Trump v. Rule of Law: Game On

The Jan. 6 insurrectionist is trying to take his wrecking ball to the courts. My money's on them. But it's going to be a consequential year.

If you’ve never met a 77-year-old juvenile delinquent, meet the former president.  Like an uncontrolled child, Trump doesn’t like rules. And now, ten months before the election a familiar pattern emerges: the rules v. Donald Trump – this time, with the American justice system on the line.

Staring us in the face is an out-of-control Trump now using his role as “presidential candidate” to wreak havoc on our justice system.  His words and behavior have been so bad, and show no signs of getting better, it proves why the Colorado Supreme Court got it right when it ruled Trump should be taken off the ballot. He’s not fit to run for any office, let alone the presidency.  It’s the message at the center of my Jan. 10 posting, “Do the right thing, Supreme Court. Affirm the Colorado decision.”

An ongoing Jan. 6 for the courts
If Trump is allowed to run and wins, all signs point to his wanting to destroy the American judicial system as we know it – the one that’s finally coming for him three plus years after his most serious crimes.

The federal cases brought by special counsel Jack Smith, the New York case charged by Manhattan District Attorney Alvin Bragg, the Racketeering and Corrupt Organization (RICO) crimes charged by Fulton County, Ga. DA Fani Willis, and the national secrets case being presided over by the hapless Aileen Cannon accuse him of committing some of the most heinous crimes in our history: thwarting the certification of a free and fair election, stealing and hiding national secrets, trying to corrupt the voter certification in Georgia, and enlisting fake electors to steal the election for Donald Trump.  

Then there’s the New York porn star case some legal pundits and Americans see as unimportant. But, is it? The public’s not knowing that then new husband and father Trump had sex with a porn star and paid to keep her quiet could have helped swing the razor close 2016 election in his favor.  Judging what we’ve lived through since then, one could argue it wasn’t inconsequential at all, as Alvin Bragg’s 34 count indictment suggests.

Of course if Trump were again to become president, these pesky, embarrassing federal matters could be made to go away with a complacent, brand new Justice Department under his thumb with an attorney general like the disgraced former DOJ attorney Jeffrey Clark at the helm. He plotted with Trump three years ago to stage a coup against the acting Attorney General. It flopped, but he likely may be slated to be given the top DOJ job for real this time if Trump won in November – unless Clark were to be found guilty of racketeering and fraud in Fani Willis’s case.

For the moment, it’s incredible to think the system envied for more than 200 years as the best in the world, the one that people from other countries try to get their cases heard in because of its fairness, design to give defendants every conceivable chance, and quality of its judges would be no more…transformed into the kind that serves dictators like Trump friend Vladimir Putin: rigged, corrupt, and there to serve the big man in charge.  

In such a system the rules of evidence would be skewed in the state’s favor. Witnesses for the defense? Try to get them to show up if they’re facing reprisals.  Judges?  The good ones impeached and replaced by those most loyal to Donald Trump.  The “rule of law” –  a slogan, not a fact.

A look at three days in the life of Donald Trump last week proves the depths of Trump’s animus against the rule of law and the strength of the system that right now is our first best hope to thwart him – the second, and last, being the Nov. 5 vote. 

The days:
Immunity Tuesday.  Trump revealed what a new post-election world would look like if he were reelected president.  In a hearing before the U.S. Court of Appeals for the District of Columbia, Trump argued for unbridled presidential immunity to get him off the hook for Jan. 6. 

His Ivy League-, Oxford-educated lawyer, John Sauer, was there to impress Donald Trump and not the three-judge panel who sat incredulous, listening to the presidential candidate’s scheme for the kind of unbridled authority of the world’s worst dictators, past and present.  Sauer asserted that his client could not be prosecuted for any of his actions as they fall under the just-made-up notion of unbounded presidential duties, with one caveat: that the House of Representatives first votes to impeach and the Senate convicts.

By way of clarification, Judge Florence Pan asked Sauer whether a president could be criminally prosecuted if he were to direct the Navy Seals to assassinate a political rival.  In a response begun with stammering and hemming and hawing, Sauer eventually mustered a “no,” meaning no Trump could not be prosecuted – unless he had first been successfully impeached for the crime. 

But that would be unlikely, wouldn’t it, with a free-to-kill hall pass in the hands of a president who could, conceivably, kill off any unfriendly senators likely to vote
against him.  

