When You’re a Star, They Let You Do It
Outrage, exhaustion, and the ultimate in “imperial presidency.”
This blog is almost seven years old. Begun in the early months of the Trump administration, it was both a modest effort to commune with like-minded souls during a national nightmare, and a solipsistic act of catharsis to try to keep myself sane as I watched that nightmare unfold.
In those days, I churned out 10,000 word rants weekly—sometimes more than weekly. Trump’s outrages and provocations came so fast, I could hardly keep up.
But these days, like many of us, I barely have the energy to set my hair on fire anymore. That fatigue is worrying, of course, because the most dangerous phase of the fascist threat is likely still ahead of us, and making us numb and resigned is a conscious part of what its perpetrators are up to.
MURDER, HE WROTE
Meanwhile the outrages continue, and in fact, have only gotten worse.
Witness this past week, when Trump’s latest set of lawyers appeared in a federal appeals court and argued, in essence, that as US president Trump was actually a king who could do whatever he wanted—even murder his rivals—and cannot be held accountable in a court of law.
I’m not a professor of constitutional law, but I’m pretty sure that is exactly the opposite of what the foundational documents of American democracy prescribe. In fact, any kid who squeaked through seventh grade civics could tell you that. (I’m kidding! They don’t teach civics any more.)
Trump and his defenders surely don’t even believe this fairy tale themselves, because they would definitely clear their throats by way of complaint if the current US president claimed those same powers. They don’t think the president is above the law: what they think is that a Republican president is. (Or at least Donald—more on that in a bit.) But the fact that the lawyers representing the first former US president to be charged in a criminal trial would go before a panel of federal judges and make that claim with a straight face ought to scare the shit out of every living American. Particularly because there is a fanatical minority of tens of millions of living Americans who are just fine with it.
Republicans, reactionaries that they are, are fond of a Frommian surrender of freedom in exchange for (the illusion of) security, and have long admired the “strongman” model of authoritarian leadership, from Nixon’s imperial presidency to the Bush-era unitary executive theory. But never before has that impulse reached the depths of Trump’s “brazen dictator-on-Day-One” boast.
Trump claims that the criminal charges against him for conspiring to overturn a free and fair election should be dismissed on the grounds that his actions constituted official presidential duties.
I’ll just let that sit there a moment.
By now we should be used to headsnapping Orwellian “logic” from MAGA Central (feel free to think of it as Kafkaesque, if you prefer), but this one may take the proverbial cake.
In fact, what Trump and his supporters believe should fall under the rubric of “official presidential duties” is Mississippi wide. (Again: does not apply to Joe Biden.) Last week, Judge Florence Pan, one of the US Circuit Court judges before whom this argument was made, asked one of Trump's lawyers, D. John Sauer, if a president could be prosecuted for ordering SEAL Team Six to assassinate a political rival. Sauer tap danced like Savion Glover, but essentially said no, unless that president was first convicted in an impeachment.
(On one level the question is nonsensical. Who needs DEVGRU when Erik Prince and Blackwater would be happy to do that sort of thing for Trump for free? In fact, I am quite sure they are already working on it.)
This “impeachment as prerequisite” argument was new, and it’s a doozy, both in its logical absurdity, and the sheer chutzpah of Team Trump in trotting it out.
During his second impeachment—the one for trying to overthrow the government—Trump’s lawyers argued that the Senate was the wrong venue to address those charges, but don’t worry, he could always be held accountable in a criminal proceeding after he left office. (Republican Senators who voted to acquit him, like Mitch McConnell and Marco Rubio, among others, made that same argument.) Now that precisely that legal effort is underway, Trump’s lawyers argue that he can’t be held accountable in a criminal proceeding precisely because he wasn’t convicted during his impeachment.
How stupid do they think we are?
Very stupid. And they are largely right.
As many have noted, this wholly invented concept of constitutional law on Sauer’s part would mean that a president could do anything he or she pleases, as long as they can retain the support of 34 compliant US senators. And of course, that would be easy to do, since that president could also legally order the murder of any senators who balked.
KAYE BALLARD, EVE ARDEN, AND DON
By now we should not be surprised that the highly litigious Mr. Trump is going to game and exploit and abuse the legal system in the most extreme ways possible, sanctimoniously demanding his own rights while demonstrating utter contempt for that same system when it tries to hold him to account. Still, the “I’m a god-king” argument was a new low.
This was also a week in which Trump and his myrmidons like Elise Stefanik trotted out the idea that the insurrectionists convicted and jailed for their actions on January 6th are somehow “hostages.” It was a week Trump went on an Insane Clown Posse-like jag about how magnets work. It was a week when his lawyers in a completely different trial demanded that he be allowed to make an incendiary campaign speech as part of their closing argument, and when the judge refused, he did so anyway.
Like a schoolboy claiming his dog ate his homework, those lawyers also asked the judge, Arthur Engoron, for an extension because Melania’s elderly mother had just died. When the judge denied that request, they responded with a peevish email stating: “Despite the fact that his Mother-in Law, who he was very close to, passed away late last night, President Trump will be speaking tomorrow.”
(Yes, I am sure that the famously warm and personable Donald Trump was super close with her. His eulogy: “Amalijawas a beautiful woman. A New York 4, but a Ljubljana 8.”)
That trial in question was the civil one in New York City in which Trump and the Trump Organization are charged with fraud for illegally manipulating the valuations of their various properties. Trump attended that trial in person, because it appears to be the one he cares most about—because he stands to lose a third of a billion dollars. Judge Engoron has already determined that Don & Co are guilty; all that remains is for him to decide the extent of the financial penalty. Therefore, with his self-pitying diatribe, Trump clearly was not trying to sway the judge, whom he—yet again—insulted during those remarks. He was grandstanding for his voters and trying to shape the public narrative of himself as the victim of political persecution—but also a fighter!—and a martyr.
