#630 Musings Beyond the Bunker (Monday April 10)
Good morning,
I have been going around and around on the efficacy of the Manhattan District Attorney prosecuting the 30+ felony counts against former President Trump for hush money payments made some seven years ago in the 2016 election cycle. There are good arguments each way. While I believe Mr. Trump is guilty as sin for the alleged crimes here and elsewhere (known and as-yet-undiscovered), I continue to muse over whether this prosecution is the right thing to do.
On the one hand, no one should be above the law. If others are prosecuted for such crimes, then so should Mr. Trump. On the other hand, all of us should be careful about the prosecution of former presidents (or, for that matter, other elected officials). There is some risk that, in prosecuting Mr. Trump, we are opening the floodgate to other prosecutions in the future, which might be motivated by partisan politics. I tend to diminish this latter case, as I think it unlikely we will descend into this Robbespierrian (is that a word?) version of the French Revolution. Mr. Trump is sui generis and most of his supporters know it. Further, if the news leaks can be believed (and they certainly seem believable), most of the Republican leadership would love to be finished with him. The question is whether this is the best way to address the actions of Mr. Trump.
WHY NOT PROSECUTE?
My opposition to the prosecution is based upon several things:
1. The best argument I’ve heard is from a Republican friend, who notes that, just as “no one is above the law,” it also is true that “no one is below the law.” In other words, is Mr. Trump being tried simply because he is who he is? I worry about future prosecutions of political figures. I am told the Manhattan District Attorney has brought to trial similar cases in the past.
2. Is this the type of crime that is worthy of felony prosecution? I am not enough of a scholar in this area to render an opinion. That said, I note that not many people complained when former Senator and presidential candidate John Edwards was tried (and acquitted) of a similar crime, or when Mr. Trump’s aid Mr. Cohen was indicted convicted in a related case focused on this very matter.
3. My biggest issue is a tactical one. This clearly is not the most significant or consequential of Mr. Trump’s crimes. They include incitement to riot, trying to steal an election, and pressuring foreign leaders to do his political bidding, among many others. By being the first in a line of potential indictments, this weakest one “takes the lead” and, I fear, sets the tone for the martyrdom narrative that is central to Mr. Trump’s appeal to his base.
WHY PROSECUTE?
The best arguments for the prosecution include:
1. If this is something another person would be indicted for, then so should Mr. Trump.
2. Even if the above is a close call, the justification for the crime was of far greater importance. Lots of people cover up their marital indiscretions and even pay hush money. In this instance, Mr. Trump’s infidelity is well known. He seems unconcerned with that. The hush money was paid not to hide this from Melania. It was paid (probably from campaign funds) in order to sway an election. That information may well have affected people’s votes and/or turnout of his supporters.
THE ARGUMENT AGAINST, FROM THE ATLANTIC AND MITT ROMNEY
From Quinta Juricic: “The crimes Donald Trump is charged with are a strange fit for the drama and solemnity that ought to accompany the first-ever criminal charges to be filed against a former president. They concern payments allegedly coordinated by Trump to silence women who, in advance of the 2016 election, otherwise might have spoken publicly about their past sexual relationships with him. One of the women paid off is Karen McDougal, a former Playboy model; the other, Stormy Daniels, is an adult-film star…The whole business is pure New York–tabloid absurdity.”
Mitt Romney, the man who voted to remove Trump from office in two impeachment hearings stated a rational position against the prosecution, from a person hardly a friend:
“I believe President Trump’s character and conduct make him unfit for office. Even so, I believe the New York prosecutor has stretched to reach the felony criminal charges in order to fit a political agenda.”
THE ARGUMENT IN FAVOR (FROM THE SAME ATLANTIC ARTICLE)
“The case isn’t immediately connected to the survival of American democracy as is the federal investigation into Trump’s responsibility for the January 6 insurrection or the Georgia probe into his efforts to meddle in the state’s counting of the 2020 vote. It lacks the urgent national-security concerns posed by Trump’s ferreting away of classified documents at his Florida estate. And yet it would be a mistake to brush it off as unserious. The Manhattan case, in its own quirky way, underscores how profoundly unsuited Trump is for the office he once held and which he is now again seeking.”
ANOTHER PERSPECTIVE
I find Andrew Tobias’s blog to be among the most interesting perspectives out there on a variety of subjects. Sure, he is partisan (in these hyper-partisan days, who isn’t?!). But his arguments are thoughtful and well-reasoned. I urge reading this brief perspective, entitled “Two Questions for Jim Jordan, et al.”:
“…I have two questions:
If the Stormy Daniels expose had NOT been hushed up two weeks before the 2016 election, with early voting already underway, might Trump have gotten 77,745 fewer votes in Pennsylvania, Michigan, and Wisconsin?
That’s my first question.
I ask, because, as you know, all it would have taken for Hillary to win the Electoral College was for 38,723 Trump voters to have flipped blue. Not a lot out of nearly 14 million votes cast in those three states…
Some may think the Stormy Daniels story wouldn’t have affected the outcome, but I’ll tell you someone who thought it was worth $130,000 not to take that chance. (More than that, really, because to make Michael Cohen whole, after taxes, Trump apparently paid about twice as much — and he is not a man who parts with money easily.)
So as trivial as the porn star pay-off seems to Jim Jordan, et al, it’s not crazy to think that without it, Hillary would have been president and our third branch of government solidly progressive instead of right-wing.
So is Trump innocent of whatever he’s charged with today unless proven guilty? For sure.
But is it outrageous for a grand jury to think he should not be above the law? And for objective observers to think that paying off Stormy Daniels may have changed the course of human history?
I don’t think so.
And here’s the second question I’d put to those Republicans who think today’s indictment is an “outrageous abuse of prosecutorial discretion”:
Was it an outrageous abuse of prosecutorial discretion for Trump’s Justice Department to indict and imprison Trump’s co-conspirator?”
Certainly, food for thought…
FINALLY, THE ATLANTIC AGAIN
Wrapping up the whole mess for me, at least for now:
“This is, by now, a familiar portrait: a candidate, and then a president, obsessed with gaining and holding on to power at all costs, without any care for or comprehension of his obligations to the public, nor any commitment to play by the rules that bind everyone else. Such conduct speaks directly to Trump’s unfitness for office and inability to conceptualize anything outside of himself. I would not, personally, rank it as worse than seeking to overturn the results of a lawful election or attempting a coup. But it is disturbing all the same.”
IN CONCLUSION
Is this the right case at the right time? And even if it isn’t the right time, is the prosecution of the case important enough that the claims cannot be overlooked? It’s a tough call. We will learn more as the facts unfold and as more indictments appear.
THINKING FOR ONESELF
Thanks, Adam Torson, for today’s quotation:
“Either you think—or else others have to think for you, and take power from you, pervert and discipline your natural tastes, civilize and sterilize you.” –F. Scott Fitzgerald, from Tender is the Night
Have a good day,
Glenn