by Brian T.
Lynch, MSW
On the morning of September 19, 2019, history will note, President Donald J. Trump
officially declared himself to be this country’s first authoritarian dictator. On
that day he announced to the world, in a court filing, that he was assuming
unlimited criminal immunity to act within or outside the law. He also declared
that anyone who works for him on his behalf is also above the law and cannot be
investigated, charged or convicted of any crimes as long as he is in office. By
logical extension, if no violation of the law can apply to him while in office, then
no election can remove him from office and no Congress can remove him by impeachment
or check his powers in any way.
This
isn’t how the first draft of history read that day. Trump’s dramatic claims received
relatively little notice. They came in a court filing and were so outrageous and
incredible that no one took it seriously. The headlines on that Thursday read
like some variation of this one from the New York Law Journal:
“Trump Sues Manhattan DA
Vance in Federal Court in Wake of Tax Subpoenas”
In
the wake of the Mueller investigation, with its assortment of indictments,
trials, and convictions of Trump associates, there were over a dozen less
noticed criminal investigations spun off to be conducted in other states by
other prosecutors. It was a court filing in one of these lesser-known
investigations that the President announced his sweeping declarations.
On
October 7, 2019, District Judge Victor Marrero, of the Southern District of New
York, summed up the President’s claim in an introduction to his ruling
rejecting Trump’s claim. Judge Marrero’s ruling reads in part:
“The
President asserts an extraordinary claim in the dispute now before this Court.
He contends that… under the United States Constitution, the person who serves
as President, while in office, enjoys absolute immunity from criminal process
of any kind. Consider the reach of the President's argument. [As] the Court
reads it, presidential immunity would stretch to cover every phase of criminal
proceedings, including investigations, grand jury proceedings and subpoenas,
indictment, prosecution, arrest, trial conviction, and incarceration. That
constitutional protection presumably would encompass any conduct, at any time,
in any forum whether federal or state, and whether the President acted alone or
in concert with other individuals. Hence, according to this categorical
doctrine as presented in this proceeding, the constitutional dimensions of the
presidential shield from judicial process are virtually limitless: Until the
President leaves office… [this includes crimes committed in*] his official
capacity, but also to ones arising from his private affairs, financial
transactions, and all other conduct undertaken by him as an ordinary citizen
both during and before his tenure in office."
"Moreover,
on this theory the President's special dispensation from the criminal law's
purview and judicial inquiry would embrace not only the behavior and activities
of the President himself, but also extend derivatively so as to potentially
immunize the misconduct of any other person, business affiliate associate, or
relative who may have collaborated with the President in committing purportedly
unlawful acts, and whose offenses ordinarily would warrant criminal
investigation and prosecution of all involved.”
The judge concluded his introduction with these words:
“Because
this finds aspects of such a [Presidential] doctrine repugnant to the nation' s
governmental structure and constitutional values, and for the reasons further
stated below it ABSTAINS from adjudicating this dispute and DISMISSES the
President' s suit.”
The
Trump Administration immediately appealed.
President
Trump’s immunity doctrine stemmed from a criminal investigation to see if
Trump’s non-profit organization falsified business records.
In
summary, Cyrus R. Vance, Jr. is a District Attorney in New York. He empaneled a
grand jury to probe whether the Trump Organization falsified business records
related to money paid to Stormy Daniels and Karen McDougal prior to the 2016
Presidential Election to keep them quiet about his sexual relationships with
them. These were payoffs funneled through Donald Trump’s personal lawyer, Michael
Cohen. Some of these payments were by checks made out to Cohen from the Trump
Organization, a non-profit entity registered in New York. These payments were
categorized as legal fees on the books of this non-profit.
Paying
to keep damaging information from the public during an election is a violation
of campaign finance laws. Using money donated to a non-profit organization for
personal use is also a violation of the law, as is falsifying business records to
cover up such misdeeds.
The
grand jury investigating the business records of the Trump Organization requires
documents, tax records and the cooperation of Mazars USA, the accounting firm
hired by the Organization. Trump sent a letter to Mazars USA and forbade the
company from releasing his tax records. The jury subpoenaed the company to
release the last eight years of Donald Trump’s tax returns. That’s when Trump
made his move on unlimited Executive power.
How
this constitutional crisis resolves is critical to our republic. By elevating
William Barr to Attorney General, Trump, and the Republicans have removed any
chance that the Barr-lead Justice Department will ever challenge any illegality
committed by the President or his administration. By ramming through two
ultra-partisan Supreme Court Justices, and by seating so many highly partisan
judges to the federal bench, Trump and the Republicans are betting that all
legal challenges to both Congressional oversights, or judicial challenges to
Trump’s limitless criminal immunity doctrine, will ultimately fail. The
complicity of Congressional Republicans in installing this all-powerful
authoritarian government should now be obvious. Articles of impeachment should still
be aggressively pursued, but it is no longer a given that an impeachment conviction
in the Senate would remove Trump from office. Under his unlimited criminal
immunity doctrine, it isn’t even certain that he will honor Presidential
election results, or even allow future elections.
Here
is where I believe we stand. If the courts don’t uphold the rule of law, all
hope for the republic is lost. If the courts do uphold the rule of law after
House impeachment and Senate conviction, then it will be up to some combination
of the President’s willing capitulation, law enforcement, the U.S. military or
massive national citizen protests to assure that Donald Trump leaves office. If
the Senate won’t convict Trump of impeachable offenses, it is up to the voters
to set the stage for the same options mentioned above. If Donald Trump is
reelected, however, it will probably be too late to save our Republic from
dictatorial rule.