Trump, the mugshot seen around the world, and progressive blather about the rule of law

We cannot say for sure if he is enraged, defiant, determined, or some combination of all three and more, but we can say that this is not a man who is going to walk quietly into obscurity, either in prison or otherwise, and likely with good reason given the underlying issues at play.

Last week, the entire world was transfixed by the rather absurd spectacle of a presidential motorcade, consisting of dozens of motorcycles, SUVs, and support vehicles, bound for Fulton County prison in Georgia for the processing of Donald Trump.  The media deployed helicopters and boots on the ground to capture startling video from the moment the former President landed at Atlanta-Hartsfield International Airport in his private jumbo jet to his departure a mere few minutes after arriving at the prison.  Inside, he was quickly finger printed, a mugshot was taken, and his bond was posted as everyone waited breathlessly for the mugshot itself to be released with many wondering what the point of all this truly was.  Even reliably anti-Trump CNN noted the overwhelmingly obvious, “The picture also begs a question. Why does the world’s most famous man, always under the sharp-suited gaze of Secret Service agents and who can’t even leave his luxury homes without a motorcade, need a mug shot? It’s not like he’s suddenly going to disappear – he flies around in a personal airliner emblazoned with the word ‘Trump.’ He could travel anywhere on Earth and be instantly recognized.”  Others noted that many indictments have been processed virtually since the pandemic, asking why this was necessary.   This comes as some ponder whether or not the most famous and recognizable person in the world is a flight risk.  The Progressive Action Network has a petition you can sign asserting that fact.  Politico has been pondering this question since October of 2020.  A district court judge actually claimed as much in an official legal document, writing there is “reason to believe that the former President would flee from prosecution.”  Overall, absurd barely begins to describe it, and yet Democrats insist all of this is necessary because the former President must be treated like everyone else and the rule of law is paramount.  As The Washington Post recently noted, “Fulton County officials had maintained that Trump, along with the 18 other defendants indicted in the case under Georgia state laws, would be treated just as any others would during their bookings — including being processed at ‘Rice Street,’ a nickname for the notoriously dilapidated Fulton County Jail. Leading up to Thursday, gamblers were placing bets on various aspects of the anticipated mug shot, from what Trump would wear to whether he would smile.”

The “rule of law” in general is a popular phrase in progressive circles in support of the record four indictments against the former President.  A few weeks ago, the aforementioned Post opined that “In Trump vs. our justice system, the rule of law is winning.  So far.”  Eugene Robinson proclaimed, “Donald Trump fought the law, and the law won…Despite all his huffing and puffing, Trump could not bully the justice system into granting him impunity. Like every other criminal defendant, he deserves and must be given the presumption of innocence. But like every other criminal defendant, he is being held accountable.”  Scot Lehigh, writing for The Boston Globe, claimed something quite similar, “Americans should ignore the partisan nonsense and put their trust in the judicial system.”  Special Counsel Jack Smith himself, who has charged President Trump twice in two separate instances, echoed these sentiments.  “We have one set of laws in this country, and they apply to everyone.  Applying those laws, collecting facts – that’s what determines the outcome of an investigation, nothing more, nothing less.”  House Minority Leader Hakeem Jeffries, who objected to the results of the 2016 election himself and proclaimed President Trump was “illegitimate” with no repercussions at least thirteen times, agreed, “The rule of law is central to the integrity of our democracy. It must be applied without fear or favor. To everyone.”  Democrat House Representative Adam Schiff, who infamously lied to the American people about having evidence of Russian collusion and who deceptively edited, and therefore falsified, important information before the January 6th Committee, is also on the rule of law bandwagon.  “Trump’s apparent indictment on multiple charges arising from his retention of classified materials is another affirmation of the rule of law.  For four years, he acted like he was above the law. But he should be treated like any other lawbreaker. And today, he has been.”  Meanwhile, The New York Times had its own spin on the topic, claiming that it was up to Republicans to ensure the rule of law was maintained by persecuting their own party leader, insisting that “Trump and his defenders are priming his supporters to reject our legal system.”

