Defendant Trump?

Assuming, as pretty much everyone does, that Trump will lose the election, then what? No, not whether he gets a talk show on Fox or fills his presidential library with classic comic books, or merely slinks back to his Trump-branded hotbed motels with gold-plated toilets, but whether he ends up a criminal defendant.

On the one hand, to the extent a sitting president cannot be prosecuted for a crime, he won’t be a sitting president anymore, and is as indictable, and prosecutable, as anyone else. Whether there is probable cause to do so, either on a state or federal level, may be unclear, although ham sandwich, of course. But assuming there is a basis to prosecute Trump, should we?

Okay, look, even if you assume that a Trump prosecution will be better for the country than I expect, you do understand that it means turning a chunk of the Biden term into the Trump show, right? And also, will not help Democrats in 2024 any more than impeachment helped this year

There is no upside for Democrats. There is no upside for the country. There is no point where Republicans have an epiphany that They Collaborated With Evil. There is just the hope of a bit of personal revenge on a 74 year old buffoon who is already over. Revenge is very overrated

Will the coming year be a Biden presidency or a rehash of all the grievances of a Trump presidency? Granted, having spent four years dissecting and dismembering every foolish utterance, self-serving act and lie, it’s hard to let go. For many, hating Trump has become a full-time job, and not unprofitable. It would be hard to have to learn to code at this stage of their career.

But does it behoove a nation to take a Mulligan on impeachment? Does Joe Biden want his presidency to be all about Trump?

We need to know the extent of the damage done. Both to fix it, and to attempt to prevent it from happening again. And I’m far more worried about setting the precedent that presidents are untouchable so long as their own party controls the Senate.

Radley Balko makes a good point, that Trump exposed gaps in our system where no one would have believed a president would go before. Tax returns? Hatch Act violations by using the White House for purely political purposes? Emoluments? Trading arms for dirt? Whether these are crimes or just a president who never quite grasped that he wasn’t entitled to run a nation the way he ran his mom and pop real estate business, lacking the cognitive ability to formulate a mens rea that distinguished venal from ignorant, remains an open question.

Now that we’ve seen a president for whom basic norms of office meant little, do we need to identify the gaps and fill them with laws that won’t allow another president to do the same?

Radley doesn’t quite call for indictment, but rather identification of the problems and fixes. And his point about having a Senate too obsequious or fearful to do its duty and tell a venal president no is a good one. It’s not that the Senate didn’t realize what Trump was. They did, and said it out loud before he was elected. It’s that when Trump came into office, they bent their knees.

But there is also the hint of deterrence in Radley’s reply. If there is no consequence on the back end of a presidency for the commission of crimes, then what’s to stop the next venal president from abusing his power and office for his own benefit? Is it enough that Trump, the incumbent, was defeated by two-time loser and very old man, Joe Biden? Is that humiliating enough to Trump, for whom self-aggrandizement was one of his only two motivations? Will the threat of abject humiliation be enough for the next one?

What if the next one isn’t like Trump, knows how to work the system, has the good sense to not say the stupidest crap out loud on the twitters? Trump had the unusual characteristics for a president of being vulgar, amoral, deceitful and ignorant. The next one might merely be amoral and deceitful, and pull it off far better than Trump was ever able?

Then again, if we revisit Trump’s presidency in search of criminal conduct, or worse, “truth and reconciliation,” will we be able to move forward to address a nation’s problems, to give Biden the opportunity to put some meat on the bones of his empty platitudes, and do the job of President? Or will we have a daily dose of Gay?

The United States is not at all united. We live in two countries. In one, people are willing to grapple with racism and bigotry. We acknowledge that women have a right to bodily autonomy, that every American has a right to vote and the right to health care and the right to a fair living wage. We understand that this is a country of abundance and that the only reason economic disparity exists is because of a continued government refusal to tax the wealthy proportionally.

The other United States is committed to defending white supremacy and patriarchy at all costs. Its citizens are the people who believe in QAnon conspiracy theories and take Mr. Trump’s misinformation as gospel. They see America as a country of scarcity, where there will never be enough of anything to go around, so it is every man and woman for themselves.

