After Ford’s Precedence and the Stormy Daniels Case: Probing the State of the Trump Era with State and Federal Investigations
Ford’s precedent seems to have paralyzed a half-century of prosecutors. That precedent and Justice Department policy have left the United States with what seems an untenable situation — presidents are immune from prosecution in office and politically untouchable after leaving office.
There’s clear evidence that the monkey of Jaworski’s day is alive and well: A new book from the legal pundit and former prosecutor Elie Honig reports that federal prosecutors in New York considered bringing charges against Mr. Trump after he left office regarding his role in the Stormy Daniels cover-up. The draft indictment for Mr. Trump’s former personal lawyer Michael Cohen, Mr. Honig writes, left no doubt: “Trump wasn’t merely a bystander or an unwitting beneficiary of the campaign finance crime. He was probably criminally responsible for it because he was the driving force.
But those prosecutors felt that the former president’s campaign finance violations should be punished more harshly than the more serious charges. Maybe now Mr. Bragg will pick up where they left off.
The evidence collected by the special counsel prevented investigators from establishing if a crime was committed by Mr. Trump while in office, according to the report. Yet no prosecutor has sought to pursue this material now that he is out of office. Everyone seems afraid to be the first to make the first move and break the Nixon precedent. Yet other democracies have been willing to bring current and former leaders to justice, including France, Israel and South Korea. Boris Johnson was fined by the British police in January for hosting parties that violated Covid guidelines, as Prime Minister Rishi Sunak was fined for not wearing a seatbelt. A simple charge against a powerful figure would be better than making clear the principle that laws apply to everyone.
We’re able to prosecute state governors. Since 2000, Connecticut, Louisiana, North Carolina, and Ohio have all seen governors brought up on state or federal criminal charges; in Illinois and Alabama, it’s happened twice. More than a dozen members of Congress have faced criminal charges in the last decade, including the former House speaker Dennis Hastert. Democracy is moving along just fine.
The commander in chief is undoubtedly a unique case, and the bar and evidence necessary to prosecute a former president should be high. But in the Stormy Daniels case, Mr. Trump was clearly implicated in court papers. If he’d been anyone else, he almost certainly would have faced felony charges. How is it better for our democracy for him to escape a charge that prosecutors would levy against anyone else?
The Justice Department told the DC Circuit in a new filing how difficult the legal disputes around presidential immunity can be, and how they must be taken with the greatest sensitivity to the unremitting demands of the Presidency.
The Justice Department did caution the court against using the January 6 civil cases as a vehicle to draw firm lines on whether president can face liability for speech related to electoral or political concerns. Instead, the department asked the DC Circuit to issue a “narrow” ruling, focused solely on the assertion by Trump’s attorneys that he should be immune to civil lawsuits for presidential speech even if that speech incited violence.
A 1982 ruling from the US Supreme Court established that presidents are absolutely immune from civil damages arising from their official acts as president – but when presidential speech amounts to an official act is still a murky question for the courts.
“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol,” the DOJ said in its brief. “But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this Court should reject the categorical argument President Trump pressed below and renews on appeal.”
The Justice Department had argued that the president could not be held immune from lawsuits if they found him to have incited violence.
It is asking the DC Circuit not to rule on whether the president is free to speak on matters of public concern, including when and how to draw a line between his official and electoral speech.
In the brief, it stated that it didn’t mean to say that anyone could be liable for the events of January 6, 2021.
If the appeals court were to side with the Justice Department and allow the Jan. 6 lawsuit to proceed, it could add to the mountain of legal costs Mr. Trump faces as he pursues his 2024 campaign for president.
Comment on the DOJ Sui generis Rule Applying Ex Post Facto: Trump’s “Fist” is not a Political [Fight]
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“DOJ’s new carve out is a sui generis rule applied ex post facto that has no underlying principle or explanation beyond ‘we think what President Trump did was bad,’” Trump argued in the new filing. The rule of law is not like this.
“President Trump’s use of the word ‘fight’ was clearly metaphorical, referring to a political ‘fight,’ not a literal fistfight or other violent interaction,” his filing said. He said in reference to Rudy Giuliani that he has guts. He fights. No reasonable person would understand the implication that Mr. Giuliani is getting into fist fights.
Their filing said that there are non-violent actions Trump could have encouraged about Congress’ certification that would also fall outside the sphere of the “official” responsibilities of a president.
“Urging private citizens to use any means that obstruct Congress from carrying out its constitutional duty to certify a presidential election—a procedure the Framers expressly placed beyond presidential reach—bears no connection to any presidential responsibility,” the lawmakers and police officers said in their Thursday submission.