Left unsaid by everyone:  A President isn’t “everyone,” not by any means.  The Presidency itself is one of only a handful of government officials specifically identified in the Constitution as the head of the Executive Branch.  Most of the titles we throw around in the modern world, from Majority Leader of the Senate to all the various cabinet Secretaries, are all creatures created by their respective branches of government.  They have only the powers imparted to them by Congress or custom and those powers can be revoked.  They are also fundamentally creatures of Congress.  If Congress wished to ban the role of Secretary of State and eliminate the entire State Department it could do so with enough votes.  Likewise, Congress can pass any law to limit the powers of every individual in the Executive Branch, but they can do no such thing with the President.  Even those offices which are identified in the Constitution, such as the Speaker of the House or the President Pro Tempore of the Senate, are not imbued with specific powers except the Chief Justice presiding over an impeachment.  The President and his or her respective Vice President stand alone, being granted powers and prerogatives not reserved for simply “any other,” whether that other be a person or an entire branch of government.  There is no other role in the Constitution so clearly defined, or that so singularly uses the word “power.”  “The executive Power shall be vested in a President of the United States of America,” and “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.”  Elsewhere “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties” and “The President shall have Power to fill up all Vacancies.”  This does not mean he or she is above the law in any and all senses, but it does mean that the President is fundamentally different from the average citizen in any number of ways.

Of course, these specific ways are not always easy to define and have been the subject of some debate since the Founding.  For example, we can all agree that the President should be treated the same as anyone else if they are charged with murder, rape, assault, theft, and a variety of other what we might call non-political crimes, but in certain – or even many – cases the powers of the office fundamentally differentiate him from the average person, even other employees of government.  We might not be able to identify every instance easily, but we can certainly consider a few underlying principles that will guide us as instances arise.  First, Congress can pass no law, nor the Executive branch any regulation abridging a President’s authority.  Much has been made of the complex rules surrounding classified documents, their handling and treatment, but none of them actually apply to the Commander in Chief.  Should he or she want, they can appear on TV and broadcast the nuclear codes.  This authority is not reserved for anyone else and cannot be taken away by anyone else for any reason.  The recourse in the event a President should behave so recklessly is not criminal.  It is the political process of impeachment, a fact we were dutifully told over and over again while Donald Trump was in office, intended to deal with perceived bad behavior by the President.  President Trump, of course, is accused of mishandling these documents after he left office, but it could rather easily be argued that they were declassified simply by removal of them.  The President need not follow any process for this; indeed under the simple phrase in the Constitution, “the executive Power shall be vested,” cannot be bound to any process by definition.  Their will simply makes it so.  A panoply of legal experts will claim this is not the case, but what they won’t mention is no case like this has made it before the Supreme Court, where these matters are customarily decided and the few cases on record make it seem likely the Court will side with the Constitution. Similarly, it is entirely unclear if either the records acts that originally ensnared President Trump or the authority of the National Archivist can be enforced against a former President without intervention of a court.  Contrary to popular opinion, a former President is not entirely subservient to the will of an unelected bureaucrat with sole power to decide what constitutes a record and what does not.  The Constitution does not empower any bureaucrats at all and we can assume that no power is inherently vested in them to make these decisions on their own, certainly not a decision that automatically overrides a former President.  If a dispute were to arise, as it did so here, the proper venue for the matter is the courts, which under our system serve as an arbiter.  There is nothing at all in the Constitution that permits a current President’s Executive Branch to dictate absolute terms to a previous President for obvious reasons.  All Presidents, whether current or former, have their prerogatives and the idea that they surrender complete control over their records makes little sense given the President’s unique role in our government and the overall structure envisioned by the Constitution.

