America On The Brink Thanks To donald j. trump...

 American democracy and the rule of law on the brink of collapse.

EARLY IN NOVEMBER, as President Trump challenged the integrity of the election with baseless lawsuits, Joe Biden delivered his first speech as president-elect, declaring it a “time to heal.” It was a phrase that many Americans were surely longing to hear, given the precarious state of the nation’s political culture. But it was also one that carried significant historical weight and possible implications for the future. When President Gerald R. Ford pardoned Richard Nixon for his role in the Watergate scandal, he, too, spoke about the need for “healing.” (Ford titled his subsequent memoir “A Time to Heal.”) When President Lincoln delivered his second inaugural address during the waning days of the Civil War, he spoke in similar terms about the imperative to “bind up the nation’s wounds.” Whether Biden intended to do so, his words provided an early signal about one of the first questions he is going to confront as president: What to do about Donald Trump? Biden faces many daunting challenges — mitigating the ongoing damage from the pandemic, repairing institutions, restoring faith in government — but how to deal with his predecessor’s flagrant and relentless subversion of the rule of law is in many ways the most vexing.

Last year, one of Trump’s lawyers, William Consovoy, memorably argued in open court that a sitting president could shoot a man in public and not be prosecuted. The legal validity of this claim notwithstanding, there is nothing to protect a former president from prosecution. No ex-president has ever been indicted before, but no president has ever left office with so much potential criminal liability.

As the election approached and the polls pointed to a Trump defeat, there was a growing sense that his moment of reckoning was coming. He was, after all, already the subject of a criminal investigation by the district attorney of Manhattan as well as a civil investigation by the attorney general of New York State. Both of those inquiries concern his conduct as a private businessman. The bigger and infinitely more fraught question is how to address Trump’s potentially criminal acts as a political candidate and president. Those would most likely be federal crimes that could only be prosecuted by the federal government.

As president, Trump cavalierly called for the imprisonment of political opponents, shattering a longstanding democratic norm. This is not a precedent to follow lightly. Presidents have historically gone out of their way to avoid using the power of the office to pursue their political rivals. When President George H.W. Bush pardoned six Reagan White House officials who were involved in the Iran-contra affair, he warned of “a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences.” Bush was sparing members of his own party. President Obama created what is perhaps an even more relevant precedent for Biden by choosing not to prosecute members of the George W. Bush administration who had authorized the unlawful torture of detainees; his nominee for attorney general, Eric Holder, used the very same phrase — the criminalization of policy differences — when the issue came up during his House confirmation hearings. Over the summer, I asked David Cole, the national legal director of the American Civil Liberties Union, what he thought would happen to Trump if he lost the election. “My gut is that you’re very unlikely to see a federal prosecution,” he told me. “For me, the real accountability will be on Nov. 3, if he is sent packing from the White House.”

It was a sentiment that I heard from a lot of legal thinkers and former government officials in the months leading up to the election: The visions of Donald Trump in an orange jumpsuit were more fantasy than reality. His true moment of reckoning would happen at the ballot box. But the election has now come and gone, and Trump, along with most of his party and many millions of Americans, has refused to accept the results. Accountability feels as if it might be further away than ever.

The stakes of an indictment would be very high. The commander in chief’s broad powers under the Constitution could make it difficult to secure convictions. The damage to democracy that would be caused by a failed prosecution of a former president is hard to even fathom. An acquittal could also set back future efforts at accountability, and embolden aspiring abusers of authority. Even once he’s out of office, Trump is going to be a powerful force in the country’s political life; putting him on trial for his conduct as president would be tantamount to putting on trial the more than 72 million Americans who voted for his re-election. One institution that Biden will no doubt be focused on trying to rebuild is the Justice Department; prosecuting Trump could complicate any effort to restore the agency’s reputation for independence and integrity. There are logistical issues, too. Prosecuting a former president could mean convicting him, and the idea of sending a former president to prison does indeed seem fantastical.

If history is any guide, the desire to “move on” will only grow stronger in the weeks and months ahead. But how does the country move on from a president whose disregard for the law has been so constant and pervasive? Every president seeks to exploit the immense power of the office, but Trump’s exploitation of this power represented a difference in both degree and kind. Never before had a president leveraged so much of the “energy” of the executive branch — Alexander Hamilton’s word — to advance his personal interests. Presidents Reagan and George W. Bush stretched the limits of their authority in the name of national security. Trump stretched the limits of his authority not just to enrich himself and his family but to block investigations into his personal and official conduct and to maintain his grip on power.

Trump’s conduct as president was a product of his unique character. But it was also enabled by the office. The accumulation of decades’ worth of lawmaking, legal theorizing and historical precedent had given the president almost total freedom from accountability, rendering useless any seemingly applicable tool of law enforcement. Under the special-counsel regulations, the independent prosecutor who was charged with investigating the Trump campaign’s links to Russia effectively served at the pleasure of the Trump administration. The federal prosecutors who indicted Michael Cohen for an illegal campaign-finance scheme were bound to respect a decades-old legal opinion from the Justice Department asserting that the president — who, according to Cohen, directed him to carry out the scheme — was immune from criminal prosecution. There was nothing, and no one, to stop Trump from ordering numerous officials not to cooperate with his impeachment inquiry. ...

And there you have it folks. America on the verge of becoming nothing more than a Banana Republic unless the forces of trump and Trumpism are stopped. Stopped COLD and effectively obliterated from our body politic. Whether America has retained enough of its former (pre trump) self to survive remains to be seen. This dude will NOT bet that it does.

Continue reading BELOW the FOLD.

Via: Memeorandum