Trump's Apologists

Selective thinking about the Rule of Law

CORRECTION: It’s John Yoo, not Woo.

John Yoo, the Heller Professor of Law at UC Berkeley, joins a long list of distinguished people who feel compassion for Trump. They're convinced the man's been horribly mistreated by our legal system.

I am not.

Yoo writes: "Trump surely would have paid for [Stormy’s] silence regardless of whether he was running for office (the test for determining what is a campaign expenditure)."

Really? That self-proclaimed tight wad would have forked over 150K in 2016 were he a private citizen just working on his next real estate deal?  In that scenario, a Page Six Stormy headline in 2016 would have been reputation-enhancing for The Donald. He would have publicly denied it, of course, but privately relished the publicity. Why would a private citizen Trump, eight years ago, have paid off Stormy, Professor Yoo? To protect Melania. Yes, of course.

Yoo continues: "After this Trump trial, any city, county, or state prosecutor might be encouraged to prosecute any federal officer for conjured violations of a state’s criminal law or other patently partisan reasons. A state DA in upstate New York, for example, could prosecute former president Barack Obama for murder for having ordered a drone strike on al-Qaeda leaders that included an American from Buffalo."

Surely, that would have happened already were it anything other than a fantastical conjecture---a law professor dreaming up a hypothetical. There must have been some bad stuff (murder, even?) that any (or many?) of our first forty-four presidents did while on the job that could have led to a felony charge once they left office. Yet, nothing like that ever happened. Before Trump.

The simple explanation is that none of our previous presidents ever behaved like him. Sorry, but I’m not seeing the equivalence between Clinton having sex with Monica, lying about it and about Paula Jones…. and the following seven outlandish-likely-illegal things The Donald did while he had keys to the White House. I’m not going to name the Big Seven, because you all know what they are, and I don’t want to get sidetracked on whether the count is Twelve or Five.

Before Trump, the closest we've come to a president going to jail was the arrest of President Grant for speeding in his carriage down 13th Street in Washington in 1872.

Official conduct by a sitting president, Professor Yoo surely knows, as he authored the "torture memos" during Bush 2's administration---and as the Supreme Court will tell us at the end of June-—is immune from criminal liability. That’s a sensible result. Nothing that Trump has been indicted for, however, is official conduct. This, too, the Supreme Court will clarify in a couple of weeks. No, Obama will not be a defendant in federal court in Buffalo, Professor Yoo, for having ordered that hypothetical drone strike in Iraq, as that certainly would have been protected official conduct by the commander-in-chief.

Note: The hush money case was based on a weak, or at best, a novel legal theory and I've already written my defense of Trump On this, Professor Yoo and I agree. However, a weak or untested legal theory supporting an indictment is not evidence that the rule of law was flagrantly violated by Manhattan District Attorney. That Alvin Bragg ran on a campaign platform that promised he would follow the facts in the Trump investigation, and told the electorate that his office had previously sued Trump for various policies he implemented while president does not prove anything, and certainly will not back up the charge that Bragg went after Trump without a legal foundation. Trump apologists have conveniently forgotten that it was Bragg, after he was elected DA, who decided to pause the investigation of Trump, as he needed to gather additional facts and reconsider the matter.

Even if Yoo's prediction pans out—-a very Big If—-former presidents indicted in the future on partisan, baseless charges will have ample wherewithal to hire lawyers and defend themselves. Modern presidents do not leave office as paupers and won't have to use public defenders. Even the relatively impoverished Jimmy Carter left the White House with plenty of money available to assist him in doing whatever he wanted to in his post-presidency. If these (imaginary) charges are just political payback, as Professor Yoo believes they will be, our future presidents will get a hung jury, or even an acquittal. In any event, the republic will move on, undamaged. None of John Yoo’s hypotheticals will be realized because our future presidents won't follow Donald's playbook. They will finish their terms, as all their predecessors have, save one, with a mixed scorecard, a hash of accomplishments, failures and missed opportunities. None of them will even vaguely approximate Trump.

The Trump apologists who insist that they're defending the 'rule of law" do so only selectively. They're quick to insist that the stiff rod of the law must be applied to illegal immigrants, for instance---as it should be---yet when it comes to Trump's conduct they want a flexible stick.

None of the three federal indictments should have been brought, they argue, because they're political acts by Biden's Justice Department, and like the hush money case, are based on flawed legal theories. They're just partisan politics masquerading as a legal charge sheet. The proper application of the rule of law, they tell us, is to suspend the law’s application to Trump. Leave him alone and we can consider indicting him after the 2024 election. The political process of choosing the next presidents is paramount; the law can wait its turn. Their reasoning, they insist, has nothing to do with gaining a political advantage, when it’s clear that is all it’s about. What’s politically expedient becomes the rule of the law for Team Trump. They’re blind to how their so-called rule of law arguments are nothing more than partisan cackling.

If Manhattan District Attorney's case against Trump was pure political payback, with no foundation in the law, it will not withstand appellate review. Bringing the case in the first instance is not, John Yoo, an abandonment of the rule of law. Trump's apologists claim, correctly, that in most cases involving falsification of business records in New York, the charges are handled as misdemeanor corporate malfeasance. A fine is paid, and life goes on. Yes, but most companies that fake their business records aren't micromanaged by a man who was running for president. That raises the stakes here and makes this something more than just a matter of phony bookkeeping.  If the appellate courts reverse Trump's conviction, his apologists will quickly change their tune and gleefully announce that the rule of law has finally prevailed. They will surely do this, as the Rule is good and to be respected when it rules in their favors. Like Trump, his apologists are not guided by principle, but focused on the outcome. To them, the world is a series of transactions and the Good is prevailing in as many of them as possible.

Trump's apologists are defending a person whose entire adult life has been transactional. If the deal worked for Donald, he liked it. How pathetic are these Trump apologists in their support for a man who has neither understanding nor respect for the idea that the law applies equally to everyone.

As Trump's mentor, Roy Cohn, once said, "I decided long ago to make my own rules.”