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January 22, 2021
WN: George Conway knows American law and history, clearly has done his homework, and makes eminent sense–at least to one fairly deficient in the above! 🙂
In my Restorative Justice work, there was no substitute for accountability, however much the scales invariably tilt towards grace and truth (what Jesus introduced to justice over against mere “law”/legal norms/retribution). C0nway’s essay is a compelling case for Trump–likely for the first time in his adult life–to be held fully accountable for his marauding, victim-destroying narcissism.
To Conway’s assertion below, “Trump reportedly confessed to advisers that he was worried about being prosecuted.,” I reply emphatically: as well he might! Reading fairly objectively the article highlighted below might make most think similarly.
I can only at lease add: Amen!
illustration above: Doug Chayka for The Washington Post
As Trump himself well understands. Long-standing Justice Department opinions hold that presidents can’t be prosecuted while they are in office. Given that any such protection was temporary, some of Trump’s advisers believed that one reason he decided to seek reelection was to avoid criminal exposure. Indeed, in the weeks leading up to November’s election, Trump reportedly confessed to advisers that he was worried about being prosecuted.
Private citizen Trump stands stripped of the legal and practical protections against prosecution that he enjoyed during his tenure: constitutional immunity; a protective attorney general; a special counsel operating under self-imposed and external constraints; and the ability to invoke the presidency in litigation, even meritless litigation, to delay state prosecutors’ investigations. No longer will he be able to claim interference with his public duties, or to remove those who might allow damaging investigations to proceed.
Even before he incited the Jan. 6 insurrection at the Capitol, Trump had amassed an impressive slate of potential criminal acts — from before his presidency and during. His life amounts to a virtual issue-spotting exercise for any student studying criminal law.
All that already amounts to a lot of potential federal criminality. Even more avenues of investigation of Trump and his associates exist: conflicts of interest between Trump’s official duties and his businesses; his use of public resources and employees in support of his reelection campaign; his pardons of (and arguable dangling of pardons to) potential witnesses against him; his retaliation against witnesses against him; and his efforts to overturn the election results (more on that below). But even leaving these issues aside, there’s already plenty to investigate, and, quite possibly, to charge.
The question is whether to do so and, if so, how.
Even worse for Trump, as professor of criminal law Joseph Kennedy points out in Slate, is that the First Amendment won’t protect Trump from criminal liability premised upon his legal duty as president to stop the insurrection. As his White House counsel warned, Trump faces exposure because of the many hours during which he resisted repeated entreaties to stop the rioters. Again, everything depends on the facts. But we know a lot already. For example: Did Trump stand back and stand by because he thought the rioters he “loved” might actually succeed in blocking the electoral vote count? If the facts already reported are proved in court, a jury could easily conclude that he did.
In any event, Trump’s post-election conduct makes it impossible for the Justice Department to look away. If prosecutors don’t investigate and, if warranted, charge, this former president, then we might as well say that all presidents are completely immune from criminal consequences for their conduct — whether during their term or after; whether the conduct occurred before their presidency or while in office; whether it involves personal matters or public acts.
We might as well say, flat-out, that presidents are above the law.
Please click on: Trump’s New Reality