Will Joe the Uniter, not Divider, be able to heal the divisions in this nation if Trump is on trial or Roxane can spend the next few years explaining why everything is just good or evil? Presidents cannot be untouchable, free to violate the law with impunity because there’s no one willing to stop them. But there will be no healing, no forward progress, if prosecuting Trump empowers the perpetually outraged to spend Biden’s one-term in office obsessing over Trump and the awfulness of their enemies. Is there a way we can defend the integrity of the office without Roxane Gay getting a weekly column in the New York Times?

53 thoughts on “Defendant Trump?

  1. Turk

    Regardless of whether Trump is prosecuted he will still find ways to be on the front page. The tabloids learned that in the 80s. He makes money for them by being outrageous.

    So trying to avoid next season’s Trump Show by non-prosecution Is likely a useless endeavor. The issue is not whether there will be a show — because he sure as hell ain’t going away — but what the plot lines will be.

    1. SHG Post author

      Are you familiar with the logical fallacy of begging the question? Trump may try, perhaps, but whether he will be on the front page or just a whimpering noise in the background, if at all, has yet to be seen. Unless you’re visiting us from the future, assumptive speculation like this doesn’t contribute much.

      1. Turk

        Oh please. Asking the media to ignore Trump and put him on page 12?

        He’s been doing this shit for 30+ years.

        He sells. He brings eyeballs. Revenue.

        You might as well be telling me to avoid chocolate.

        Ain’t gonna happen.

        1. Pedantic Grammar Police

          Trump may be the greatest self-promoter of our time. There is nobody who doesn’t know his name, and everyone either loves or hates him. Since the president’s job is to distract and entertain us while the real rulers run the country for their benefit, I think he was the best president ever. And, he saved us from 4 or 8 years of Hillary’s ugly mug and screeching voice on the TV. I’ll always be grateful for that .

          Will he parlay the presidency into a media empire (which I suspect was his intention all along), or at least a few more years of media attention? I wouldn’t bet against it.

          And no, they will not prosecute him. These battles between elite factions are all sound and light; there is nothing there. They are working together to get more for them and less for the rest of us, and sure, they fight over which faction gets how much, but it’s not a real fight. Do you think Trump was really hurting Vince MaMahon? Were they really mad at each other? This is a perfect illustration of politics.

  2. Michael Shapiro

    Mr. Vance, the NY county DA, Ms. James, the NY State AG, and many other state and local prosecutors (for example, Mr. Aronberg, the Palm Beach County State’s Attorney) may all have different ideas about the imperative of vindicating Trump’s alleged law-breaking versus the potential political shortcomings of such an undertaking. Indeed, some of them may actually take pride in not being deterred by “political” considerations. While the outcome of Trump’s impeachment trial was a forgone conclusion the outcome of a Trump criminal trial is not. If Trump and his namesake Organization committed fraud and tax offenses pre-presidency why should the spectacle of such a trial deter Mr. Vance?

      1. Michael Shapiro

        Indeed, that is the question. I question if a prosecutor should base her decision making about whether to proceed with well-founded charges of let’s say pre-presidency bank and tax fraud on a concern that such a trial would be a circus or (less likely) roil the nation. In actuality, a trial on such charges would, as they almost always are, be a rather dull affair.

        1. David Meyer-Lindenberg

          That’s a good point. Did the same reasoning lead you to support the federal prosecution of Hillary Clinton after she lost her election, over her apparent violation of federal records law, as called for every other hour by Mr. Trump? If not, why not?

          1. Michael Shapiro

            Wasn’t my call. Those whose call it was apparently didn’t think there was a case to be made.

    1. Nyx

      “Mr. Vance, the NY county DA, Ms. James, the NY State AG, and many other state and local prosecutors (for example, Mr. Aronberg, the Palm Beach County State’s Attorney) may all have different ideas about the imperative of vindicating Trump’s alleged law-breaking versus the potential political shortcomings of such an undertaking. ”

      More likely, they have different ideas about the political benefits to be reaped from prosecuting Trump – the media attention, the positive reaction from liberals, the potential to pivot from a high-profile case against Darth Cheeto to a run for high office. Individually, there is little risk and much to gain.

  3. John Barleycorn

    Admit it esteemed one, you are just not sure whether or not the Trumpites are capable of figuring out the nuances of Dick The Butcher’s famous line in Henry VI, are you?

    I myself would to solve this conundrum once and for all and as a bonus it might actually be the key to unlocking the “mystery” of the urban/rural divide, no?

    Besides the jury questions alone might in and of themselves redefine the entire concept of public education funding.

