, criminal indictments should occupy Trump’s attention, leaving him less time for such nonsense. Our politics will benefit greatly from such a respite.        

IMPEACHING A PRESIDENT: FOR WHAT WE ARE ABOUT TO RECEIVE

Now that the House Judiciary Committee has

approved two impeachment articles against President Trump, and a vote in the full House of Representatives impeaching him appears inevitable,  we ask, “What’s next?” The easy answer –  trial in the  Republican-controlled U.S. Senate –  only partly tells the story.

Impeachment could impact the 2020 election (or not). Americans may long debate this impeachment (or not). This might represent a watershed moment in American politics (or not). We find looking at the possibilities more intriguing than reviewing the tedious judiciary committee debate that brought us to this point.

Impeachment and the Election

Many Democrats who can’t stand Trump resisted impeachment as long as they did because they saw it negatively affecting the party’s 2020 chances. This theory found support in public reaction after Attorney General William Barr

Special Counsel Robert Mueller

exonerated  Trump upon release of the Mueller Report. Barr mischaracterized the Special Counsel’s work, something a lot of people now understand, but he set the narrative for a good while. In the short term, Barr’s bad faith spin doctoring set up Trump for spiking the ball and dancing in the end zone, proclaiming, “No collusion. No obstruction.” It seemed a Senate vote acquitting Trump after impeachment in the House might produce a repeat and give him big advantages next November.

Continuing the football analogy, upon further review, history doesn’t necessarily support that idea. Bill Clinton’s highest approval ratings followed acquittal in his impeachment trial but, arguably, Clinton'simpeachment fueled George W. Bush’s victory over Al Gore in 2000. At the

very least, it provided Bush a ready-made slogan about “restoring dignity” in the Oval Office, a thinly disguised shot at Clinton for having sexual relations with an intern in that very office.

Oval Office

The impeachment articles against Trump don’t accuse him of sexual misconduct, but the overwhelming evidence of his malfeasance in connection with Ukraine lets the attack ads write themselves. Arguments Republicans make in defending him are as flimsy as crepe paper in a hurricane. Trump should survive the Senate trial because enough GOP senators won’t defect. The American people may well play the role of referee and throw a flag for excessive celebration. In truth, only those long bamboozled by Trump’s act will see acquittal as a reason for voting for him. Impeachment, therefore, may not much affect the election after all.

The Debate

Many words got thrown around in the seemingly endless judiciary committee impeachment debate. We lived through the Nixon and Clinton impeachments. This seemed different and not in a good way. The result, both in the House and Senate appears so baked in, even political junkies might ask, “Why bother?”

House Democrats answer with the irrefutable contention that they couldn’t avoid impeaching Trump and still claim they’re protecting and defending the constitution, as their oaths require. Being lawyers, we get that.  Still, we all know how this movie ends. In the absence of an astounding

development none of us foresee, the House will impeach Trump on a party line vote with defections by four or five Democrats from districts Trump won, the Senate will acquit him with the only mystery being how many Republicans defect. The betting will center on whether a majority of senators vote for conviction, a possibility, given vulnerable GOP incumbents like Maine’s Susan Collins and Colorado’s Cory Gardner and Trump skeptics like Utah’s Mitt Romney who may join Democrats in voting for removal.

 

We fear this impeachment saga will not produce memorable moments. We won’t see brave, principled House Republicans bucking their party and voting for impeachment as seven did against

Nixon in 1974. Texas Congresswoman Barbara Jordan isn’t around, proclaiming her faith in the  constitution, despite its initial mal-treatment of her racial ancestors. In a few months, post impeachment political discourse probably sounds much like pre-impeachment political discourse.

 

An Impeachment Legacy? What Legacy?

                 

Trump, like Clinton, like Nixon, and like Andrew Johnson will now have impeachment in the first

paragraph of his obituary. But, with a president who has lied as much and committed as many offenses, many of them criminal, how much difference does that make? Is this a watershed moment in American politics or something else?

 

We can offer one unpleasant possibility. The legacy of the Trump impeachment may lie in the fact our hyper partisan politics means the nation can now never remove a president from office, no matter what that president does wrong. Republican support for Trump, in the face of overwhelming evidence of his corrupt conduct, suggests we’re stuck with misbehaving chief executives, no matter their sins. Democrats say they’d behave differently with the shoe on the other foot, but are we sure?

Unless the opposition party holds 60 plus Senate seats, an improbability if not an impossibility, no

president gets removed. It won’t happen unless the country so turns against the president, senators of that president’s party believe they will pay a higher political price for loyalty than turning the other way.

 

This situation, therefore, presents troubling questions for American democracy. Have we reached a point at which only elections can remove renegade presidents? Can a president with a loyal, dedicated base really shoot someone on Fifth Avenue in New York and get away with it? Do people so badly want their guy or gal in office that nothing else matters? Perhaps that’s this impeachment’s legacy, a discomforting thought, but maybe where we are.         

