This op-ed is part of a series exploring what a second term would look like for either President Biden or former President Trump.
If nothing else, Donald Trump has proven himself resilient. There are enough clouds over his head to enshroud any mortal, yet he keeps coming back like a whack-a-mole.
He lost the 2020 election, and he is too delusional to admit it. He has been indicted on 91 felony counts, 44 federal and 47 state. He is a proven sex offender. He mocks dead soldiers as losers and blabs nuclear secrets. He has been found liable for charity fraud, bank fraud and tax fraud.
He is the subject of two gag orders, one in New York, which he has flagrantly violated, and one in Washington, which he is appealing, and has the temerity to argue that “No Court in American history has imposed a gag order on a criminal defendant who is campaigning for public office—least of all, on the leading candidate for President of the United States,” forgetting that he is the only “leading candidate” for president in history to have made statements threatening judges, prosecutors and witnesses while he was a defendant in a criminal case.
As the federal trial judge in Washington put it, “Mr. Trump can certainly claim he’s being unfairly prosecuted, but I cannot imagine any other case where a defendant is allowed to call the prosecutor ‘deranged,’ or a ‘thug,’ and I will not permit it here simply because the defendant is running a political campaign.”
He is facing a serious lawsuit in Colorado, testing whether he is disqualified from office under the Fourteenth Amendment because he participated in the Jan. 6 insurrection.
Yet, almost inexplicably, the latest polls show him leading Biden nationally by two points, making any political observer wonder how this “Teflon Don” does it.
Most lawyers I know say Trump has presented very little by way of a convincing defense to any of the lawsuits. He lost the election and knew it. His illegal efforts to hold on and usurp a second term and prevent duly elected President Biden from exercising executive power probably violated the “executive vesting” clause of the Constitution, providing that the president shall hold office “during the Term of four years.”
This clause requires that a first-term president who loses reelection to leave office. Distinguished scholars of the Constitution like Laurence Tribe and former Federal Judge J. Michael Luttig think that by seeking to usurp power beyond his four year term, he rebelled against the Constitution, thereby disqualifying himself from future office under the Fourteenth Amendment.
He said he wants to use the defense of good-faith reliance on the advice of counsel. But the “counsel” whose “advice” he will say he relied on are unindicted co-conspirators in the Washington case, and named co-defendants in the Georgia case. Moreover, one of those whose advice he once said he relied on was Sidney Powell, who has pleaded guilty in Georgia. Trump has trashed and disavowed Powell, now saying the she “never” was his lawyer. Quite a stretch to claim you relied on the legal advice of someone who is not your lawyer.
Trump’s strategy, largely unsuccessful, has been one of seeking to delay. He wants to put off his trials until after the November 2024 elections, making the big bet that if he is nominated and elected, most of his legal problems will disappear.
If elected, his two federal cases will likely go away either because he pardons himself or he orders his attorney general to drop the cases. There is some controversy among lawyers about whether a president can pardon himself, because, from time immemorial, the law has been that “no one can be the judge of his own cause.” Trump has said he wouldn’t do it because he had done nothing wrong, but just wait. If you believe anything he says anymore, there is a bridge in Brooklyn he may wish to sell you — after all, he needs the money.
Dismissal would require court approval, but it is a dubious proposition that a court will order a compliant attorney general to proceed with a case he wants to drop.
If Trump is elected, don’t count on an independent and principled Justice Department in the style of Merrick Garland. “I am your justice,” he told his followers at his first campaign rally. He already proposes to go far beyond the kind of Justice Department he had under Bill Barr, who largely did the president’s bidding. He has signaled that he would order a criminal investigation into President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.
He has stated that, if elected, he will require every federal employee to take a “patriotism exam,” presumably to see if they agree with his own interpretation of the Constitution, and will terminate them if they flunk. He has already said he will go after people who were his enemies, like former Chairman of the Joint Chiefs of Staff Mark Milley, whom he seemingly wants to execute for treason.
Anyway, Justice Department policy forbids prosecution of a sitting president, although this is not in the Constitution nor in any law enacted by Congress.
But these federal moves would not apply to the two pending state cases, either the one in New York involving the cover-up of the payoff to Stormy Daniels or the one in Georgia involving the RICO conspiracies to overturn the election. The president’s pardon power only extends to “offenses against the United States.” Three of Trump’s 18 co-defendants in Georgia have already pleaded guilty, and there may be more to come. But that case, like the New York case, will very likely go away if Trump is reelected, since it is unthinkable that a local district attorney can mount a criminal prosecution against a sitting president.
The most dangerous case, from Trump’s point of view should he be reelected, is the fraud case now on trial in New York. The Supreme Court has held that a president is not immune from civil liability for conduct that occurred before he took office that is unrelated to his presidency. The fraud case, brought by New York Attorney General Letitia James, alleges that Trump systematically defrauded banks, insurers and taxing authorities in his business by overstating his assets for financial reporting purposes while understating the same properties for tax purposes. If the New York trial judge has his way, Trump will most certainly be out of business in the state.
Trump says he wants to “terminate the Constitution.” To do this would require more than an executive order. But if the unthinkable happens and he regains power, we can say a fond farewell to the rule of law and to John Adams’s statement that we are a “government of laws, not of men.”
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.
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