Crime Does Pay: Trump Edition

The Supreme Court released an Order List with an interesting statement by Justice Sotomayor (joined by Gorsuch) regarding a case involving damage to a woman’s home during a police raid. The SCOTUS-related news was elsewhere.

We lose something when we accept that Trump can’t be impeached and convicted because prosecution is available but also can’t be prosecuted, and can thus only be defeated by the means we would defeat, say, Barack Obama or George W. Bush or Teddy Roosevelt.

Jack Smith, the special counsel who oversaw two prosecutions of Trump, petitioned the courts to dismiss the cases without prejudice. The D.C. judge (election interference) and the Eleventh Circuit of Appeals (the Florida documents case blocked by Judge Cannon’s asinine ruling) granted the requests.

The prosecutions against Trump's valet and property manager continue so the Cannon ruling remains under appeal. Let’s see how long that remains after January 20th. The “without prejudice” means (so you are saying I have a chance?) the cases can be brought again after Trump leaves office. Good luck with that.

[Meanwhile, Trump’s team continues to refuse to follow ethical and security rules during the presidential transition process. This includes not providing normal vetting of the Cabinet nominations. The rules simply don’t apply to them, apparently.}

Jack Smith is acting within the requirements of current Justice Department policy (widely but not universally agreed upon by liberal law professor types) that you cannot indict a sitting president. We have a unique situation now of an incoming president being subject to an existing indictment. Jack Smith decided the rules still apply.

I think the whole thing is academic. If Jack Smith did not act, the Trump Justice Department would eventually fire him and drop the cases.

As to the wider principle, it is not likely that the Justice Department will indict a sitting president even if it technically had the power to do so.

If a state tried, some sort of supremacy argument would likely be used to stop it. We would be left to debate extreme hypos such as some sitting president who raped and murdered people. Not something involving enemy combatants. They were some Ted Bundy type. I would leave that open to worry about it when it came.

The better question is allotting responsibility. A popular target is Merrick Garland. I think the criticism has been somewhat unfair. And, doing the math, he is simply not the only one at fault. If the Supreme Court didn’t intervene, a trial was quite possible.

It is absurd that Trump got away with insurrection and other crimes. Well, maybe not exactly absurd. It is outrageous. Many people are at fault, especially Republicans in Congress for not removing him by impeachment when they had a chance.

Some argue the election settled things. Tom Goldstein is rightly criticized here for making such an argument. An election is not a trial with all that entails.

Not to forget about it, Trump remains disqualified by a reasonable application of the third section of the Fourteenth Amendment. The Supreme Court in Trump v. Anderson wrongly made it a paper tiger but it is still there.

Finally, there was old news stuff that occurred during Trump’s first presidential term. Constitutional limits on emoluments, for instance, were broken. Challenges were made, but Trump ran out the clock. Congress never beefed up the rules.

It is what it is but I am not going to just grant it like the weather.

When Jim Crow was the law, some people did not grant the legitimacy of state-sponsored segregation. It was wrong and a correct application of the law was up to a better world. The same applies here.

Bad things happen. We cannot wish them away. We still get to say they are wrong.

I will continue to do so. As should others. We can at least cry foul among the chaos.