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Is Trump Finally Cooked? Don’t Bet on It

The US truly is exceptional. Its sitting and former presidents are above the law.

Michael Harris 13 Jun 2023The Tyee

Michael Harris, a Tyee contributor, is a highly awarded journalist and documentary maker. Author of Party of One, the best selling exposé of the Harper government, his investigations have sparked four commissions of inquiry.

So Donald Trump is under arrest — again.

It will be the second time in just three months that Trump has been fingerprinted and booked. And it is the first time in U.S. history that a sitting or former president has faced criminal charges, 37 of them, in court.

For those who heaved a sigh of relief when Trump was slapped with federal charges for alleged crimes that could send him to prison, I have some advice: stop hyperventilating.

It would be tempting to think that the man who has broken so many norms, and some laws, over a long and tawdry public career, might finally be brought to justice. I doubt whether that will happen, because America has a history of shielding the country’s highest elected official with special and unwarranted treatment.

What other nations have done

Many other countries have charged their leaders, and in more than a few cases, sent them to jail, when they broke the law. A few cases in point.

France: In 2011, former French president Jacques Chirac received a two-year suspended sentence for corruption. He was also found guilty of influence peddling, breach of trust and embezzlement as mayor of Paris.

Former French president Nicolas Sarkozy was handed a three-year sentence for corruption and influence peddling.

Israel: In 2011, Moshe Katsav, former Israeli president, was sentenced to seven years in prison for rape, and other sexual offences against subordinates; in 2015, former prime minister Ehud Olmert served two-thirds of a 27-month sentence for fraud, breach of trust and tax evasion; the country’s current prime minister, Benjamin Netanyahu, is indicted on charges of fraud, breach of trust and corruption. The government he now leads has introduced legislation that would give the Knesset the power to set aside rulings of the Supreme Court by a simple majority vote.

Argentina: In 2022, Argentina’s vice-president Cristina Fernández de Kirchner was sentenced to six years in prison and given a lifetime ban from holding public office for fraud. Her offence dated back to her tenure as president from 2007 to 2015.

And just this week, Scotland’s former first minister, Nicola Sturgeon, was arrested in connection with an investigation into the funding and finances of the Scottish National Party, which she led until her surprise resignation last February. She was released pending further investigation.

Other countries get it. Public office is not a shield for lawbreakers, no matter how lofty their perch. Political power should confer more accountability, not less.

Even if Trump is held accountable for his alleged crimes, it won’t be for a very long time. As much as special prosecutor Jack Smith might want a speedy trial, he is not likely to get his way, even though Florida likes to boast about its speedy justice system, its so-called “rocket docket,” where cases move from indictment to trial in an average of 70 days. Not this time.

What everyone can expect from Trump’s continuing legal melodrama is not a battle but a prolonged, dreary, motion-heavy, spin-ridden war.

From Trump’s point of view, the main event is not having his name cleared in court. It is dragging out the legal process until it gets too deeply into the primary and presidential season to continue. If his new lawyers rag the puck long enough, judgment day will be pushed off into the future by politics. And depending on what happens in 2024, it might never come.

A Trump-appointed judge as wild card

From a legal point of view, there are a lot of places along the way where the whole case could jump the tracks.

Federal District Court Judge Aileen Cannon, a Trump appointee, could throw out the indictment, disallow key evidence gathered by Smith, or grant Trump’s lawyers as many delays as they can dream up. And if the former president and current presidential candidate were to be convicted, she could trivialize his criminal actions with her sentencing decision.

If things truly spin out of control, the former president could end up in the White House instead of the Big House — where the devastating detail of the indictment against him strongly suggests he should be.

It is not insignificant that Trump’s case is, at least for now, in the hands of Judge Cannon. You may remember her name.

Cannon was the federal judge who botched two decisions involving the FBI search of the former president’s Florida home, or what Trump called the “raid.” That was the search that turned up a stash of classified documents that belonged in the National Archives, not on a bathroom floor in Mar-a-Lago.

After Trump filed suit, claiming that the search of his Mar-a-Lago home was illegitimate and unconstitutional, Judge Cannon agreed to his request to appoint a special master to review the documents investigators had seized.

But she went much further than that. Judge Cannon also issued an order prohibiting the government from further review of the seized documents for the purposes of criminal investigation. She was assuming a jaw-dropping power that no federal judge had ever claimed in U.S. history — the authority to stop a pre-indictment criminal investigation.

