In a few hours in downtown Manhattan, our country will see the arrest, booking, and arraignment of former President Trump on criminal charges.
No matter what happens this afternoon, this will be the first time that an ex-President has had to answer to criminal charges laid against them.
It’s not the first time that charges of misbehaviour in office have been contemplated for those who have served as President. There have been several impeachments and trials in the Senate of Presidents in the past 236 years since the Constitutional Convention but none have ever resulted in conviction and removal from office:
- Andrew Johnson was the first President to be impeached and tried in the Senate for trying to remove Secretary of War Edwin Stanton in violation of the Tenure in Office Act of 1867 which was passed largely to protect Stanton from being fired. Johnson escaped removal from office by one vote when the Senate failed to reach the two-thirds majority in favour of removal.
- Richard Nixon faced three Articles of Impeachment being sent to the floor from the House Judiciary Committee but President Nixon resigned before the vote was taken and a trial could take place in the Senate. Nixon was pardoned by his successor President Ford.
- Bill Clinton found himself the target of Articles of Impeachment and a trial in the Senate for perjury and obstruction of justice in a case involving inappropriate relations with a subordinate employee. President Clinton would be acquitted by the Senate.
- Donald Trump has the dubious distinction of being the only President to be impeached and tried in the Senate twice with the first one in 2019 being for abuse of power and obstruction of Congress and the articles for the second impeachment being voted a week before he left office for incitement of a riot. Then Senate Majority Leader McConnell made it very clear that neither Senate trial had a chance of conviction with votes along party lines ensuring the two-thirds majority would not be met for conviction and removal from office.
The indictment from the grand jury has yet to be unsealed and charges read so we can’t be sure of what charges the DA is bringing but they reportedly centre on the falsification of business records to cover up hush money paid to former porn star Stormy Daniels who was shopping her story of an extra-marital tryst with Trump to the various tabloids.
To be sure, the actual payment to Daniels is legal but what has gotten Trump a historic trip to the prisoner’s dock to answer charges was disguising the payments to lawyer Michael Cohen in his corporate books as legal fees (likely misdemeanours) and potential felonies if the falsification of the records were intended to cover up other crimes, particularly if finances from his campaign are involved.
To those who would love nothing more than to see the ex-President paraded into the courthouse in chains in the classic “perp walk” in disgrace, I’d imagine they’re going to be sorely disappointed.
No matter the alleged crimes or his notoriously cavalier attitude toward legal and ethical norms in the political and business arena, the court will still be mindful that he did once hold the office of President and the dignity of that office will be shown some measure of deference regardless of what the public may think of what he did to the dignity of that office whilst he was in the White House.
More than likely, Mr Trump’s “perp walk” will be a private affair though a back entrance to the courthouse where he’ll be taken to be formally arrested and booked and then detained for an arraignment this afternoon. I’d be surprised if he’s even subjected to the customary “mug shot”.
The arraignment itself is likely to be relatively pro-forma…the thirty or so charges will be unsealed and read out by the judge unless the defence moves to waive the reading. I’d imagine any competent defence attorney would likely waive the reading but I’d imagine that Mr Trump’s ego will require nothing less than the charges being read out entirely so that he’ll have plenty to tee off upon when he gets back to Florida and conducts his expected press conference.
What will be interesting will be the conditions of Trump’s release. High-profile defendants with a history of disdain for court proceedings against them (if not outright contempt!) are often subjected to travel restrictions requiring the surrendering of a passport if not house arrest.
Certainly the court could seize Mr Trump’s passport but that’s relatively pointless when he owns a personal Boeing 757 with transcontinental range easily capable of making it to friendlier destinations.
If the court were truly serious about confining him to the country, they’d have to essentially bar him from any international travel and restrict access to his 757 or other private aircraft until the trial is concluded assuming the trial comes down in his favour. I’d be surprised if the court would go that far…they’re already in relatively uncharted waters as it is with all of the world watching every move the dramatis personae makes.
