Prosecuting Trump is a good idea
Eric Posner, law professor and son of Judge Richard Posner, writes in the New York Times it’s a bad idea to prosecute Donald Trump after he leaves office. He’s wrong.
Posner’s argument is some pretty weak tea. He doesn’t mention Michael Cohen. Trump is an unindicted co-conspirator in the crimes for which Cohen went to prison. The crimes have already been adjudicated, and there’s both witness testimony and documentary evidence connecting Trump to the crimes. This is the proverbial slam dunk if a prosecutor were to choose to prosecute it. There’s been some (unhinged) wailing about “two tier systems of justice,” but for Trump to escape consequences for the crimes he directed Cohen to commit while Cohen has been criminally punished is blatant two-tier justice. The only reason Trump wasn’t indicted also is he was POTUS.
Posner also fails to note the prosecutor whose investigation Trump attempted to obstruct was a Special Prosecutor. The entire point of the Special Prosecutor regulations, as we’ve discussed in the thread on Durham being named Special Prosecutor, is to wall off investigations which present a conflict of interest for the DOJ, whether because they involve the President or the DOJ itself. So Posner is wrong. Mueller didn’t work for Trump. He couldn’t be fired by Trump. Trump’s attempts to shut down the investigation was obstruction, and had he not resigned one of the impeachment charges facing Nixon was obstruction over the Saturday Night Massacre. Ford forestalled a reckoning in the courts, leaving it an open legal question, but the text of the regulations, the history of Anglo-Saxon jurisprudence, and common sense tell us this notion a President can’t commit obstruction of justice is a dangerous, authoritarian fantasy.
It’s true the Act which appropriated monies for Ukraine in their defense against Russian aggression didn’t attach criminal penalties should Trump or some other member of the Executive Branch unlawfully impound it, so I wouldn’t expect him to be indicted for the impoundment, but Posner’s claim it would be difficult to show bribery or extortion rings hollow. Even in the partial not-a-verbatim-transcript Trump released to the public shows an extortionate quid pro quo. Zelensky himself spells it out on page 5 of the “transcript.” We don’t know what the rest of the “transcript” says because Trump has continued to hide it from the public and Congress, but it’s a safe bet it doesn’t exonerate Trump or it would have been part of the release.
Regardless of the facts, any prosecution of Trump likely will get billed as a “witch hunt” and make him a martyr among his fan base. We’re going to get that anyway as he and others push the false claims of election fraud. There’s as much point in considering that as a consequence of prosecution as there is considering the tide coming in. What’s more, a public, transparent process will mitigate that, as will a public trial or trials. Trump refused to release to Congressional oversight the communications over the impoundment of the Ukraine aid monies. Some of them we’ve seen pursuant to FOIA requests (which underscores how much of a breach of the Constitution his refusal to submit to Congressional oversight was), and getting those into Congress’s hands and into public view will blunt the “martyr” risk, as will getting out more of the evidence on the other crimes.
We’re a nation of laws. The rule of law is one of the foundations of this nation and Republic. Having anyone, even the President, above the law is anathema to what we are.
