Trump’s immunity to the laws of political gravity and legal exposure, potentially

Time is the only tell whether Trump can continue defying the odds, but by now, no one should bet against him and love him or hate him, all of us have the proverbial front row seat to history in the making.

Earlier this week, former President Donald Trump won the Iowa Caucuses so convincingly that even his detractors had to admit his phoenix-like rise from the political ashes was astounding.  As CNN’s Stephen Collinson put it, “Former President Donald Trump’s huge win in the Iowa caucuses on Monday enshrines one of the most astonishing comebacks in American political history.  Losing one-term presidents almost never mount subsequent successful primary campaigns, much less pull off landslides that demonstrate utter dominance of their party.”  The former President somehow more than doubled the margin of victory for any previous winner, racking up more votes than second and third place combined by an incredible 10 points, and cleared the 50% mark for the first time ever.  Moreover, his victory was across the board, winning every county except the seat of Iowa City.  For a man that has been declared politically dead more times than I count, including the fateful day of his announcement speech in 2015, across two impeachments, and 91 indictments, there are few words to describe his re-ascension as both the prohibitive Republican frontrunner and competitive general election candidate.  This is even more surprising given the endlessly pontificating about how someone must emerge to contest him, suggesting implicitly that Republican voters wanted a test.  The result was a merry-go-round of potential runners up (note to Governors DeSantis and Haley, getting trounced by almost three times the number of votes does not punch your ticket to anywhere except oblivion), and near infinite variations of goal setting to see if the former President was actually as strong as the polls indicated.  Vox.com, for example, claimed “If Trump underperforms polls — getting around 40 percent or lower, or having another contender come surprisingly close to him — he will be deemed a ‘loser’ of Iowa even though he won because the results showed his support looking less rock-solid than expected.”  The results of the first contest are now in, and to say we haven’t seen anything like it in our lifetimes – indeed across all of United States history – is another early candidate for understatement of the year.  It’s more dramatic than that.  It violates the laws of politics so thoroughly, most pundits would have declared it impossible a year ago, but – so far at least – the former President appears immune to any and all notions of political gravity and only time will tell if that holds through November and his anticipated rematch with President Joe Biden.

Ironically enough for a politician maligned in much of the mainstream media for supposedly telling more lies as President than anyone in history, much of President Trump’s enduring support in the Republican Party can be attributed to basic trust.  All politics is essentially personal.  A politician can run on whatever platform they like, make whatever promises they believe will appeal to the masses, and take any position they feel will be most advantageous, but if voters don’t believe they will do what they claim and have their best interests at heart, they will not be successful.  For all of the former President’s flaws, conservatives, especially rural, blue collar, and less educated individuals, believe Trump is their champion and have done so for almost nine years now.  In my opinion at least, they have reached this conclusion for two reasons.  First, President Trump radically changed the terms of the debate within the Republican Party and then the Republican Party itself during his first campaign for the Presidency in a way that speaks directly to the concerns of these voters.  He made immigration a central issue, rejecting the calls for amnesty that have dominated the party since George W. Bush if not earlier.  He likewise rejected the establishment belief that any and all globalism was a net benefit to Americans, directly addressing voters who have seen their jobs disappear overseas for the past several decades and counting.  Lastly, he applied the same principle to our penchant for never ending foreign entanglements, promising to end never ending wars and not engage in any new ones.  You can take issue with one or all of these positions, but that doesn’t change the reality that the former President totally changed the party.  Second, Trump fought for all of these positions and more, including a conservative remake of the Federal judiciary from his first day in office to his last.  These fights might not have been pretty.  He might not have always been successful, but his supporters know he fought and respect the effort.  This is why Evangelicals still stand behind him even after he’s promised to make a deal with Democrats on an agreeable window where abortion would be legal.  It’s also why voters still choose him as their top candidate on immigration, even though he was not able to build the complete wall, much less make Mexico pay for it.  Crucially, voters can be right, wrong, or indifferent, but it seems obvious to me this is what they believe and why none of the other candidates were able to make any inroads.

