The problem of presidential immunity

benfell

See update for January 24, 2021, at end of post.

It seems, all of a sudden, we have a problem not just with presidential delusional raging narcissism, but with presidential immunity, the latter of which Donald Trump risks losing on inauguration day, should the November 3 election results go against him. To quote Jane Mayer in the New Yorker:

Two of the investigations into [Donald] Trump are being led by powerful state and city law-enforcement officials in New York. Cyrus Vance, Jr., the Manhattan District Attorney, and Letitia James, New York’s attorney general, are independently pursuing potential criminal charges related to Trump’s business practices before he became President. Because their jurisdictions lie outside the federal realm, any indictments or convictions resulting from their actions would be beyond the reach of a Presidential pardon. Trump’s legal expenses alone are likely to be daunting. (By the time Bill Clinton left the White House, he’d racked up more than ten million dollars in legal fees.) And Trump’s finances are already under growing strain. During the next four years, according to a stunning recent Times report, Trump—whether reëlected or not—must meet payment deadlines for more than three hundred million dollars in loans that he has personally guaranteed; much of this debt is owed to such foreign creditors as Deutsche Bank. Unless he can refinance with the lenders, he will be on the hook. The Financial Times, meanwhile, estimates that, in all, about nine hundred million dollars’ worth of Trump’s real-estate debt will come due within the next four years. At the same time, he is locked in a dispute with the Internal Revenue Service over a deduction that he has claimed on his income-tax forms; an adverse ruling could cost him an additional hundred million dollars. To pay off such debts, the President, whose net worth is estimated by Forbes to be two and a half billion dollars, could sell some of his most valuable real-estate assets—or, as he has in the past, find ways to stiff his creditors. But, according to an analysis by the Washington Post, Trump’s properties—especially his hotels and resorts—have been hit hard by the pandemic and the fallout from his divisive political career. “It’s the office of the Presidency that’s keeping him from prison and the poorhouse,” Timothy Snyder, a history professor at Yale who studies authoritarianism, told me.[1]

Trump has the misfortune to be being pursued by state authorities. But because he’s president, federal authorities have essentially abandoned their investigations and potential prosecutions and he has additional means to stall the state authorities.[2] Hence the issue of presidential immunity.

As I noted in my last blog entry,[3] this “may well be a very contentious election, the results of which Trump has threatened to resist and appears to be laying groundwork to resist with the full power of his office.[4]”[5]

We might note that while especially critical of Gerald Ford’s pardon of Richard Nixon and also citing other ex-presidential situations, Mayer uses Bill Clinton’s legal situation—he had perjured himself over incidents with Paula Jones and Monica Lewinsky[6] that cannot reasonably be separated from his power at the time of those relationships and may therefore constitute sexual assault or rape[7]—to help elucidate Donald Trump’s predicament four times.[8] Clinton remains, of course, influential in the Democratic Party and an architect of neoliberal policy, which being utterly discredited intellectually,[9] has degenerated into bipartisan dogma which, itself, should be considered criminal.

More fundamentally, a culture of presidential impunity, which Mayer critiques as a consequence of Ford’s pardon of Nixon,[10] is pervasive in the bipartisan duopoly. This likely only partly explains Barack Obama’s refusal to prosecute George W. Bush or his administration for war crimes.[11] Another part of that explanation would be a perceived need for Obama, his administration, and successors to be able to continue these crimes.[12]

But oh yeah, vote for Joe Biden, Obama’s vice president, because it’s Trump alone, who threatens our “democracy,”[13] that is, until Biden gets elected and like the president he served under, does absolutely nothing about his predecessor’s crimes. Because you know, like Obama said, “we need to look forward as opposed to looking backwards.”[14]

Update, January 24, 2021: George Conway, III, lays out the case for prosecuting Donald Trump now that he’s out of office,[15] which I guess to many people will seem like a no-brainer.

If law is to apply, after all, it should apply to the rich and powerful as it does the poor. But I’ve previously remarked on the problem of presidential immunity,[16] and a larger picture notes that Conway is a co-founder of the Lincoln Project, a project of a tendency of conservatism—neoconservatism—that has previously advocated the theory of the unitary executive,[17] the very and already extreme theory that Conway is really complaining about Trump taking to extreme.[18]

Zooming out still further, prosecuting Trump seems too superficial an answer to the problem of justice itself in which we have a distinctly harsher and more criminal system for the poor, especially of color, and a distinctly more lenient and civil one for the rich, especially whites,[19] no answer at all to the question of why Trump was elected in the first place[20] to obtain the immunity he has now lost,[21] nor to the roots of endemic and systemic injustice itself.[22] Yes, I think Trump should be prosecuted, but to do so still feels facile.