  4. MollyG

    We supposedly live in a country with the rule of law and politics should have no role in prosecutions. We should live up to that ideal and prosecute or not prosecute Trump based only on the evidence and law. I don’t want to set up a precedent that former presidents are immune from prosecution.

  5. phv3773

    If he gave over-optimistic appraisals to bankers, so what? The bankers style themselves as big boys, they get bad appraisals all the time, and if they got fooled it’s because they didn’t do due diligence.

    If the cheated on his taxes, some CPA said it was all OK. Pay back taxes and fines.

    But if you can prove he outright stole $500M from the government, then prosecute.

  6. Kathryn M. Kase

    Scott, I’m surprised you haven’t mentioned Nixon here. Are we better off as a nation for having his co-conspirators prosecuted but not him?

    1. SHG Post author

      I thought a lot about Ford’s pardoning Nixon. But I don’t think this is the same thing, and that we can draw any useful analogies from it.

    2. LocoYokel

      Aside from Scott’s statement that it’s not the same thing, I’m gonna go with “we don’t know”.

      Would a prosecution have been a big circus and shit show or would it have been a quiet, sober affair where a wrongdoer was properly held accountable under the law and life moved on? Without seeing some alternate universe where the prosecution happened we can’t know what the out come would have been (and then there would have been another alternate where it went the other way, still leaving us not knowing).

      I’m of the opinion that ending the division and hatred then reconciling and moving forward can’t be a bad thing so anything that impedes that can’t be a good thing. The correct path to get there is an issue to be decided but I doubt it includes repeatedly stirring the pot.

  7. Drew Conlin

    I’m reminded of your..” life plus cancer”.. the haters won’t be satisfied, that would be considered lenient. And like a dog with a buried bone the hater will dig up and gnaw on their revenge repeatedly.
    I’m not seeing any way prosecution does anything to promote the good of the country.

  8. miketrials

    Isn’t this sort of mealymouthed adherence to reasonableness exactly what has gotten the Ds into their present situation? “Reasonable” just doesn’t compute in American political life, it would appear. The Ds never ever have considered doing what the Rs now consider routine, see, e.g., Garland, Barrett, supporting a do-nothing administration during the pandemic and then refusing even to vote on a stimulus before the election, much like fighting a large enough stimulus after 2008, etc. etc. There appears to be no political cost whatsoever to the Rs, who didn’t lose a Senate seat and gained 6 in the House on Tuesday. Being reasonable doesn’t seem to get the D anywhere, just the job of cleaning up messes substantially caused by the Rs, like three major recessions in my lifetime, while the R yet remain a viable political vehicle regardless of their conduct.

    There appear to be pretty good federal cases for tax and bank and wire fraud against DJT, and against many of his underlings for a universe of other conduct. Tell the public you’re draining the swamp, that criminal enterprises like MS-13 and DJT belong in federal court. Accompany this with some other higher profile prosecutions of other white collar defendants, doing this nationwide and sell it to the public as something other than prosecuting their friends and neighbors in federal court for mandatory minimum drug crimes. Perhaps when the public sees the evidence in court under oath they will begin to see other things as well. As reasonable as Scott sounds, it smacks too much of surrender, and while I suppose I could live with that aspect of his post, I honestly I do not see how it will pay off in credit to the Ds. Of course, that last sentence may be the entire problem. Credit be damned, perhaps it’s time to change the form of D/prog/lib political discourse into something more like the R’s full-throated non-stop truth-be-damned attack on every front against the other side of the political divide?

    1. Rengit

      Here’s the tl;dr version:

      I’m reasonable, you’re not. Therefore it’s fair for me to be unreasonable towards you going forward.

      Can’t quibble with this argument at all. And outside of politics, I am almost certain this line of thought has a great track record saving millions of troubled marriages.

    2. phv3773

      You give the Ds way too much credit for reasonableness. They spent 4 years accusing Trump of crimes, about which they might have been right, but which, in the end, they couldn’t prove. And a D president would definitely have filled RGB’s seat before the election.

      1. SHG Post author

        Don’t make the same mistake toward the left as toward the right. There are reasonable and unreasonable people on both teams. The question is who you want to be, not the worst they have been.

    3. LocoYokel

      I guess that depends on what your definition of “reasonable behaviour” is. There are some who might disagree with you on who is being more unreasonable or if either side is and both just need a slap upside the head.