Not coincidentally, Trump survived two impeachment attempts, falling short of the Jan. 6 effort by just nine votes, with all 50 Democrats and only 7 Republicans voting against him. Of note, Trump escaped the two convictions because of senators’ fear of political reprisals and physical violence, according to current sitting Utah Senator Mitt Romney, who voted to impeach.  Seems evident these “close, but no cigar” impeachments may have inspired Trump's new Catch-22 scheme.  We can only wonder what a different place this country would be today if enough senators would have done the right thing (“The terrorizing style of American politics” 14 sept 2023 washington post).

Retribution Wednesday. Trump doubled down on the idea of exacting revenge against his political foes by simultaneously denying and admitting it in a Fox “News” forum featuring defanged news hosts and rabid audience members there for the purpose of putting Trump in the best light.  Using his familiar “A lot of people say” as replacement for factual information, Trump declared he would not do that while using words suggesting that, yes, he would: “No, I wouldn’t…But a lot of people say that wouldn’t be so bad,” he said, chuckling.  “Why wouldn’t it be bad? (no one asked).  “Look at what they did,” he said, (again, chuckling), referring to his current legal woes and suggesting they were everybody else’s fault, not his. With no push back or follow-up from Fox news hosts (“reporters” not the accurate word here) Martha MacCallum, Bret Baier, or anyone in the audience, Trump was able, unimpeded, to make his point. 

Temper Tantrum Thursday.  Now back in the Manhattan court trying him for corruption and business fraud, Trump used the final day of the hearings to distract from the solid evidence presented against him, and act out in spoiled child fashion against the court, the judicial system, and judge.  

During the trial and prior to the rant, New York Attorney General Letitia James and her team submitted evidence of Trump’s bilking the state of as much as $2.2 billion from 2011 to 2021.  But now Trump wanted to make his defense –  not by being willing to take the stand, undergo cross-examination, and refute the evidence, but by making a mockery of the proceedings in the last minutes of the trial.

The day before, Trump had asked Judge Arthur Engoron if he could get on the stand and say some things. But he missed that day’s deadline for making the request, failing to submit to the restrictions of sticking to the facts and being respectful of the court and its process. Trump’s message (and, by extension, that of his lawyers) – “no” to
the rules. 

 So when Trump attorney Christopher Kise raised the issue in court again on this the next and final day, the judge – who could have said no – instead began to ask Trump if would abide by the restrictions.

Witness for the prosecution
Instead, seated at the defense table, Trump launched into a tirade, interrupting the judge before he finished speaking, in words and sneering tone verbally abusing the judge, the state Attorney General, and the facts.
To James: “I have done nothing wrong! The state should pay me for what I’ve had to go through!”

To Judge Engoran: “You have your own agenda. I understand that!” 

A few minutes in, Engoron asked Trump’s attorneys to “Please, control your client.” But they did not, saying and doing nothing – their disrespect now mirroring
Trump’s own.

After about five minutes, the judge abruptly adjourned for lunch, ending Trump’s rant. 

But that was not the extent of it.  That morning, a bomb threat was called in for Judge Engoron’s home. Everyone had to be evacuated, rattling the family, court officials, and delaying the beginning of the trial’s proceedings. The incident follows ongoing threats to the judge’s law clerk, which led Engoron to place a partial gag order on the former president. But that hasn’t stopped Trump supporters from attacking her and the judge on social media and making threatening calls.

“Attack Playbook,” updated
The tactics follow similar patterns against the judiciary and prosecutors in the myriad of past and present cases. 

Remember Trump’s 2016 “Mexican” reference to Indiana-born U.S. District Judge Gonzolo Curiel who handled the class action lawsuit against the so-called “Trump University”? As president-elect Trump settled, writing a check for $25M.  But still not having learned his manners, Trump continues to disparage prosecutors and judges in the spate of litigation he’s facing now.

Concerned, writer E. Jean Carroll, who won a $5M judgment in April when a jury found Trump liable for defamation and battery, is worried Trump will bring his chaos back into the courtroom slated for hearings beginning on Tuesday, Jan. 16. That’s when Trump must again face a jury to determine more damages since he flaunted the ruling’s restrictions to cease libeling Carroll, animating her second suit. 

Given Trump’s behavior – always bad, but now worse – Carroll attorney Roberta Kaplan wrote to presiding judge Lewis Kaplan, warning him of Trump’s likely intention of “turning this trial into a circus,” just as he’s trying to do with his other trials, Roberta Kaplan said.  There’s always the possibility Trump won’t show up; he didn’t the last time.  But if he does, there’s no predicting what he’ll try to get away with, and Kaplan is asking for Judge Kaplan to take a firm stand.