TRUMP’S TRUE BELIEVERS: WHAT THEY THINK AND WHY THEY WON’T CHANGE

As the impeachment story moves forward, evolving by the hour, we find the arguments offered by President Trump’s defenders increasingly outlandish, less and less effective but incredibly interesting. Polls show support for impeachment and conviction

growing in the wake of Trump's phone call with Ukrainian President Volodymyr Zelensky and a whistleblower complaint that produced Speaker Nancy Pelosi’s announcement that the House of Representatives had, in fact, begun an

impeachment inquiry. As the calendar turned to October, half the respondents in some polls favored Trump’s impeachment and removal from office. With the pressure ramping up, the number of Americans favoring impeachment and conviction will likely increase, not diminish.

Trump’s defenders kept spinning, despite being confronted by reporters, talk show hosts, and others who demonstrated their infidelity to the facts and the illogic of their conclusions. With the narrative about Trump’s actual conduct seemingly so clear, the interesting part of the story for us became how Trump and his people approached defending the indefensible.     

Three Lines of Attack

Though Trump’s backers offered a range of reasons why Congress shouldn’t impeach him, their main arguments fell into three broad categories: (1) Joe Biden did it too; (2) what Trump did was okay; and (3) attacks on the whistleblower who started all this with a complaint under established whistleblower procedures. The facts support none of these approaches to Trump's defense.

Several media organizations looked into the Biden-did-it-too claim and all turned up nothing. No evidence exists the former vice president improperly

used his office while promoting Obama administration policy. Along with European leaders, Biden advocated the ouster of a prosecutor because of his failures in investigating corruption in that former Soviet  republic. Additionally, no evidence surfaced that Biden exerted inappropriate influence related to the board position his son held with a Ukrainian company.

No basis exists for declaring the substance of Trump’s call to his Ukrainian counterpart

Phone transcript of Trump/Ukrainian call 

acceptable. Having already frozen U.S. military assistance to Ukraine, Trump asked for two “favors”:  (1) help with a probe into the origins of the Mueller  investigation and (2) finding dirt on Biden, the obvious conclusion being the

release of funds dependent on performing the favors. Anybody reading the White House-released notes of Trump’s call who won’t acknowledge those facts illustrates the old adage about no one being blinder than one who will not see.

Trump and his allies have railed against the whistle-blower, demanding the person’s identity, clearly a violation of U.S. law. This nation has had – for obvious reasons – laws protecting whistle-blowers since the 1700s. Now is not the time for abrogating those laws.

Why They Persist

We get Trump’s self-preservation instinct, hence his own defense of his actions and his personal strikes at Biden and the whistle-blower. That’s what we’d expect. Understanding why Republican members of Congress stay with Trump will become increasingly difficult as more information comes out and as public support for impeachment grows. Richard Nixon didn’t resign until his approval rating fell to about 25 per cent, putting Republican members of Congress in the position of choosing between Nixon and their own political survival. They chose at least trying to save their own necks, though the massive GOP losses in the 1974 mid-terms suggest only modest success in that endeavor.

What we find really intriguing is trying to figure out why ordinary Americans buy into

arguing on Trump’s behalf. In our discussions, we’ve suggested a number of reasons, most of them unflattering and we realize that’s not always fair and perhaps not enlightening either. Trump has found something in a swath of the American nation that allows him unwavering support from a significant part of the voting public.

One can debate the size of that swath, while recognizing its importance. Woodson, for

example, thinks its 40-45 per cent.  Rob thinks the rabid Trump base lies somewhere in the low 30s, with the rest of his approval rating coming from committed, baseline

Republicans and people who support some of his policies but won’t man the barricades for him. Henry thinks it falls somewhere in between. Since we usually

occupy space on the other side of the political divide, we need to understand the why of this.

Some of this, in all likelihood, resides in devotion to Trump’s positions on social issues 

like abortion and gay rights. We know Trump supporters so invested in assuring Trump’s pursuit of an anti-abortion, anti-gay judiciary, they cannot break with him for any reason.

For others, we think immigration produces the same dedication. Trump’s determination

to build a wall (or his latest scheme, construction of a moat with snakes and alligators) on the south-
ern border and his detention policies regarding immigrants generate so much popularity among some voters, they stick with him despite whatever bad act he’s committed.

Such explanations probably account for the attitudes of many Trump defenders and they aren’t changing. We think there are other  reasons we have not, and perhaps cannot, tease out, given our commitment to rules of reason and fact-based analysis. We can’t read documents like the notes of Trump’s call with Ukrainian President Zelensky and reach conclusions the facts laid out in that document don’t support.  

We keep searching. As long as Trump occupies the White House, understanding the why of the Trump phenomena will remain an important job for all who care about our politics and our democracy. Any ideas?