While we are still waiting to see if the Special Counsel Jack Smith will indict Donald Trump for his role in the January 6 insurrection or for this misappropriation of secret documents, it isn’t unreasonable to ask ourselves why it is that the former President isn’t getting prosecuted for a wide range of other crimes that he has committed in plain view throughout and after his time in the White House.
Let’s first
see what the crimes are that we are talking about and then address why, at
least until now, Donald Trump hasn’t been indicted for any of them.
When we say:
“it’s a crime that…….” we don’t necessarily refer to an action that meets the
criteria of our penal code. We really mean to say: “this should have never
happened.” That’s what we are dealing with as we evaluate the Trump presidency
and the damage it has done to our democracy and our sanity.
The story of
the Trump presidency is how he has managed to run the office and business of
the Commander in Chief as the Godfather ran his criminal empire and turned it
into a fiefdom that only served his personal interest and ambition. The story
of the Trump presidency is one of lying, grifting, embarrassing America on the
world stage, undermining our institutions, and attempting to nullify the
constitution. The whole thing was one big criminal endeavor. Realizing this, it
makes us feel slighted and small if the only thing Trump will be held to account
for is his mishandling of government papers.
On the other
hand, we must realize that Al Capone was only convicted and put in prison for tax
evasion, although that was one of his least damaging criminal offenses.
It is a
crime that for the time of his presidency the White House has been run as a
subsidiary of the Trump enterprise, staffed with members of the Trump family
and other lackeys.
It is a
crime that he has used the office of the President for the benefit of himself,
his family, and his business that, as improbable as it may seem today, he was
never forced to separate himself from when he entered the Oval Office.
It is a
crime that he has been allowed to silence victims of his criminal conduct by
means of non-disclosure agreements and silence fees.
It is a
crime that his hostile take-over of the Republican Party has driven so many competent
and law-abiding republican office holders away from participation in our public
governance, people like Liz Cheney, Adam Kinzinger, Ben Sasse, Jeff Flake, Bob
Corker, Charlie Dent, Rob Portman, John Kasich, Pete Meyer.
It is a
crime that, as President, he has not taken the threat of Covid seriously from
the day the virus was identified, misled people with his advocacy of Clorox and
hydroxychloroquine as treatment, and denigrated, sidelined, and overruled the health
officials at the Center of Disease Control and other parts of the medical
community.
And then of
course there are the crimes that he has been impeached for twice, but for which
he was let off the hook by a partisan vote in the Senate.
As to the
reasons why, as of yet, he has not been held to account for these crimes, the
first explanation comes from the uniquely American principle that a sitting
President cannot be prosecuted for alleged criminal offenses under the theory
that the constitutional way to hold a President to account is by the process of
impeachment. Only after a President is removed from office can he/she be
indicted and prosecuted for a criminal offense. As an additional safeguard,
Trump made sure that at the top of the Department of Justice he had an attorney
general who had demonstrated to be willing to do his bidding.
The other
explanation comes from an uncertainty about the judicial process when dealing
with a (former) President of the United States. In America we like to say that
“nobody is above the law”, but do we really mean that? Trump lawyers will argue
that a President is immune from criminal as well as private suits and it is far
from certain how the current Supreme Court will respond to that argument.
Another argument goes that the animal didn’t change his stripes. When we
elected Donald Trump to be our President, we knew exactly what we were getting
ourselves into. He had made that abundantly clear in a two-year campaign
process and by his behavior as a real estate mogul and a media celebrity. Are
we now justified going after him when he did exactly what he told us he would
do and behaved exactly like he behaved all through his adult life and his election
campaign?
The final
explanation, and the one that Jack Smith and Merrick Garland are now chewing on,
is that it is no sinecure to obtain a conviction of a duly elected politician
who has managed to elevate himself to a cult like status from a ‘jury of his
peers’. In the first place, a cult leader has no peers and furthermore it will
be exceedingly difficult to get 12 randomly selected citizens to unanimously agree
on a guilty verdict for any crimes committed by someone who is the cult leader
of at least several of these jurors. Without a unanimous verdict there is no
conviction.
Maybe, the
crime is on us. It is a crime that America has allowed this deeply flawed,
corrupt, and dangerous man to hold the highest office in the land of the free. We
now must deal with the consequences of the Republican abdication of duty when a
large majority of Republican Senators twice refused to convict their President
for the crimes he so blatantly committed.
