Thursday, June 29, 2023

Politics vs. the Law

Donald Trump is playing a different game than these fellows are.

 Meeting with visitors at his golf resort in Bedminster, NJ after he left the presidency in 2021

“Isn’t it amazing?” Trump says as he shuffles through what he calls “a big pile of papers,” which he can be heard handling on the recording.

“This thing just came up,” Mr. Trump says, adding: “This was him. This was the Defense Department and him.”

“Wow,” a woman in the room can be heard saying, followed by a rustling of papers.

“Let’s see here,” Mr. Trump says, adding, “Look.” There is a brief pause, during which he appears to show people in the room something, and they start to laugh.

“This totally wins my case, you know,” he says, adding that the papers were “highly confidential, secret. This is secret information.”

“Isn’t that incredible?” Mr. Trump says later, adding, “This was done by the military and given to me.”

Then he appears to lean into a suggestion for the book writers. “I think we can probably, right?” Mr. Trump says. A woman responds, “I don’t know, we’ll have to see, you know, we’ll have to try to figure out a —”

“Declassify it,” Mr. Trump says. “See, as president I could have declassified it, but now I can’t.”

“Now we have a problem,” the woman says, laughing.

“It’s so cool,” Mr. Trump says, eventually calling out for someone to bring in Coca-Cola to drink.

It may not matter whether Mr. Trump's attorneys can present this believably to a jury.

A political science professor at Stanford University cautions

Judge Aileen M. Cannon has myriad tactics at her disposal to delay, disrupt and derail the proceedings. She can influence jury selection, undercutting chances of a unanimous guilty verdict. Even if the jury reaches that conclusion, it is the judge who sets the sentence. This could be a slap on the wrist.

Moreover, the case might not get to the jury. Politico explains

Like all federal judges, Cannon has the discretion to grant Trump an acquittal on any of the 37 counts he faces — or on all of them — at the conclusion of the government’s case or after any defense Trump’s lawyers may put on. Such a ruling — under Rule 29 of the Federal Rules of Criminal Procedure — would amount to the judge’s declaration that the government failed to prove a key element or elements of its case and that no reasonable jury could find the former president guilty based on the evidence presented.

That's fairly uncommon. Of course, most judges don't preside over a trial in which the defendant, if pleased with the judge, may have the opportunity within a few years to nominate her for the United States Supreme Court. And if that judge is fairly young and a member of the Federalist Society, she would be quite appealing if the defendant becomes President.

A mere one juror holding out would be enough for the jury to reach a not guilty verdict or a mistrial. If Trump nevertheless is convicted, Judge Cannon can choose not to impose a prison sentence. If she did the right thing- and remember, this is a member of the Federalist Society we're counting on- and imposes a period of incarceration, Trump still might not set foot inside a prison.

The Department of Homeland Security would like a word with the Bureau of Prisons. Under Section 3056 of Title 18-2 of the United States Code, an ex-President is entitled to Secret Service protection for the rest of his life.  That would be difficult (though not impossible) in a federal prison. Moreover, the defense might argue that Trump's well-being and safety would be jeopardized if he is in the general population.  He might even be subject to the sort of sex he never has been interested in.

Electronic monitoring would be an option- assuming that the defendant is convicted and sentenced to prison.

Nonetheless, by then, a Republican might be President.  Only two GOP candidates- Asa Hutchinson and Will Hurd- have said they would not as President pardon Trump, and they have about as much chance of being nominated by the GOP as does Bernie Sanders. Less, maybe.

If Trump is elected, he would issue a pardon for himself. This would be an act of dubious legality. However, in a country in which the Justice Department has determined (from whole cloth) that a sitting President can be charged with no offense, it's likely a court would intercede to prevent an incumbent from serving prison time- or being penalized in any way, probably.

And Trump may already be pardoned. Though conceding it is "a highly speculative option," a law professor warns

it’s possible that Trump could try to pardon himself with a “pocket pardon.” That is, Trump may have issued himself a self-pardon while he was president and squirreled it away in a desk drawer or storage closet for use in rebuffing possible federal charges down the line.

Even a re-elected President Biden might decide to pardon his predecessor. Presumably, he would be chastened by the nearly undeniable reality that President Ford's pardon of an ex-President Nixon was a mistake. However, this is a country that at one time elected as President Donald J. Trump. And it's one in which the liberal party, while rebelling against mass incarceration, nominated for President its one aspirant who was an architect of that criminal justice approach.  So nothing can be counted out.

Donald Trump understands what George Conway apparently doesn't. If the law is against him, politics can still save him. It can save him by favoritism of Judge Cannon, an unreasonable juror (a Trump supporter unreasonable? impossible!) or by a Republican President who realizes that failure to pardon the GOP hero might lead to a torrent of abuse or worse from other Republicans.

Admittedly, Trump has only contempt for rules, the country, the Constitution, or other human beings and rational, responsible jurors would understand that, even if it is explained to them. However, Donald Trump well understands that political considerations are his best chance, and a decent one, for avoiding a well-deserved fate.

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