Has Trump beaten the system?
Senate Minority Leader Mitch McConnell (R-Ky.) said on the floor of the Senate that “President Trump is still liable for everything he did while he was in office. Didn’t get away with anything yet.”
“Yet,” McConnell repeated, with his index finger raised in the air, “We have a criminal justice system in this country. We have civil litigation,” he continued. “And former presidents are not immune from being accountable by either one.”
But most legal observers have concluded that Trump will probably not be indicted. Certainly no time soon. He may not even be sued successfully. Not for the 11 instances of potential obstruction of justice found by Robert Mueller. These have been dismissed by Trump’s lawyers as mere “process crimes” even though “process crimes” are against the law.
True that former Trump adviser Tom Barrack was just indicted in Brooklyn for process crimes in failing to register as a lobbyist for the Emirates. The conduct alleged, however, according to the indictment, was not to advance Trump’s interests, but constituted a “betrayal” of the former president.
Not for extortion in the Ukraine affair. There is too much uncertainty over whether dirt on the Bidens was “something of value,” and there is that pesky element of quid pro quo. Not for fomenting the insurrection of Jan. 6. There are constitutional issues, say the cautious lawyers. Unlike former Attorney General Bill Barr, current AG Merrick Garland knows who his client is, but also unlike Barr, he is apparently too timid to take a shot any time soon. He is not there to dispose of the issue as might a judge. He is there to be an advocate, not for the president, but for all of us.
So, no whiff of an indictment in the wings. Not even a grand jury subpoena to House Minority Leader Kevin McCarthy (R-Calif.) to get down Trump’s famous conversation with him on Jan. 6 as the insurrectionists penetrated the Capitol.
Little doubt that Trump would likely be convicted before a D.C. jury for inciting an insurrection on Jan. 6, leaving the constitutional issues for the appellate courts to grapple with.
Evidence of conspiracy is often circumstantial, gathered from acts, declarations and conduct. The iconic appellate judge Learned Hand famously called conspiracy “that darling of the modern prosecutor’s nursery.” The evidence against Trump for conspiracy to incite insurrection is overwhelming, and well known. Here, the prosecutor does not need to flip co-conspirators or interview scores of witnesses. Most crimes go down in the shadows. This one was caught on camera in plain view of the entire nation. The damming incontestable evidence is in Trump’s words, his big lies and in the obviously intended violent consequences of his actions.
Likewise, Trump is unlikely to be indicted in federal court for tax fraud. Manhattan DA Cy Vance has charged the “Trump Organization” and its chief financial officer with tax fraud. But conspicuously absent from the indictment is Donald Trump. Tax fraud would also be a federal crime. Yet, the independent Southern District of New York sits on its hands. Vance, like Garland, comes off as too timid to charge Trump himself.
McConnell also spoke of civil litigation. But Trump may not be held accountable for his libel of E. Jean Carroll. Garland has adopted the absurd position of Bill Barr that saying a woman who charged him with rape was “not his type” was part of his official duties as president. Because of sovereign immunity, Carroll may well be left without a remedy.
No one seems to have much of an appetite for holding Trump accountable. The filibustering Senate rejected a House resolution calling for an independent investigation of Jan. 6. Speaker Pelosi appointed a select committee to launch a House investigation, but if Republicans are able to delay the proceeding until the run-up to the mid-term elections, the inquiry will have the flavor of a political cabal. And, if the Trumpist Republicans take the House in 2022, as is widely predicted, the investigation will vanish into the dustbin of history.
Trump’s friends are off the hook. Roger Stone has been pardoned. So have some other of the former president’s men: Michael Flynn, Steve Bannon (indicted for defrauding Republican donors) and George Papadopoulos. All have been pardoned.
Absent a pardon, some of Trump’s friends may have flipped and given incriminating evidence against Trump. Barr testified before Congress that it would be a criminal act for the president to grant a pardon in order to prevent someone from giving evidence against him. Barr was right, but this transgression will also be ignored.
The Supreme Court has said that the president is not above the law, and this lofty principle has found its voice even in Trump-appointed justices.
But, in the real world, the wooden application of lofty principles is a custom more honored in the breach. Political prosecutions in this country leave a bad taste. After all, we are not a banana republic like Brazil, routinely imprisoning our former leaders. But, as Laurence Tribe, the renowned professor of constitutional law at Harvard Law School, points out, we become a banana republic if the president is not held accountable under the law.
From all that appears today, McConnell simply engaged in a shell game, kicking Trump’s liability over to the courts. Nothing much is likely to happen to bring Trump to book. What McConnell saw as his accountability will have to be judged in the court of public opinion.
James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of “Plaintiff in Chief—A Portrait of Donald Trump in 3500 Lawsuits.”