We once again come to the start of yet another week that could, and by rights should, destroy Donald Trump. This Thursday, the Supreme Court will hear arguments in the case that seeks to bar Trump from the ballot under Section 3 of the Fourteenth Amendment. Meanwhile, we await word from New York Judge Arthur Engoron, who blew past his self-imposed January 31 deadline for announcing the damages he’ll make the former president pay in the Trump Organization fraud case. Finally, we also sit here wondering what is taking that three-judge panel on the D.C. Circuit Court of Appeals so long in deciding that Trump should not be immune from prosecution.
What does it all add up to? This: We are forced to confront the devastating possibility that our legal and political systems have no way of punishing obviously illegal and immoral behavior when carried out by someone with enormous political and financial power.
We tell ourselves we’re a nation of laws. But what if that is a lie? What if that’s a fairy tale? What if our system is not only imperfect, as any system designed by human beings is bound to be? What if it is designed so that rich and powerful people—even ones with horrible defense lawyers!—can wait the system out, even pervert it, and prevail?
This is what Donald Trump has done all his adult life. It goes all the way back to 1973, when the Justice Department moved against Trump and his father, Fred, for flagrantly racist renting practices. They did not rent to Black people. That isn’t even disputed now. But the Trumps hired Roy Cohn, sued the government for defamation, and settled the suit painlessly two years later without ever having to admit guilt.
That was no aberration. That was our legal system at—pardon the phrase, “work.” We’ve all seen more instances of this than we can count: A rich person or a corporation rips people off or peddles a product that doesn’t work or that even causes people injury or death, and they pay a fine and don’t admit guilt. This happens so often that it’s shocking when a wealthy corporate wrongdoer is truly brought to justice and sent to prison. Elizabeth Holmes, I guess. OK, that’s one.
But when Trump entered the political world, well, I thought, now he’ll see that you can’t just endlessly get away with it. You can’t lie and deny and pay fines and lightly dance on to the next controversy. For law-flouting real estate barons, there’s always a way to wriggle out. But for law-flouting presidents, surely there are consequences.
There may yet be. Trump has, after all, been indicted four times. He is charged with 91 specific criminal acts. A jury of his peers (it seems rude to these people to consider this gruesome swindler their moral peer, but he is alas their legal peer) just awarded a woman, whom he repeatedly defamed, more than three times the amount of money her lawyer was seeking. And back in 2020, when he was trying to overturn the election, the courts were having none of it, even courts overseen by his own appointees.
So the legal system has some fight in it. But the battle is far from won.
Let’s consider Trump’s current legal arguments in turn. With respect to the Fourteenth Amendment case, his lawyers contend that the president is not an “officer” of the United States. This is, on its face, a joke. Ask 1,000 people in the street if the president is an officer of the United States, and at least 975 of them will say of course he is.
But if you read some tortured defenses of the Trump position, you will see that our Constitution and laws are ambiguous—or perhaps the better word is malleable—enough on the matter that Trump’s lawyers, in front of friendly judges (and Trump sure has some friends on the Supreme Court), might actually get away with saying that the president of the United States isn’t an officer of the United States. (It would set an absolutely staggering precedent, it must be said, for the Supreme Court to decide that the president enjoys the unique power to order an insurrection.)
On the question of immunity, his lawyer, rather infamously, argued at the D.C. Circuit that Trump could, in fact, get away in a court of law with ordering Seal Team 6 to kill a political rival provided the Congress had not impeached and convicted him first. If Congress failed to do so, John Sauer argued, then, no, Trump could not be prosecuted for murder. Why this hypothetical rogue Seal team wouldn’t simply also murder any conviction-minded senators is the part of this thought exercise that few have dared to ponder.
Again, this is as crazy-beans as it gets. And again, if you asked 1,000 people whether a president should be able to get away with murder (you’d have to ask it hypothetically, to remove the question of partisan loyalties), the overwhelming majority would say no. I’d hope everyone would. And yet: Justice Department rulings are apparently malleable enough that this Supreme Court might uphold that logic.
What in the world is taking this three-judge panel so long? There’s a lot of speculation on that. Two of the judges are Biden appointees. The third, Karen Henderson, was appointed by George H.W. Bush. She has produced several pro-Trump rulings over the years, including slowing Congress’s access to Trump’s tax records and joining a Trump judge in a decision, described as “simply astonishing” by Vox’s Ian Millhiser, that helped the legal position of Michael Flynn.
I still think, on balance, and most of our nation’s top legal experts think, that the three-judge panel won’t buy Sauer’s argument and that even this Supreme Court will likely uphold the Circuit, allowing all these prosecutions to continue. The Fourteenth Amendment case is far more up in the air. It will be interesting to hear Thursday what kinds of questions John Roberts, Brett Kavanaugh, and Neil Gorsuch in particular ask.
But we are left wondering: What if Trump skates away again? What if, in other words, it’s still 1973 in this country, and he gets away with it? Again: By any commonsensical standard, Trump as president was obviously an officer of the United States. He obviously incited an insurrection. It is obvious that no president should have total immunity from prosecution for anything he does. Into the bargain, he obviously stole classified documents he wasn’t entitled to have, he obviously tried to rig the Georgia vote, and he obviously paid Stormy Daniels hush money. And finally, it’s obvious that if he wins, the minute he’s president, he’ll nullify all these prosecutions of himself.
When we talk about the failures of American democracy, we talk about the Electoral College, we speak of the unequal Senate, and gerrymandering, and so on. We rarely talk of the law. We should. Americans see all the time that the law cuts deals with rich and powerful people. Is that supposed to make them think we live in a truly democratic society? It makes them think we live in a rigged society, and that on the question of democracy, the law is agnostic.
So, in the nine months between now and Election Day, we will see whether we have a system of laws that is capable of stopping an obvious lawbreaker. If we do, great. We at least live in a nation where the legal class finally rose up and said to one lawless and dangerous man, “Enough. We are stopping you.” And if we don’t? We’ll spend the next four years—at least—learning the full price of the law’s democratic agnosticism.