  1. [1]Jane Mayer, “Why Trump Can’t Afford to Lose,” New Yorker, November 1, 2020, https://www.newyorker.com/magazine/2020/11/09/why-trump-cant-afford-to-lose↩
  2. [2]Jane Mayer, “Why Trump Can’t Afford to Lose,” New Yorker, November 1, 2020, https://www.newyorker.com/magazine/2020/11/09/why-trump-cant-afford-to-lose↩
  3. [3]David Benfell, “When the legitimacy of the system itself is threatened,” Not Housebroken, October 31, 2020, https://disunitedstates.org/2020/10/31/when-the-legitimacy-of-the-system-itself-is-threatened/↩
  4. [4]Max Boot, “What if Trump loses but insists he won?” Washington Post, July 6, 2020, https://www.washingtonpost.com/opinions/2020/07/06/what-if-trump-loses-insists-he-won/; Rosa Brooks, “What’s the worst that could happen?” Washington Post, September 3, 2020, https://www.washingtonpost.com/outlook/2020/09/03/trump-stay-in-office/; Chris Cillizza, “What happens if Donald Trump refuses to admit he lost in 2020?” CNN, May 6, 2019, https://amp.cnn.com/cnn/2019/05/06/politics/donald-trump-2020-election/index.html; Democracy Now!, “What If Trump Refuses to Accept a Biden Victory? A Look at How Electoral Chaos Could Divide Nation,” August 3, 2020, https://www.democracynow.org/2020/8/3/nils_gilman_2020_election_scenarios; Barton Gellman, “The Election That Could Break America,” Atlantic, September 23, 2020, https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/; Colby Itkowitz, “Trump won’t commit to a ‘peaceful transfer of power’ if he loses,” Washington Post, September 23, 2020, https://www.washingtonpost.com/politics/trump-transfer-of-power/2020/09/23/be6954d0-fdf0-11ea-b555-4d71a9254f4b_story.html; Ed Kilgore, “How Trump Is Trying to Ensure an Early Election Night Lead,” New York, August 13, 2020, https://nymag.com/intelligencer/2020/08/trump-voters-could-vote-in-person-and-give-him-early-lead.html; Eric Lach, “What Happens if Donald Trump Fights the Election Results?” New Yorker, August 21, 2020, https://www.newyorker.com/news/campaign-chronicles/what-happens-if-donald-trump-fights-the-election-results; Robert McCartney, “Here’s one way Trump could try to steal the election, voting experts say,” Washington Post, August 17, 2020, https://www.washingtonpost.com/local/heres-one-way-trump-could-try-to-steal-the-election-voting-experts-say/2020/08/16/b5bf0c2a-de66-11ea-b205-ff838e15a9a6_story.html; Peter Nicholas, “Trump Could Still Break Democracy’s Biggest Norm,” Atlantic, June 16, 2020, https://www.theatlantic.com/politics/archive/2020/06/when-does-trump-leave-white-house/613060/; Greg Sargent, “On Hannity’s show, Trump reveals his corrupt, panicky endgame,” Washington Post, October 9, 2020, https://www.washingtonpost.com/opinions/2020/10/09/hannity-trump-reveals-his-corrupt-panicky-endgame/; Felicia Sonmez, “Trump declines to say whether he will accept November election results,” Washington Post, July 19, 2020, https://www.washingtonpost.com/politics/trump-declines-to-say-whether-he-will-accept-november-election-results/2020/07/19/40009804-c9c7-11ea-91f1-28aca4d833a0_story.html; Timothy E. Wirth and Tom Rogers, “How Trump Could Lose the Election—And Still Remain President,” Newsweek, July 3, 2020, https://www.newsweek.com/how-trump-could-lose-election-still-remain-president-opinion-1513975↩
  5. [5]David Benfell, “When the legitimacy of the system itself is threatened,” Not Housebroken, October 31, 2020, https://disunitedstates.org/2020/10/31/when-the-legitimacy-of-the-system-itself-is-threatened/↩
  6. [6]Douglas O. Linder, “The Impeachment Trial of President William Clinton,” University of Missouri, Kansas City, 2005, http://law2.umkc.edu/faculty/projects/ftrials/clinton/clintontrialaccount.html; Rutgers University, “The Impeachment of President Clinton,” n.d., copy in possession of author↩
  7. [7]David Benfell, “Yes, Hillary Clinton must answer for Bill Clinton’s sexual assaults,” Not Housebroken, October 10, 2016, https://disunitedstates.org/2016/10/10/yes-hillary-clinton-must-answer-for-bill-clintons-sexual-assaults/↩
  8. [8]Jane Mayer, “Why Trump Can’t Afford to Lose,” New Yorker, November 1, 2020, https://www.newyorker.com/magazine/2020/11/09/why-trump-cant-afford-to-lose↩