In the end, Judge Cannon’s Trump-friendly and unprecedented rulings surrounding the classified documents case were reversed by the U.S. Court of Appeals 11th Circuit. And the reversal was more of a humiliation.

The 11th Circuit, a conservative court, publicly scolded Judge Cannon, finding that her “radical reordering of the case law” actually violated “bedrock separation of powers limitations.”

They also concluded that she didn’t even have the authority to hear the case in the first place, which meant that all of her rulings were null and void. In fact, Judge Cannon was ordered by the 11th Circuit to dismiss Trump’s frivolous lawsuit, which she did.

So how did a judge with just two and a half years in the job get assigned to yet another Trump case after so badly mismanaging an earlier one involving some of the same crucial national security issues? Random selection from the available judge pool in the southern district of Miami? Luck of the draw? Really?

The Nixon clause

Another factor in Trump’s favour is the slavish view of millions of Americans that it is somehow outrageous that a former president could be charged with crimes.

They fervently believe that the office sanctifies the man, something that can never be true in a democracy. Richard Nixon put that anti-democratic creed into words back in a post-Watergate interview with David Frost, when he said, “Well, when the president does it, that means it’s not illegal.”

One thing is for certain. Had the evidence gathered by Jack Smith been on an officer of the military or the CIA, there would be no protracted debate about whether they should be charged. They would already be in jail.

Things are so fundamentally out of whack in the United States concerning this dangerous and unfounded immunity for its leader, that the Department of Justice has a decades-old policy that a sitting president can’t be indicted.

That’s what saved Donald Trump from obstruction of justice charges in the wake of the Mueller probe. How absurd. What if a sitting president took bribes in return for government contracts, spied for another country, or murdered someone?

Then there is the role that a corrupt and power-hungry Republican party will play to whitewash Trump’s alleged crimes. Morally bankrupt players like GOP House Speaker Kevin McCarthy, who has already sold his soul to the Freedom Caucus to land his current position, is trying to pull the “O.J. Defence.”

The Speaker has already said that the House will directly intervene in this criminal case, demanding documents pertaining to the indictment. He denounced the indictment before he even knew what was in it.

After it was unsealed, and the facts were there for all to see, he continued to describe the work of the DOJ and Jack Smith as a political hit-job. Trump attack-dog Jim Jordan has hinted that he may haul the special prosecutor before his justice committee. The GOP’s retribution Congress will hit high gear.

Remember how O.J.’s dream team of lawyers turned the tables in his case, effectively putting the police on trial?

The GOP knows that 74 million Americans voted for Trump in 2020. They also know that diehard MAGA Republicans would follow Trump down the barrel of a cannon.

So don’t be surprised in the coming weeks when it appears as though Jack Smith, not the twice-indicted, twice-impeached former president, is the one on trial. The GOP will pull out all the stops to save Trump, including the promise from two Republican presidential primary candidates, Vivek Ramaswamy and Perry Johnson, that they would pardon Trump should he be convicted.

So Trump is protected from the consequences of his alleged illegalities by three things: the aura of the office of president, and the air of immunity it confers; a Trump-friendly judge whose rulings could sink DOJ’s case; and a corrupt political party that has so badly lost its ethical bearings that it boasts that Trump’s indictments actually strengthen his chances of winning the primary and the White House.

The Bonnie and Clyde factor

And there is one more thing working in Trump’s favour. Let’s call it the Bonnie and Clyde factor. U.S. culture is steeped in romanticizing, if not glorifying, the bandit, the bad guy and the outlaw.

Jesse James got a TV series; Growing up Gotti, based on the offspring of notorious Mafia boss John Gotti, became a reality TV show; The Godfather and its sequel made over $500 million; John Dillinger, once America’s most wanted gangster, has his own museum in Indiana; according to the New York Times, a photograph of William Bonney, better known as Billy the Kid, was bought at a flea market for $10. The paper reported that the image of the legendary outlaw could be worth millions.

What do Americans find so irresistible about gunslingers, mobsters and bank robbers?

Could it be the notion that these outlaws are somehow freer than the rest of us, like the drug dealing bikers in Easy Rider? They don’t obey the normal rules, and they don't come when called. They are a law unto themselves, and perhaps they remind a lot of people how timidly they have lived in harness to the usual conventions.

Could that be why Donald Trump’s popularity went up after he was indicted in New York?

A lot of Americans just don’t want Donny the Kid, their outlaw politician and bad-boy billionaire, to be caught.  [Tyee]

Read more: Politics

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