Raging bull
When asked on Saturday to assess the significance of Trump’s bad-boy behavior, Constitutional lawyer and activist George Conway said Trump’s “battle with the justice system goes back decades,” as courts work within a system of rules and Trump does not and never has. “Trump believes rules and law don’t apply to him. But our courts beg to differ,” Conway added. “He’s out to destroy democracy and our system of justice. That’s why he can never again be president,” Conway said (“the weekend,” msnbc.com).

That sets up the winner-take-all battle now as Trump is using the courts as a bete noire in his candidacy for the presidency.  “He’s running for president from the courtroom,” political writer, strategist, and pollster Cornell Belcher said recently.  “Trump says the courts are keeping him from the campaign trail, but it’s just the opposite. The courts are his campaign,” Belcher said (msnbc.com).

Trump’s insults are nothing if not prolific. Whether they’re delivered outside the courtroom, on the courthouse steps, or in social media, Trump and his campaign team have been busy — with their disrespectful, hate-filled screeds aimed at prosecutors, judges, and the court system itself as his favorite targets. I won’t give them any more ink by repeating them, they’re so disgusting.  Instead, let’s let the numbers speak.

Hate by numbers
NBC News looked into Trump’s social media messages from April 2022 to Jan. 6, 2024 and found 14,400 hate-filled screeds coming out of “Truth Social.” Trump’s favorite tropes characterize his multiple legal challenges as “witch hunts” and “conspiracies” masterminded by President Joe Biden, hoping his followers won’t be knowledgeable enough to understand that state and federal charges arise from grand juries, ordinary Americans who look at facts presented to them and decide whether the suspect should be brought to trial.  

Despite their ugliness, Trump’s insults are sticking with those followers who have traded any loyalty to the Constitution for their fealty to Donald Trump. Former federal appellate judge and Conservative jurist Michael Luttig said Trump’s grievances against the system coupled with a big megaphone that goes with it are all for the purpose of “delegitimizing the courts in the eyes of the American people. And they’re having the desired effect.”  

Trying an unprincipled ex-president now running again sets up a unique situation never before experienced by the American judicial system.  Although American judges and prosecutors possess legal authority, living by rules of judicial integrity hobbles their ability to fight back. Where their’s is a world of law, decorum, and civility, Trump’s is a world of chaos, alternate reality, and lies.

NBC legal analyst Barbara McQuade worries they’re also polluting jury pools. “If even just one juror has bought in on Trump’s lies, it could result in a hung jury. And then there’s the danger of violence,” she said.

Ticket out…?
On Friday Jan. 12, the U.S. Supreme Court agreed to hear the Colorado case over Trump’s ballot eligibility.  On Dec. 19, the Centennial State’s high court found that on Jan. 6 2021 the former president engaged in an insurrection against the United States, and so must be excluded from the presidential primary ballot under Section 3 of the 14th Amendment, reading:

“No person shall…hold any office, civil or military, under the United States or under any State who, having previously taken an oath, as a member of Congress, or as an officer of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Arguments will be held Feb. 8.

The loyal alone shall rule the country
In the event there was any doubt about the framers’ intention the Amendment included the presidency, the Colorado Court opinion cited the text of a speech written by Section 3’s author,  Rep. Samuel McKee of Kentucky.  He says: “The loyal alone, shall rule this country.”  The Court’s intention was clear: Given Trump’s past and ongoing speech and behavior, the former president would fail McKee’s test.

Former Acting Attorney General for National Security at the Department of Justice Mary McCord believes Trump’s dangerous threats to the rule of law in the last weeks and months add fuel to the case for removal, as called for by the Colorado justices.  McCord hopes the U.S. high court will follow suit:
“I hope our Supreme Court justices who will be ruling on the Section 3, 14th Amendment issue will keep in mind the damage Mr. Trump is doing” she said last week in an MSNBC appearance. 

Citing not only the harm to the rule of law, but also the time, energy, and money to offset Trump’s effect on violence (more than $4M is being spent on Jack Smith’s security, alone – a figure multiplied by the judges and prosecutors involved in Trump’s many cases), McCord added: “I hope our Supreme Court justices (hearing the Colorado case) keep in mind the damage Trump’s doing to our rule of law, how we use the courts in this country, and how they have been used for the past hundreds of years.”

Think of it, with one stroke of a pen, the nation’s highest Court could protect America, its justice system, and save it – us – from the danger of an unhinged Donald Trump 2.0 presidency.

Trump’s disrespecting the rule of law and making the case he’s immune from it tells us what Trump is going for, and what Section 3 of the 14th Amendment is there to stop.

–trg

Thank you for reading. Here is who I write for…