The Boston Globe has a new series on Future Proofing the Presidency, making a case for prosecution of former President Donald Trump.

Just for the record, in DC the basic Presidential criminality approach is:
1) The President gets an interpretation of the law from a lawyer somewhere such as in the Office of Legal Counsel at the Department of Justice, some Other Department, or could be in the White House that allows the President to argue that the President can do what they want to do within Presidential, constitutional or Congressionally-granted powers;
2) Then the President orders the thing to be done;
3) When the bad thing done is revealed by a whistle-blower or otherwise to the press, it explodes and creates a political scandal;
4) Congressional hearings, investigations such as Inspector-General investigations or blue ribbon commissions are called for and after more or less time passes, some kind of investigation happens that tends to focus on the lower-level actors in the thing that exploded;
5) The investigation leads to a conclusion that the law is considered to have not been clear enough, or the policy implementing the regulations have not been clear enough, and proposals for new laws or regulations are pushed forward for future cases;
6) No prosecutions of high-level civilians and, if involved, military or intelligence people happen. If at all, low-level people are possibly prosecuted. The argument is misfeasance at the top (the old chestnut, mistakes were made), while malfeasance was at the bottom;
7) The high level people write bestsellers about their experiences and if they are still active, get promoted in subsequent administrations. Presidential pardons or commutations are a wildcard, with those close to the President being more likely to get them;
8) The former President builds a library.

Want some examples?

1. 9/11 devastating intelligence failure by the National Security establishment: created a commission, created the Department of Homeland Security, passed the USA Patriot Act and the Authorization to Use Military Force, Afghanistan and Iraq wars took place, while there was no accountability for the top of intelligence community for the colossal failure.

2. Torture – “Dark side” policy, Torture done with oral OLC opinions, Guantanamo and black sites in 44 countries around the world created, torture done, OLC written opinions put in place, Abu Ghraib happens, political scandal, hearings and investigations and inspector-general reports done, Courts-martial for low-level soldiers, law not seen as clear enough and so law changes such as the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 and the Military Commissions Act of 2009 are done that try to make the law “clearer” and at the same time are written to try and insulate the high-level organizers from any risk of criminal prosecution.

In each case, no high-level criminal prosecutions took place. Feel free to pick your own example from your memory. Policy, Scandal, Investigations, prosecutions if at all, not including the President took place, the law changed.

Turning now to the Donald Trump case: with the various laws broken by him described in the above series, McGahn’s testimony, and the election interference that Trump continues to do, watch what proposals are made for reform.

You will note that none of the political leaders who will talk about reforms of the law and investigations, will talk about or call for the criminal prosecution of Trump.

Why?

We have a pathological aversion to prosecuting a sitting or former President (that goes back to at least Jefferson’s Presidency) because of the tension between those who are a bit monarchist and think of the President as a sovereign, and those who see sovereignty in the people and see the President as the Administrator of the state.

The Constitution answers the question by not granting immunity to the President, whether in or out of office. It does grant immunity to the elected representatives of the Legislative Branch while they exercise their function.

So to help along that cogitation so that people know that this has been thought about before, here are some cogitations on this theme that I have authored (along with some others), that relate to prosecuting a sitting or former President: COVID-19 Human Endangerment, United or Untied, State Criminal Prosecution of a Former President, State Criminal Prosecution of a Former United States President in United States Domestic State Courts, Criminal Prosecution in California Courts of Former President George Bush and A Citizen’s View of Criminal Prosecution in U.S. Domestic Courts of High-Level U.S. Civilian Authority and Military Generals.

Benjamin G. Davis is a retired Professor of Law at the University of Toledo College of Law.

Suggested citation: Benjamin G. Davis, The Trump Case: New Laws or Just a Good Old Prosecution?, JURIST – Academic Commentary, June 24, 2021, https://www.jurist.org/commentary/2021/06/benjamin-davis-trump-case/.

This article was prepared for publication by Akshita Tiwary, JURIST’s Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org