When the "Rule of Law" Becomes Ludicrous
Donald Trump has a history of using the courts to avoid responsibility for his actions; will he avoid consequences again?
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Despite being mocked by many pundits and opponents for a glaring lack of intellectual curiosity or accomplishment, the one thing Donald Trump knows a great deal about is how to take advantage of our courts of law, both as a shield and as a cudgel. According to an analysis by USA Today published in June 2016, “over the prior three decades, Trump and his businesses had been involved in 3,500 legal cases in U.S. federal and state courts… In the 1,300 cases where the record establishes the outcome, Trump settled 175 times, lost 38, won 450, and had another 137 cases end with some other outcome. Trump or one of his companies were plaintiffs in 1,900; defendants in 1,450; and bankruptcy, third party, or other in 150.”
These were civil cases, mostly dealing with private sector commercial disputes (such as Trump’s businesses not paying for services). For Trump, a lawsuit is a weapon of intimidation, wielded to coerce businesses whose pockets are not as deep as his to either settle or face mounting legal fees. In line with this, his attorneys used various legal maneuvers to drag a suit out and drain the opposing party’s wallet. The goal was to force counterparties to pay a lot less than was originally owed. In those instances where things did not go his way, he would claim he was a victim, lashing out as he did in June 2016 at Federal Judge Gonzalo Curiel who was presiding over litigation involving the ersatz Trump University. Curiel, the American-born son of Mexican immigrants, had made rulings unfavorable to defendant Trump, who publicly accused Curiel of having an “absolute conflict” because of his Mexican heritage and Trump’s stance on immigration.
As President, Trump was more constrained by the rules of government service than he was in the wheeler-dealer world of commercial real estate. Nonetheless, while in office, he violated the letter of the law* as well as its spirit. He survived two impeachment trials simply because Republican Senators voted along party lines not to sustain the charges. Now, out of office, his legal status is the same as any other private citizen. Unprotected by the Presidency, he faces potential exposure to criminal prosecution for both his role in the various schemes to remain in office after he lost the 2020 election and his illegal removal of records- including classified files- from the White House.
The latter case reached a crescendo August 8 when the FBI executed a search warrant at Trump’s Mar-a-Lago estate/country club to recover government files believed to be stored there. (Click here for a descriptive timeline of the events leading to the FBI search.) On cue, Trump’s legal team began rolling out his favorite legal strategy- delay- with a series of motions. Most experts, many of them experienced Federal prosecutors, felt that the government’s case was solid and would withstand the legal assault. When Trump pushed to have the warrant made public- an action he was within in his rights to do himself but chose not to- the government called his bluff and released it with some redactions. When Trump’s team went further and petitioned the court (the Federal District Court in the Southern District of Florida) for the release of the affidavit (the FBI agent’s filing detailing the reasons for requesting the search warrant), the government again complied, this time presenting a more heavily redacted version to protect sensitive national security information. Despite the redactions, the affidavit reflected the strength of the government’s cases in both violations of the Espionage Act and of the Presidential Records Act.
Trump had still not exhausted his arsenal of delaying tactics. His lawyers filed a motion in another Southern District court to request that a Special Master- an independent party- review the documents seized on August 8 to learn if any were subject to attorney/client or executive privilege. This past Monday, the judge, Aileen Cannon, granted Trump’s motion. She also went beyond what was originally requested and ordered the DoJ and FBI to stop including the seized documents in any investigation of Trump until the review was complete. Since Judge Cannon was a lame-duck appointment of Donald Trump and a member of the Federalist society, there were questions about her ability to be impartial.
Undeterred, today the Justice Department filed briefs with Judge Cannon. They notified her that would be appealing her decision to the 11th Circuit Court of Appeals. Also, as the Washington Post reported this afternoon,
In a separate, simultaneous court filing, prosecutors asked Cannon to stay her Sept. 5 decision on two key points: her order to temporarily halt a significant portion of the FBI investigation into the potential mishandling of classified information, and to allow a special master to review the classified material that is among the documents seized as part of a court-authorized search at Trump’s Mar-a-Lago club on Aug. 8. Ultimately, the Justice Department said that a special master could be appointed, but argued that the judge should prohibit the special master from reviewing classified documents. The special master would be still able to sort through personal documents and other items the FBI also seized, setting aside materials as necessary, the filing says.
For the non-lawyers among us, it might appear that we are once again witnessing Trump slithering out of an apparent open-and-shut legal dilemma. Removing records from the White House at the end of his term is a violation of the Presidential Records Act. Possession of documents related to national defense, whether or not they are classified, is a crime under the Espionage Act of 1917. But, as a nation that, however imperfectly, is built on the rule of law, we must accept the arcane detail and slow pace of the judicial process. Despite Trump’s efforts to prolong the process, the Justice Department under Merrick Garland is adhering to its traditional methodical, meticulous case-building ways.
“When you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When you have neither, pound the table.”
It would seem the DoJ has both the facts and the law on its side. And it seems that they are prepared to deal with whatever ridiculous obstruction is thrown in their path.
*Special Counsel Mueller’s report indicated that evidence indicated Trump might well be indictable for obstruction of justice if Justice Department policy did not prohibit charging a sitting President.
Even respecting the rule of law, many of us interested onlookers bemoan the slow pace of the law, the excessively meticulous sealing airtight of FBI and Department of Justice cases against anti-Americans acting against our nation right up to the ex-president's doors. We are dismayed by the pacing of case building for several reasons. 1. No case is ever airtight in the genre of cable TV stories typically brought to conclusion by the end of the hour show. In my own experience with 6 and 12 person juries in local and federal cases, jurors can make decisions based on the facts given by district attorneys and attorneys general with less than airtight evidentiary tracks. Most of us can tell the difference between such small gaps in evidence and gaping holes leading to defense attorney wins as they generate reasonable doubt that doesn't measure up to common sense and ordinary actions of people including criminals. So excessive delays by AG Garland in presenting cases for trial are irritating.
Once, as jury foreman, I pointed out to the one reluctant juror failing to vote for conviction in a drug case, the difference between soap operate trials and real evidentiary trials with small gaps in evidence like the one we were weighting, and immediately got the unanimous guilty vote.
2. Delaying the onset of importance cases like this quasi-espionage, quasi-document-theft one with the ex-president can open the door to spurious delay. This is often by design of the hard right and its leaders so often lately under indictment or within trials. Justice delayed is justice foregone. Witness our own Bill of Rights demands a 'speedy trial'. Remember the case of Mueller's for obstruction of justice and collusion/cooperation between the ex-president and foreign interests who were Russians. With such delay comes the greater possibility of political interference to postpone, or even cancel, cases. The Mueller case, just mentioned, is infamous for its truncated FBI search for witnesses and evidence by partisan cabinet officials and the ex-president himself leading to dismissal of impeachment articles from the Senate trial, uniformly by Republican Senators. In the current documents case, with the Congressional election in 2 months, Republican takeover of that chamber might play havoc with resources and other obstruction moves by irratic 'Speaker' McCarthy. So more deliberate speed is called for.
So AG Garland should consider accelerating his timeline for bring the clearly guilty ex-president to trial and quick conviction. No 'guideline' of Justice to avoid political-seeming trials or other actions within 'election season' should prevail to bring to justice a guy who so cavalierly jeopardizes national security with secret documents and thumbs his nose at all legal processes--evidenced over decades in general and his term of office in particular. Let's get off the dime, Merrick Garland and FBI agents.