Prospects
Can Our Legal System Bring Donald Trump to Justice? BY PAUL STARR
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ot long from now, Donald Trump may reoccupy the national spotlight in a way no former president ever has before: as a defendant in one or more criminal trials who is simultaneously running to regain political power. The New York investigation of Trump’s business dealings has already produced the first of what may be a series of indictments of the Trump Organization and its officers, ultimately leading to Trump himself. Even more explosive are possible cases stemming from actions he took while in office, including his conduct related to the January 6th assault on the Capitol. These legal cases will be unfolding in political time as Trump reasserts his power in the Republican Party in the runup to 2024 and claims the whole government is engaged in a massive conspiracy against him. We are not done with Trump, and he is not done with us. American history offers no precedent for criminal trials of a former (and prospective) president. Many people, not just Trump supporters, would probably prefer to avoid trying him since it may make him into a martyr; I too might have liked to say, “Let’s just move on.” If the seven Senate Republicans who
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voted to convict Trump in his second impeachment trial had been joined by ten other members of their party, the Senate could have disqualified him from holding federal office again, and the country might have turned the page. (Congress might also have used the 14th Amendment to impose the same disqualification.) But the Senate’s failure to convict has left no choice. As The Boston Globe declared in an editorial in June, “Now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office.” But whether the U.S. legal system can bring Trump to justice is an open question. The record in prosecuting the rich and powerful is not encouraging. We have a deep-seated culture of impunity that offers the privileged seemingly inexhaustible escape hatches from being held legally accountable. So far, the life of Donald Trump has been a study in the culture of impunity: taxes dodged in the inheritance from his father, debts expunged through six bankruptcies, business failures eclipsed by his TV role as a supposed business genius, contractors stiffed,
allegations of sexual harassment or assault by at least 18 different women waved off. Trump’s entire life has taught him the lesson that he can defy the law and social norms and get away with it. The presidency gave Trump a new basis for escaping legal accountability. Under a Justice Department opinion never tested in court, a president cannot be indicted while in office. And, under an unwritten norm, the federal government does not prosecute former presidents for their actions in office once they have left it. That adds up to a perfect formula for putting presidents above the law for anything they do while president. Consider how Trump never faced any consequences for violating the Constitution’s Foreign Emoluments Clause, which bars federal officers from taking money or gifts from a foreign government. Other presidents have divested themselves of assets or put them in a blind trust, but Trump did neither. Shortly after his election, a Saudi lobbyist paid for 500 rooms at the Trump International Hotel in Washington as part of a lobbying campaign against a bill the Saudi government opposed—one of several known instances in which foreign governments or their representatives funneled money
to Trump. On January 23, 2017, three days after Trump took office, Citizens for Responsibility and Ethics in Washington filed suit against him for violating the Emoluments Clause, but during the four years he was president the courts were somehow unable to resolve the issue. On January 25, 2021, the Supreme Court dismissed the emoluments case on the grounds that Trump’s departure from the presidency five days earlier rendered the case moot. The Court protected itself from having to make a hard decision; it failed the country. The Emoluments Clause is an explicit anti-corruption rule in the Constitution, and our legal system could not figure out how to enforce it against Trump. At Trump’s second impeachment trial, the majority of Republican senators used the same kind of escape hatch to avoid confronting his role in the January 6th insurrection. They took the position that he couldn’t be convicted after leaving office, even though the Senate has previously convicted former officials at impeachment trials. The rationale is obvious: Such officials could resign after being impeached but before a trial began and thereby escape a conviction and the penalty of being disqualified from holding