The indictments related to former President Trump’s claims of election fraud are not entirely the same, but even here we can see that there are differences between a President and the average person.  For starters, the average person is not running for the highest office in the land and will not be pursuing various legal strategies to object to election results.  It is not a scenario most of us encounter in our lives for obvious reasons.  Instead, these matters are inherently political, both political speech and the legal processes governing elections.  Of interest here, is that neither Special Counsel Jack Smith nor District Attorney Fani Willis have alleged that President Trump defied a court order,  stayed in office after the legally mandated transition, or forcibly changed the outcome of any official legal or election related proceeding.  Instead, they claim he wanted to and that he encouraged others to help him in this regard based on dubious legal grounds, but crucially, even if Vice President Mike Pence had refused to certify the election results as President Trump insisted, the decision would have been resolved by the courts as disputes over legal reasoning always are.  Vice President Pence would have objected, the Democrats would have sued over the decision, and the Supreme Court would render a verdict on the Elector Count Act. The election would not have been overturned as many are suggesting unless President Trump were to reject that verdict and defy the legal order established by our system of government.  We see further evidence of this in the oft cited fact that the Trump team lost in court dozens of times.  They did not, however, defy a single one of these decisions, meaning the objections unfolded within the legal process.  We might all agree that President Trump chose to push the issue further than Al Gore in 2000 or 2004, Hillary Clinton in 2016, and various state level candidates such as Stacey Abrams in Georgia itself in 2018, but these are differences of degree, rather than of kind and at all times, the former President ultimately adhered to the legally mandated outcome.

What we are left with is various attempts to strong arm politicians in Georgia and other states to follow his wishes, but politicians “strong arming” each other to get what they want is not unusual or illegal, up to including practically bribing them with pork for their districts as we saw during the debate on the Inflation Reduction Act, and neither is the pursuit of legal theories many find flawed as we saw in President Biden’s vaccine mandate conspiracy, student loan forgiveness, and various equity based initiatives that have all been struck down for running afoul of the law.  The idea that a President cannot advocate for a state to conduct a recount, investigate the outcome of the election, or encourage other officials to object to the outcome whatever anyone else thinks, either on his team or otherwise, is a gross limitation of their rights and prerogatives.  While some have ridiculously tried to argue that the First Amendment doesn’t apply in full to a President and that a President should somehow be limited in what they say, clearly the opposite is true.  The Founders couldn’t possibly have intended to imbue the Presidency with powers reserved exclusively for the office, then believe that same office should be muzzled when it comes to an alienable right, or that their own judgment does not supersede that of their staff, the media, or politicians of the opposite party.  There would be no point in a singular President if they were beholden to what others say. The only possible exception in the cases presented so far is the accusation that fraudulent documents were filed on behalf of false electors.  In my view, the identification of a replacement elector is not illegal – indeed Democrats pressured actual electors to illegally change their votes in 2016 – but it is possible the documents they filed could be considered forgeries.  At the same time, out of dozens upon dozens of charges across the Federal government and two states, this appears to be the only  obvious potential crime that a President could clearly be guilty of in the cut and dry sense outside of underlying Constitutional issues – assuming Trump knew about it and directed the action.  The court will ultimately decide if actions undertaken in public that did not fool anyone, nor were they intended to, constitute a forgery.

In the meantime, we are left with the mugshot itself, an image that instantly achieved iconic status, becoming one of the most recognizable in the world within a few hours.  Clearly, progressives were hoping to shame the former President, but they should have been careful what they wished for.  Trump, of course, has absolutely no shame, and instead of a disheveled, beaten, frightened man, the face that peers out at us is enigmatic and Sphinx-like, and perhaps not since the Mona Lisa’s smile, do we see such a potential mix of emotions.  The overall face is set in stone, the eyes looking directly at the viewer, boring into them with that effect that seems to follow the viewer from whatever angle they observe the image.  The set of mouth in a thin, uneven line suggests a fierce determination, but there is an unmistakable glower in the eyes belying a hidden anger and a desire for retribution.  We cannot say for sure if he is enraged, defiant, determined, or some combination of all three and more, but we can say that this is not a man who is going to walk quietly into obscurity, either in prison or otherwise.  Neither can we say how people in general will react.  Progressives had convinced themselves a mugshot would prove humiliating, and help convince the public the former President was on the wrong side of both the law and the history, but no one has ever seen a mugshot like this.  As even CNN’s Stephen Collinson noted, “But even if the national interest is truly served by multiple indictments of a former president, could the humiliation now being piled on backfire?”  I certainly have my own opinion, but on this matter and others we shall certainly all see in the near future.