Unfortunately for the once and would-be future Chief Executive, President Trump faces far more than mere political challenges this year.  As his electoral comeback unfolds, he is simultaneously charged with over 90 counts at both the federal and state level, enough that he could conceivably be sentenced to hundreds of years in prison – even if he prevails in November.  The result is a sort of split screen election, where the former President fights for his political future in one window and his legal future in another, making him the first candidate in history to appear in both a courtroom and a campaign rally on back to back days, if not the same day.  As Mr. Collinson noted in his analysis of Tuesday’s victory, “But the ex-president’s rebound is more stunning for another reason. He won despite 91 criminal charges and other legal entanglements that threaten his freedom and his fortune. In a head-spinning snapshot of the unprecedented times, he’s expected to show up in a courtroom in Manhattan on Tuesday morning for the opening of a defamation trial.”  Contrary to the conventional wisdom, however, it is quite possible, if not likely, that a different form of immunity might prevail here, eliminating or reducing most, if not many, of the charges.  President Trump’s legal team was, in fact, in the United States Court of Appeals last week making this case, much to the chagrin of the mainstream media.  At issue was whether the President can be charged for his actions attempting to overturn the 2020 election, as Special Counsel Jack Smith has done.  The charges include conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.  The President, however, is asserting that he was carrying out the duties of his office, as Chief Executive Officer of the United States, sworn to uphold the laws regarding our elections, and therefore he cannot be prosecuted for performing this duty as he saw fit. Needless to say, the media was immediately skeptical, calling President Trump’s position, downright dangerous.  The Portland Press Herald, in fact, described it as both “ridiculous and dangerous.”  Much of this consternation is driven by the former President’s claim that he enjoys “absolute” immunity for all actions taken while in office – unless he is both impeached in the House and convicted in the Senate, and to be sure, the judges on the Court of Appeals were skeptical of this broad claim.  “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” noted Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush.  Personally, I found some scenarios to be rather far-fetched, such as whether the President can order a SEAL Team to assassinate a political rival.  At the same time, two things are clear.  First, that the President is invested with powers the average citizen doesn’t enjoy and the exercise of those powers is necessarily free from prosecution.  The claim, frequently bandied about in the media, that the President isn’t “above the law” is meaningless in this sense, when the office is empowered by law to do things others simply cannot.  In this view, there are certain crimes such as murder, rape, assault, theft, etc. for which the President can be prosecuted like an ordinary citizen, but there are others – such as ordering a pre-emptive attack or revealing classified information – where they cannot.

Second, the powers vested in the Presidency by the Constitution are vested completely and entirely in one person.  That is the President is not beholden to the advice of his advisors and can act alone, against any and all advice.  The Joint Chiefs of Staff and the Secretary of Defense can strenuously object to a pre-emptive strike on a potential enemy, or conversely, can strenuously recommend one, but the President is ultimately the sole decider, to use George W. Bush’s phrase.  We know this to be the case because the Founders considered other arrangements for leadership of the executive, skeptical that one person should wield so much potential power.  A minority of delegates to the Convention proposed a “plural” executive that would vote on actions, rather than being decided by one person.  As The University of Wisconsin-Madison’s Center for the Study of the American Constitution described it, “Soon after it convened, the Constitutional Convention agreed to have a single executive as opposed to a plural executive which was favored by a few delegates who feared the reinstitution of a monarchy.”  The Independent Gazetteer, a Philadelphia newspaper, noted the objection at the time, after the Constitution was sent for ratification in 1787.  “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a king as much a King as the King of Great Britain, and a King too of the worst kind;—an elective King.”  Similarly, George Mason noted “The President of the United States has no Constitutional Council (a thing unknown in any safe and regular government) he will therefore be unsupported by proper information and advice; and will generally be directed by minions and favourites—or he will become a tool to the Senate—or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council, in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office” in his “Objections to the Federal Constitution,” also published in 1787.

The singular executive ultimately prevailed, however, and this is relevant to the immunity claim because much of Mr. Smith’s case hinges on the fact that President Trump was informed by (some of) his advisors that he’d lost the election and had no further legal avenues to pursue.  The thinking here is simple:  President Trump was told he lost, didn’t listen, and attempted to prevail upon Congress and the Vice President to stop the certification of the vote anyway.  It is hard to say how this is relevant, however, when the powers of the office are vested in one person, who is under no obligation to take anyone’s advice.  (Please note:  For purposes here, I am not considering the conspiracy to commit fraud charges in the Fulton County, GA case.  As I have said, that strikes me as potentially a legitimate charge, although I am not an expert on what constitutes fraud in Georgia, especially when the fake electors “plot” was conducted in public and were not intended to deceive anyone, much less what would constitute a conspiracy.)  Putting this another way, the President has a vested interest in ensuring elections in the country are conducted in a fair and transparent manner as part of his oath to ensure the laws are faithfully executed.  If he believes they were not, he has a sworn duty to make his objections known and that duty is not beholden to anyone else’s interpretation of events.  Indeed one could argue that the President, in this scenario, had no choice except to make his objections known and it would be a dereliction of duty otherwise.  Therefore, the President cannot be prosecuted for objecting to the results and attempting to block their certification – even if an ordinary citizen could be.  Conceivably, Mr. Smith could assert that the President was lying when he did so, but that would be a very difficult thing to prove given President Trump’s public statements.  Ultimately, the Supreme Court is likely to decide, but we should not be surprised that they support some variation of this claim, even if they fall short of “absolute” immunity.  There are undoubtedly other principles of our Constitutional Order at play, such as whether a bureaucrat in the Archives has complete authority over a former President, as I have previously written. Much like President Trump’s political prospects, the mainstream media is too blinded by animus to properly evaluate these claims.  Instead, they will reach any conclusion not in his favor.  Time is the only tell whether Trump can continue defying the odds, but by now, no one should bet against him and love him or hate him, all of us have the proverbial front row seat to history in the making.