Trump and the Politics of Litigation

Trump, Politico Magazine

The usual response of any incumbent politician to any hypothetical during campaign season is a resolute refusal to step into the bear trap: “Sorry, I’m not going to answer any hypotheticals.”

But hypotheticals in court rooms are more common.

Suppose a president orders Seal Team Six to murder his opponent. Would federal prosecutors be justified in arresting the president for murder without first impeaching him? This question was put by a judge to former President Donald Trump’s lawyers. The lawyers answered, in so many words – lawyers do tend to verbosity – the president must first be impeached, then tried.

Almost immediately, possibly because the hypothetical president was Trump The Usurper, the Democrat political universe erupted in displeasure.

Republicans were unwilling to lounge in the improbable hypothesis, which presents numerous difficulties. Trump is not President, as the hypothesis supposes.

A more probable hypothesis might run like this: President Joe Biden, perceiving that Trump leads him by a narrow margin in most polls as Election Day 2024 nears, orders Team Seal Six to assassinate his rival. The deed is done. Must Biden be impeached before he is tried in federal court for murder?

The answer is “Yes.”

Trump is no longer president, rendering impeachment -- i.e. removal from office after an indictment in the U.S. House and a trial in the U.S. Senate upholding the indictment -- unnecessary. But – there is always a “but” – can Trump be tried for offenses he may or may not have committed when he was president?

Short of murdering his chief political opponent, the likely answer is a qualified “Maybe.”

The charge brought against Trump, and hotly disputed by him, is that he conspired in an insurrectionary act, and the 14^th Amendment to the U.S. Constitution does not look kindly on insurrectionists.

But – there is always a “but” – did the attack by an unruly mob on the Capitol building when Congress was toting up electoral votes amount to an “insurrection” as the authors of the 14^th Amendment understood the term “insurrection?”

Constitutionalists familiar with the history of the 14^th Amendment should feel free to answer this question with a resounding “No,” and those who insist the answer should be “Yes” may be engaging in what Mark Twain called “a stretcher.”

The general public, if not partisan news outlets, sense that the purpose of the litigation against Trump, perhaps the most prominent political figure within the last few years, is political rather than judicial, however the courts may dispose of various claims.

So it would seem in the minds of a huge portion of voters polled in recent days who prefer Trump over Biden. Then too, the Biden administration has been bitten on the cheek by charges of corruption. For this reason, jurists presiding over a truly massive litigation effort to hobble the presidential candidacy of Trump may appear to the general public to be engaging in dirty politics, despite disclaimers from presumptive non-partisan prosecutors that they are innocent of political skullduggery.

Commentator Michael Smerconish of CNN, not a fan of Trump, passed his eye over the many judicial assaults facing the former president and provided an answer to the question: Will prosecutors determine the fate of Trump before the American people do in the upcoming presidential election?

Smerconish’s answer is “No.” The host of CNN and CNN International, who is also a Sunday newspaper columnist for The Philadelphia Inquirer, supposes Trump wants to run out the clock on possible convictions and then, having been elected president, pardon himself. Even so, “He [Trump] is not wrong in saying that his cases raise unique questions that need to be litigated pre-trial, including the approval of the search warrant from Mara Lago, the piercing of attorney-client privilege, and the impact of the Presidential Records Act,” among many other necessary pre-trial judgments.

Given the campaign calendar, a final resolution in the four major cases brought against Trump cannot be resolved, according to Smerconish, before Trump either is or is not elected president.

Trump’s prosecutors want judges and juries in multiple cases to determine the once and perhaps future president’s guilt or innocence before the judicial pie has been fully baked in the judicial oven, effectively denying Trump the presidency. But half-baked pies and half-baked prosecutions are equally unsavory, and the American public appears to be latching on to the political nature of Trump’s multiple prosecutions.

If elected president, Trump may or may not pardon himself. He may just as well seek vindication from a justice system that, some suppose, is blind to down-and-dirty political motivations. Self-vindication in American politics is not always possible, as witness the trials and tribulations of former Presidents Dick Nixon and Bill Clinton. And the notion that Trump’s multiple trials can be “non-political” when each and every one of them will have determinative effects on Trump’s election prospects is patently absurd.