  9. Noel Erinjeri

    My guess is that Biden’s instinct will be to let Trump go. If he makes to the White House, he’ll have better things to do than dive into the mud with the Chief Pig and the little piglets like Giuliani.

    The New York Attorney General (or any other ambitious Democrat prosecutor), on the other hand, will try to make a name for themselves for when they run for governor, senator, etc.

    Good hunting to them–if he committed crimes, there should be consequences. Thank God for federalism.

  10. mike parr

    If Trump isn’t prosecuted then his supporters will continue believing in him, his lies, his conspiracies, etc. Biden will have a tough time anyway if the senate remains in republican hands and he may be further constricted after the midterms. Trumpism may be here to stay regardless but will definitely stay and even grow if nothing is done to show his supporters the truth.

    1. SHG Post author

      Whether his supporters cling to this loser is hard to say, but if they do, do you think prosecution won’t be viewed as persecution and further embolden them?

      1. mike parr

        I suspect this will all be a mute point anyway if Trump does as many have suggested he will do which is pardon himself of “any and all crimes” on his way out. All that will be left are NY state’s charges which would indeed have the appearance of persecution.

        1. Skink

          Please don’t come to a place filled with lawyers and judges and mistake “mute” for “moot.” It makes you stupider than anyone in the Hotel, including the stray dogs fed from the kitchen..

    2. Rengit

      Prosecuting people to make an example out of them in the hopes that you discourage others who share their politics and to establish “The Truth” is something most Americans associate with Warsaw Bloc countries, the Papal States, or tin-pot dictatorships. If he committed a true crime, then prosecute, but don’t do it because “he says bad and wrong things and people listen, we need to show them they are wrong and make them stop listening.”

      We have criminal trials all the time in this country where, even after the verdict is rendered, the convicted and their sympathizers swear by their innocence or the alleged victim says that the not-guilty verdict is illegitimate and the defendant got off on a technicality or by tricking the judge or jury. Not-guilty verdicts or dismissal of charges in cases involving police brutality have generated urban riots in many cities because “the system” is viewed as unjust. Why would a high-profile trial with massive political implications involving a former President not be subject to these phenomena?

  11. Jake

    Assuming there are crimes, would a poor and unconnected person who did the same get off with a mulligan because we’re concerned what accountability would do to the Biden administration?

      1. Jake

        Very funny. My point is, if you believe faith in the institutions of government is necessary to govern, then we must examine the practice of giving the powerful special rights and privileges.

        1. Pedantic Grammar Police

          Examining the practice? What would be the point? Of course we should stop giving special rights and privileges to the powerful, but how would it work? Isn’t power inextricably entwined with special rights and privileges? How would you separate them, and who would do it?

    1. Jim Cline

      I’m all for prosecuting him as long as they hold the trial on the Judge Judy show. Talk about ratings!

  12. Ken Hagler

    For at least twenty years we’ve been hearing partisan hyperventilating every four years about how the incumbent will declare himself dictator for life rather than leave office. It’s hard to think of a better way to turn that into a real danger than to start prosecuting former presidents for having been elected as soon as they leave office. Especially since this wouldn’t just be Trump–there’s plenty of other former presidents still alive for their political opponents to prosecute.

      1. Ken Hagler

        Oh, I do. Just four years ago Republicans were hyperventilating over the prospect that Obama would refuse to leave office, and I can remember them doing the same thing over Clinton. And of course the Democrats were hyperventilating over Bush Jr.. This may have been going on even longer, I just don’t remember it before 2000.

  13. KP

    Nobody mentioning the Bidens and Ukraine and china? Surely Sleepy Joe will have enough to hide to make sure he can’t be prosecuted in 4 years either… maybe he’d rather crush Trump first then change the laws.

    An interesting article pointed out that Trump exposed some very dirty sides of the Washington system and the main change will be that those in real power will want to make sure no outsider ever gets to be President again. I figure that will be the main focus of the political elites, not chasing an Ex-Pres.

  14. John Barleycorn

    The kids are in “no nut” November for reasons unknown and you are slinging, what is the word?

    Meaty final paragraphs that do nor track the intro and just land,

    Somewhere between cogent and the con of concise.

    Your aggregation layers and Twitter endorphins are soon to collide.

    You might get lucky, but I doubt it.

    P.S. pull something, seems push is not in the vocabulary? You are a wuss!!!

    Not an immediate wuss either. Less the oblivious opportunities.

    Just a wuss.

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