Nothing New – Presidential Jailbait

 

“There is no question that President Trump is practically and morally responsible for provoking the events of that day [Jan. 6th attack on the Capitol]…The people who stormed this building believed they were acting on the wishes and instructions of their President… Indeed, [pre-Civil War Supreme Court Associate Justice Joseph] Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were ‘still liable to be tried and punished in the ordinary tribunals of justice’… We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.” 

GOP Senate Minority Leader, Mitch McConnell’s address in February of 2021 after the Senate’s failure to convict Trump after his second impeachment.

"The only crime that I have committed is to fearlessly defend our nation from those who seek to destroy it.” 

Donald Trump at post-arraignment speech in Mar-a-Lago

“It’s politically motivated,” and it often is. Forget about the untold numbers of governors (hey, Illinois!), legislators (Ted Stevens International Airport in Anchorage, Alaska still bears this disgraced senator’s name), mayors, city council members, law enforcement officers at every level, also picture the national leaders, from the cruelest (Adolph Hitler) to the most people-friendly (Nelson Mandela), whose rise to the top was preceded by years of incarceration. But charging and convicting a head of state in developed democracies, Americans would be shocked to learn, is not that uncommon.

One of the greatest flaws in our Constitution is the underlying assumption that those elected to the highest national office, as well as those appointed to the highest level of judicial power and confirmed by the US Senate, would always be “men of integrity” (now “people of integrity”). The United States Supreme Court, that until recently, had absolutely no ethical rules is evidence of this assumption. In the last few weeks, the justices have imposed minimal disclosure requirements on gifts and travel benefits they receive. No consequences, just standards. Members of that Court must go through the same impeachment process – which our Founding Fathers believed would be free of partisan polarization – as the president, to be removed from office. Every other federal judge has a strict body of rules that govern their behavior. Not the US Supreme Court.

But for those heads of developed democratic countries, who are charged with crimes while in office or after they have left office, only in the United States is there a fairly strong undercurrent that such individuals are indeed somewhat above the law. Where that leader has pardoning power, questions arise if that leader can pardon him or herself.

We watch as some heads of state, notably Israel’s Prime Minister, Benjamin “Bibi” Netanyahu, are willing to bring their country to the brink of civil war to tame their judicial systems by submitting their decisions to majority legislative votes. Bibi has an uncanny ability to keep getting reelected even with criminal charges pending against him. With his rightwing control of the Knesset, Netanyahu sees a path to negate his current prosecution for bribery and corruption. See also, my March 26th Oy... blog. Netanyahu would seem to be following former Israel PM, Ehud Olmert, who was convicted of breach of trust in July 2012, and of bribery in March 2015. In May 2015, Olmert was sentenced to six years in prison, but his sentence was reduced to 18 months in December 2015.

The March 31st Axios lists just a few recent heads of state who have faced criminal convictions after they have left office. “Former French President Nicolas Sarkozy had his home searched after leaving office. He was convicted in two separate cases in 2021 and sentenced to prison (he's appealing)… In South Korea, former President Park Geun-hye was sentenced to 24 years for corruption. She was pardoned by her successor in December 2021 after serving five… In Taiwan, former President Chen Shui-bian was convicted of bribery in 2009... Former Italian Prime Minister Silvio Berlusconi has been in and out of court for three decades and was temporarily barred from seeking office due to a tax fraud conviction, but remains a player in Italian politics at 86.” In less developed nations, Axios adds: “[T]he region where the most countries have jailed or prosecuted former leaders over the last two decades is Latin America. In Peru, every president but one who served between 1985 and 2018 has been arrested or charged.”

Writing for the April 4th Los Angeles Times, Tracy Wilkinson notes that… well… the United States is different: “Around the world, numerous former heads of government have ended up in the dock and often behind bars, in democracies young and old… “Luiz Inácio Lula da Silva was inaugurated as president of Brazil on Jan. 1, about three years after he emerged from spending 20 months in prison. He was convicted of money laundering and other corrupt practices during his earlier term as president, from 2003 to 2010… Not only was a former president prosecuted and sent to jail, but being an ex-con did not prevent him from seeking election again. (Brazil’s high court eventually annulled his conviction.)…

“It seems the United States is almost unique among democracies in that it treats its former presidents with kid gloves. Other democracies do not afford their leaders the same level of near-immunity that U.S. tradition does. Experts say this is due in part to a U.S. need to invest stability in the viability of its leaders… However, never before Trump had a chief executive routinely flouted norms.

“‘We’ve been very lucky in the U.S. to rarely have presidents who have exhibited such blatant disregard for the law,’ said Mark Schmitt, director of the political reform program at the New America think tank in Washington… The exception, he noted, was Nixon, who was forced to resign but pardoned by his successor, Gerald Ford, before any indictments could be handed down.

“‘We’re not so much ‘averse to accountability’ as lucky, but there may be some features of our system that might help with that, such as the nonpolitical civil service and the nominal independence of agencies such as the Federal Reserve,’ Schmitt said…. Trump supporters have expressed disbelief at the Manhattan grand jury decision to indict the former president, who was impeached twice while in office… The former president’s allies have maintained that indicting him is ‘un-American.’ And in some ways, up until this point, it has been.” Trump’s base seems to have grown even closer to their idol, as Trump’s post-indictment fundraising reflects.

Personally, regardless of the 34 charges in the NYC indictment (all related to false record-keeping to protect Trump’s persona as a candidate), I think starting with pre-presidential term events, irretrievably linked to paying off a porn star (and a Playboy centerfold), is beyond weak. It lends credibility to the notion of a political prosecution. We have so many other charges that stem from unlawful presidential conduct during and after Trump’s presidency – serious incidents of probable misconduct at the highest level, bordering if not crossing the line of a mounting de facto (de jure?) coup d’état. Because of more procedural alternatives in New York State courts, the ability to challenge and delay a trial is vastly easier than is available in federal courts. Thus, assuming federal indictments, possibly joined by a serious election interference prosecution possibility in Georgia, it is unlikely that the NYC case would be the first to trial. But we should have done better.

I’m Peter Dekom, and I would hope that this criminal effort in NYC does not taint or minimize the probable additional, and more serious, Trump indictments we expect in the near future.