But in terms of that financial punishment, a bitter and worrying irony looms. One of the most infuriating and dangerous things about Trump has always been the extent to which he has lined his pockets—and compromised national security and the public welfare—by taking money from foreign entities. Bribes, in other words. Now, because he is about to be borderline bankrupted by that civil case in New York, as well as the crushing legal fees for his many other criminal and civil indictments, he will be even more susceptible to that kind of leverage going forward. Consider how that will play out if he becomes president again.
THE RULES OF THE GAME
In The Atlantic, David Graham wrote of that civil hearing that “at its core, the whole case is about Trump believing that he needn’t follow the same laws as other citizens.” Those rules, Graham wrote, “are for little guys, Trump seemed to believe,” and “Given how much Trump has gotten away with, it’s no wonder he thinks the rules don’t apply to him.”
No doubt. But it’s one thing for Donny to think that. It’s another for others—even his critics—to go along with it.
Also in The Atlantic, the great Adam Serwer proves once again why he is among the most incisive observers of our current political moment. Writing about attempts to disqualify Trump from the ballot under the Fourteenth Amendment’s insurrection clause, Serwer notes the absurdity that so many pundits—on the left as well as the right—are willing to give Trump a pass on that matter, and their weak-kneed logic for so doing.
There is little factual dispute over whether Trump attempted to seize power by fraud—pressuring state and federal officials to alter the election results—and then force, in the form of sending a mob to coerce Congress into reversing the election results. The real question is whether the Fourteenth Amendment’s ban on candidates who have broken an oath to defend the Constitution by engaging in “insurrection or rebellion” should be enforced.
Serwer argues that those “who now want us to ignore the Fourteenth Amendment” are arguing for bowing to the will—or threats—of a minority that has inexplicably been given special privileges and power, which is to say, Trump voters. “This is not a standard applied to any other aspect of the American Constitution in any other circumstance. It is an entirely novel standard invented for the benefit of Donald Trump.”
Meanwhile, the same Republicans who claim it’s “anti-democratic” to throw a popular insurrectionist off the ballot because of what they consider a ridiculous constitutional technicality are perfectly happy to have that same person ascend to the White House because of another ridiculous constitutional technicality, the Electoral College. (Or that we are subjected to the rule of the wildly anti-democratic US Senate. Or have popular legislation blocked by the filibuster. Or have our legislative bodies radically distorted by gerrymandering.)
Given that no one is suggesting that the Electoral College or the Supreme Court or the Senate can simply be ignored simply because they are antidemocratic or because many Americans don’t like them, the question is why the Fourteenth Amendment should be ignored. And here, the answer seems to be that Trump and Trump supporters retain a special power of constitutional nullification that no other American constituency possesses.
Serwer writes that those arguing against the Colorado and Maine decisions “are not simply arguing against Trump’s disqualification. They are arguing that neither the Constitution nor the law should apply to a figure popular enough to disregard them. This logic echoes Trump at his most base and grotesque.” And again, this argument is never applied to benefit any other politicians, Democrats especially. “Barack Obama is barred from running again, and no one of any consequence suggested, at the end of his second term, that he be allowed to ignore that prohibition simply because he might have been popular enough to win.”
Serwer goes on to quote the legal journalist Garrett Epps, who writes: “To create special rules for Donald Trump would be to perfect the assault he has mounted on American law.”
It is very much the same argument as the one that says we should not hold Trump to account in criminal court—or before that, impeach him—because it will make his supporters mad, or alternatively, only make them love him even more. Which are essentially the same thing. Trump and his squadrons of flying monkeys have long threatened violence if he is held to account. Yet incredibly, even some on the center and left cite MAGA World’s displeasure, and its perception of “unfairness,” as a reason not to apply the law to him:
For example, the liberal writer Jonathan Chait argues that disqualifying Trump “would be seen forever by tens of millions of Americans as a negation of democracy.” Similarly, the Yale Law professor Samuel Moyn has written that “rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.”
What Moyn describes is not democracy but a hostage situation.
If the fear of violence from one political faction is sufficient justification for disregarding the rule of law, then the rule of law cannot be said to exist.
Serwer acknowledges the backlash that will surely result if Trump is disqualified from the ballot in even one state, let alone several, and agrees that the best outcome for our democracy is his electoral defeat on an unquestioningly level playing field where there are no grounds for legitimate complaint. (Of course, Republicans will complain anyway, if not far worse—witness 2020.)
But those making the argument against disqualification should understand the breadth of the political argument they are making, which is that a political faction capable of credibly leveraging the threat of violence will be allowed to randomly and arbitrarily decide what the law is….
As the New York Times columnist David French writes, ‘Republics are not maintained by cowardice.’”
The disqualification issue may eventually prove to be much ado about nothing, in terms of practical impact on the election. Serwer writes that he does “not expect this Supreme Court, among the most partisan in memory, to follow the majority’s originalist pretensions and disqualify Trump….More disturbing is the reasoning from the commentariat in favor of keeping him on the ballot that amounts to a backhanded endorsement of Trump’s belief that he is above the law.”
“Insurrection?” he writes. “When you are a star, they let you do it.”
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Photo: Trump gets his star on the Hollywood Walk of Fame, 2007. It has since been repeatedly defaced, and the West Hollywood town council has called for its removal.
Credit: M. Tran/FilmMagic via Getty Images
Copy editing by the great Gina Patacca