  9. [9]Mark Blyth, Austerity: The History of a Dangerous Idea (Oxford, UK: Oxford University, 2013); David Fickling, “The Gig Economy Compromised Our Immune System,” Yahoo!, July 25, 2020, https://finance.yahoo.com/news/gig-economy-compromised-immune-system-000048670.html; Amir Fleischmann, “The Myth of the Fiscal Conservative,” Jacobin, March 5, 2017, https://jacobinmag.com/2017/03/fiscal-conservative-social-services-austerity-save-money; Jason Hickel, “Progress and its discontents,” New Internationalist, August 7, 2019, https://newint.org/features/2019/07/01/long-read-progress-and-its-discontents; Daniel Stedman Jones, Masters of the Universe: Hayek, Friedman, and the Birth of Neoliberal Politics (Princeton, NJ: Princeton University, 2012); Robert Kuttner, “Austerity never works: Deficit hawks are amoral — and wrong,” Salon, May 5, 2013, http://www.salon.com/2013/05/05/austerity_never_works_deficit_hawks_are_amoral_and_wrong/; Dennis Loo, Globalization and the Demolition of Society (Glendale, CA: Larkmead, 2011); Thomas Piketty, Jeffrey Sachs, Heiner Flassbeck, Dani Rodrik and Simon Wren-Lewis, “Austerity Has Failed: An Open Letter From Thomas Piketty to Angela Merkel,” Nation, July 6, 2015, http://www.thenation.com/article/austerity-has-failed-an-open-letter-from-thomas-piketty-to-angela-merkel/; John Quiggin, “Austerity Has Been Tested, and It Failed,” Chronicle of Higher Education, May 20, 2013, http://chronicle.com/article/Austerity-Has-Been-Tested-and/139255/; David Stuckler and Sanjay Basu, “How Austerity Kills,” New York Times, May 12, 2013, http://www.nytimes.com/2013/05/13/opinion/how-austerity-kills.html; David Stuckler and Sanjay Basu, “Paul Krugman’s right: Austerity kills,” Salon, May 19, 2013, http://www.salon.com/2013/05/19/paul_krugmans_right_austerity_kills/↩
  10. [10]Jane Mayer, “Why Trump Can’t Afford to Lose,” New Yorker, November 1, 2020, https://www.newyorker.com/magazine/2020/11/09/why-trump-cant-afford-to-lose↩
  11. [11]Glenn Greenwald, “Obama’s justice department grants final immunity to Bush’s CIA torturers,” Guardian, August 31, 2012, https://www.theguardian.com/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer; Elizabeth Holtzman, “Statutes of Limitations Are Expiring on Some Bush Crimes,” Nation, March 20, 2013, https://www.thenation.com/article/statutes-limitations-are-expiring-some-bush-crimes/; David Johnston and Charlie Savage, “Obama Reluctant to Look Into Bush Programs,” New York Times, January 11, 2009, http://www.nytimes.com/2009/01/12/us/politics/12inquire.html↩
  12. [12]David Benfell, “System justification and the 2014 election,” Not Housebroken, September 24, 2014, https://disunitedstates.org/2014/09/24/system-justification-and-the-2014-election/; David Benfell, “‘Are we no longer a country governed by the rule of law?’” Not Housebroken, October 25, 2014, https://disunitedstates.org/2014/10/25/are-we-no-longer-a-country-governed-by-the-rule-of-law/↩
  13. [13]The U.S. system is not a “democracy” and was never intended to be one. David Benfell, “A constitutional oligarchy: Deconstructing Federalist No. 10,” Not Housebroken, June 7, 2020, https://disunitedstates.org/2020/04/22/a-constitutional-oligarchy-deconstructing-federalist-no-10/↩
  14. [14]Barack Obama, quoted in David Johnston and Charlie Savage, “Obama Reluctant to Look Into Bush Programs,” New York Times, January 11, 2009, http://www.nytimes.com/2009/01/12/us/politics/12inquire.html↩
  15. [15]George T. Conway, III, “Donald Trump’s new reality,” Washington Post, January 22, 2021, https://www.washingtonpost.com/opinions/2021/01/22/trump-charges-george-conway/↩
  16. [16]David Benfell, “The problem of presidential immunity,” Hot Housebroken, November 1, 2020, https://disunitedstates.org/2020/11/01/the-problem-of-presidential-immunity/↩
  17. [17]Jonathan Stevenson, “Trump’s Lingering Menace,” New York Review of Books, January 9, 2021, https://www.nybooks.com/daily/2021/01/09/trumps-lingering-menace/↩
  18. [18]George T. Conway, III, “Donald Trump’s new reality,” Washington Post, January 22, 2021, https://www.washingtonpost.com/opinions/2021/01/22/trump-charges-george-conway/↩
  19. [19]Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).↩
  20. [20]David Benfell, “Why Donald Trump won,” Not Housebroken, November 9, 2016, https://disunitedstates.org/2016/11/09/why-donald-trump-won/↩
  21. [21]Jane Mayer, “Why Trump Can’t Afford to Lose,” New Yorker, November 1, 2020, https://www.newyorker.com/magazine/2020/11/09/why-trump-cant-afford-to-lose↩
  22. [22]Wanda D. McCaslin and Denise C. Breton, “Justice as Healing: Going Outside the Colonizers’ Cage,” in Handbook of Critical and Indigenous Methodologies, eds. Norman K. Denzin, Yvonna S. Lincoln, and Linda Tuhiwai Smith (Thousand Oaks, CA: Sage, 2008), 511-529.↩