Perhaps that’s the best aspect of this trial which is comprised of charges that are relatively weak with a good chance of Mr Trump walking on the charges or should he be found guilty, I doubt he’d see the inside of a jail cell. The misdemeanours are likely to be fines and honestly, the felony charges (if any) would likely be fines rather than jail time.
So for those who are hoping this trial is the one that finally brings some measure of accountability by putting Mr Trump behind bars…you’re likely in for a big disappointment with this particular trial. Former Senator John Edwards of North Carolina was accused of using campaign finances to support his mistress as his wife was dying of cancer (and I can assure you that the prevailing opinion in the state was that he was majorly grody for being unfaithful in the first instance but given her condition, it was considered even worse than just straight-up adultery). Edwards ended up walking on those charges pretty easily and it would not surprise me in the least that Trump will likely wriggle out of the charges against him or pay a token fine but admit no wrongdoing.
But that’s not to say it’s not a useful exercise. Bringing an ex-President to trial to face criminal charges outside of an impeachment is unprecedented and a lot will be learned about the process and what kind of a battle can be expected from a notoriously litigious defendant.
I have no doubt that DOJ and the Fulton County prosecutors are going to be watching this trial like a hawk to ensure that if and when they lay criminal charges for Trump to answer in the prisoner’s dock in their jurisdiction, any errors made by the Manhattan DA will be noted and filed away to make their case against Trump that much stronger.
Personally, whilst it saddens me that we’ve come to the point where an ex-President is being charged and having to face trial in the first instance…it is long overdue to scrap that customary position in DOJ that Presidents cannot be called to answer charges in the prisoner’s dock.
We’re either a country that believes in the rule of law or we’re not.
Whether you agree with the charges that were laid being legal and/or a matter of political persecution, the fact of the matter is that an investigation was conducted by the grand jury and they found enough there to indict Mr Trump and in so doing affirmed the notion that the law theoretically applies even to those who have served as President.
Now, if there is a potential set of charges that I think has a better than average shot of actually putting Mr Trump behind bars, I’d think it’s the case in Fulton County where he is clearly asking many elections officials in Georgia to pervert the will of the voters by “finding” him enough votes to carry the Atlanta metro and likely go on to win in the Electoral College in 2020.
That’s about as clear a violation of voting laws as it gets and you can argue there are federal implications as he did so across state lines but I’d imagine DOJ will be more than happy to let the Fulton County prosecutors have first shot at Mr Trump.
But as compelling as the evidence on the tapes and testimony from Raffensberger et al is, the prosecution still has to meet the burden for the jury “beyond a reasonable doubt” and hope that the jury isn’t packed with people who believe in jury nullification.
So in Manhattan and likely in Atlanta at some point (if not Washington should DOJ actually indict Mr Trump for his behaviour leading up to and on 06 Jan 2021 as well as his mishandling of classified information), Mr Trump will be allowed the fair trial in front of his peers that the dictators like Putin and Kim Jong-Un would never allow in their countries.
He might want to think about that carefully the next time he wants to rant about being “persecuted” and characterising the trials as “witch hunts”. He might want to think about the rights he enjoys under the Constitution (including the Fifth which I imagine he’ll likely be using more than a little in his various proceedings)…rights that are non-existent in dictatorships.
He might even want to think about what often happens to people whom dictators find inconvenient. They usually find a way of eliminating such headaches…permanently.
No, he’s going to get several trials and he’s got the money that he may well have a better than average chance of buying his preferred outcome by spending the prosecution under the table and/or boring the hell out of the jury that’s been kept locked up like OJ Simpson’s “Dream Team” did in Lance Ito’s courtroom.
He’s going to have those fair trials that are often denied to those of much lesser means and wealth because the prosecution can afford nothing less, especially with a former President actively campaigning to be returned to the Oval Office.
Get your popcorn, folks. The circus is only just now starting!