#534 Musings Beyond the Bunker (Wednesday December 14)
Good morning,
THE LEGAL CHALLENGES TO TRUMP
There is a parlor game going around now to the effect of “which litigation will do in Trump?” Well, not to disappoint you but I believe none of the current litigation will either (a) land him in legal peril threatening his liberty or financial empire, (b) neuter him politically (although, potentially, weaken him), or (c) definitively put an end to many corruptions and indecencies of this man. Further, the litigation will not end or diminish the forces of division, authoritarianism, racism, and disrespect for the law he has unleashed.
Trump’s ability to sidestep the law was a practiced and refined talent, honed over years in the business of hucksterism. His great strength in evading legal jeopardy for his actions, before his metamorphosis into a political figure, was the successful management of complex financial litigation against the relatively meager resources and stamina of regulators and prosecutors to beat Mr. Trump at his game.
Trump’s ability to withstand legal challenge is enhanced by several additional tools to avoid accountability:
Any litigation now is being fought in the forum of public opinion, as much as in the courts of law
Prosecutors are as concerned with not appearing political as they are in prosecuting the case
Time is on his side. Many of the causes of action that could nail Mr. Trump are complex, requiring a good amount of forensics (in the financial claims) and/or constitutional analysis (in the various conspiracy, collusion, and obstruction charges). Plus, some of these are quite difficult to prove in a court of law.
Good luck finding a jury that will convict. My bet is that, in nearly any jurisdiction, a juror or two motivated solely by their fealty to Mr. Trump, will find their way onto a jury.
As a former president, there is unearned deference and reluctance of prosecutors to take some risks. Because our times are so fraught, and because he is surrounded by a phalanx of lawyers, pundits, and media, with so much flak in the water, it will be difficult to indict, much less convict.
He has appointed a large number of the judges who may ultimately rule on legal theories propounded by his attorneys. To see the effect of a young Trump-appointed jurist trying to thread the needle to help Mr. Trump, one need only watch the logical gymnastics of Judge Cannon in finding executive privilege when one doesn’t exist in connection with the stolen government documents, and putting Mr. Trump’s reputation ahead of national security.
THE BEST CASE
So what’s the best case? I think this hinges upon three factors:
Prosecutor zeal and an accommodating system
Clarity of the cause(s) of action
The likely composition of a jury
No one of the cases provides an easy “trifecta” to victory.
On the first point, the New York and Georgia cases seem to have prosecutors willing to go the distance. The causes of action in both cases seem relatively straightforward. In the New York case, there are complex issues of financial manipulation of values and misleading of lenders. It will be hard to pin culpability on individuals, rather than the Trump organization, and tough to explain the damage caused by Trump’s actions. It would not at all be surprising to suggest that Trump gave false information to financial institutions but “it just didn’t matter” because these are big nasty institutions. Trump reorganizing his empire in Delaware will complicate any remedies. Getting a jury to convict will be a challenge, though not inconceivable.
The Georgia case is pretty straightforward in legal theory—did he attempt to thwart a legitimate election? This arguably is the strongest case, but it depends on such nuances as “did the instruction to the Secretary of State to ‘find 11,000 votes’ really meant that he wanted the State to act illegally?” Plus, Georgia has the most pro-friendly jury pool of these three venues (New York, Georgia and Washington, D.C.).
If there is ever a presidential pardon of Mr. Trump, it wouldn’t apply to these cases.
The federal cases lack the same prosecutorial zeal as seems to exist in Georgia and New York, as the FBI and the Justice Department have been made antagonists by Trumpists, for perceived bias and participation in the “deep state” conspiracy against the great leader. The federal government trying to maintain institutional integrity is something that will play into the willingness of these agencies to act, particularly given the claims that no doubt will ensue that this is a political, and not a legal, action. Here, however, is where the most prosecution-favorable jury likely will be found. And again, the question is one of intent. To wit, is Trump just a blowhard, admonishing his troops to fight like hell, or did he intend for them to act?
The case with the stolen records seems far more clear. Subpoenas were issued. They were ignored. Statements by lawyers professing to compliance were untrue. Government documents were discovered.
I believe Trump is guilty in each of these cases. But the challenges are obvious—proving a financial crime, proving he really wanted to change an election’s outcome, proving that he intended for violence to ensue. These cases should drain resources, time, and attention from Mr. Trump. But they will not slow his followers and they may actually allow Trump to gain support on the notion of his being “persecuted.” That said, a Grand Jury indictment is not the actions of a prosecutor, but the decision by independent citizens that a case actually has been made. This may give cover for those on the right to create distance between them and Mr. Trump.
While I hope the distractions will be significant, that public opinion may shift, or that Mr. Trump will be convicted, the Democrats cannot rely on any of this. They need to beat the “MAGA crowd” in the voting booth. To run in two years on an anti-Trump platform, rather than on their accomplishments and their policy positions, would be a serious mistake. No one is going to vote to “save democracy” a second time around. I’m guessing most of the rank-and-rile of voters see the actions of the right in limiting voting access and in gerrymandering not as an attack on democracy but as part-and-parcel for typical behaviors of elected officials and party faithful. They’re wrong, of course, but they’re the ones voting in key swing states.
Mr. Trump should be held accountable, as should his family and acolytes. The latter will be easier to nail down and have them face the consequences. Victory in this battle may not include justice for Mr. Trump in the traditional legal sense. And that might be good enough.
Have a great day,
Glenn
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