One of the more frustrating narratives that have side-saddled the myriad investigations into former President Donald Trump is his chameleon-like ability to skirt accountability, which is undoubtedly enhanced by sycophantic Republican lawmakers as well as his cabal of frenetic attorneys and the frivolous lawsuits that they employ to delay justice.
Trump’s presidency was mired with scandals. Yet even with having been impeached (and acquitted) twice – once for attempting to strongarm Ukraine into giving him dirt on then-Democratic presidential nominee Joe Biden and a second time for inciting an insurrection at the Capitol on January 6th – Trump has managed to evade any culpability for the spider web of criminal behavior stemming from his business practices to his historically corrupt single term in the White House.
He is also the subject of a criminal probe in Georgia for demanding that its Secretary of State Brad Raffensperger declare him the winner over Biden in the 2020 election, even though no evidence exists that indicates that there was even a scintilla of electoral malfeasance.
In fact, not only is Trump widely expected to run again in 2024, he is leading the current pack of possible candidates for the GOP’s nomination. And, according to one legal expert, there is nothing contained within the United States Constitution that precludes Trump from campaigning for the presidency from the inside of a jail cell, defeating President Joe Biden, and pardoning himself after he is inaugurated.
But given that Trump is now a private citizen – and is thus no longer shielded from prosecution – the failure of our justice system to subject him to consequences underscores something disturbing: the erosion of the rule of law.
Josh Marshall, the editor of TalkingPointsMemo.com, wrote on Friday of the challenges that accompany investigating a commander in chief:
We appear to be moving toward a critical moment for rule of law in the United States, where it will finally be vindicated or a mockery. Unsurprisingly, former President Trump instructed his aides to defy the Jan 6th committee’s subpoenas. The legal instructions were reported yesterday by Politico and the Post. They involve mostly hand-waving with turns at executive privilege, lawyer-client privilege and various others. None of these aides are lawyers and they are not the President’s lawyers. Former Presidents have no executive privilege. Or to put it more precisely, executive privilege inheres in the office of the presidency, not individuals. The President is Joe Biden. Not Donald Trump. It’s up to him to make such an argument. Trump can ask.
The particulars are less important than the big picture. Can a former President who directed a conspiracy to overturn a lawful election stymie a lawful investigation by infinite delays based on frivolous claims? That is what happened during Trump’s presidency. And that is a lapse the country has already suffered grievously for. But there are unique difficulties with a serving President.
This is an unfortunate dimension of investigating a President. But we have to blame ourselves rather than the Constitution. The Constitution provides a remedy for a lawless President: impeachment and removal from office. Congress twice got that opportunity and declined both times. That’s on us.
These include invocations of executive privilege, the president’s control over the Department of Justice, and his or her discretion over the release of official administration records.
“But that whole set of obstacles is off the table with a former President,” Marshall said, adding that “preventing the President from stymieing a lawful investigation will require action by three separate parties. Congress must use fines and eventually imprisonment to compel action. The Department of Justice must refrain from imposing needless barriers under the institutional misapprehension that these are customary defenses of presidential privilege. It must also use its enforcement capacity to assist Congress. Finally, a corrupted federal judiciary must resist the temptation to maim the law to enable the former president’s law-breaking.”
Thus, Marshall argued, the solution to the problem is simple: the powers that be should treat Trump like the petty thug he has always been:
The decision on whether to charge a former President with a crime is a weighty one. The decision to conduct a proper investigation of one is not. There are no excuses this time. Trump is just another lawbreaker and target of an investigation. Vindicate the law.
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Brandon is a political writer for the Hill Reporter specializing in current events, breaking news, and scientific discovery. Brandon holds a Bachelor of Music degree from Indiana University. He lives in New York City.