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Entry tags:
Politics and incentives
Inspired by this NY Times story...
Donald Trump was scheduled for sentencing next week in the one criminal trial that managed to take place before the election, the one about disguising his company's hush-money payments before the 2016 election as legal fees. The judge and prosecutor are, naturally, uncertain how to proceed now that he's President-elect.
Option (a) would be to ignore the political reality and sentence him as though he had any other day job that he might regrettably be unable to perform while in prison. The principles of "American blind justice" and "no one above the law" would demand that, but it's realistically not going to happen.
Option (c), suggested by Trump's lawyers, is to dismiss the whole case: so what if he's been convicted by a jury of his peers, he's about to be President, and you can't treat the President of the United States like a criminal even if he is one. And besides, it was a bogus case using legal theories that wouldn't have been applied to anyone else (there's a grain of truth to this last).
Option (b), floated by the prosecutor, is to "freeze" the case for four years. Which sounds sort of appealing, if we can't have blind justice.
But. It gives Trump even more incentive than he already had to either
(d) not leave office in January 2029, or
(e) see to it that something bad happens to D.A. Bragg and/or Judge Merchan in the next four years, and the case is assigned to a different judge who will "see things Trump's way", particularly after seeing what happened to Merchan. Trump wouldn't have to have his fingerprints on it; a simple "will no one rid me of this meddlesome judge?" might suffice. Or, since he's now immune from criminal prosecution for acts using his official Presidential powers, he could openly order the military or the Justice Department to take care of the problem.
As for "not leaving office", I don't think it's feasible for Trump to get the 22nd Amendment repealed in the next four years: it would require not only passage in both houses of Congress, but passage in 3/4 of all states, and the latter isn't going to happen. But that's playing by the rules, which isn't Trump's style.
SCOTUS has already ruled that the 14th Amendment's section 3 (prohibiting people serving in office who have previously done so, sworn an oath to uphold the Constitution, and then engaged in "insurrection") isn't self-executing, and needs an implementing act of Congress. SCOTUS could (especially with another one or two Trump nominees on the Court) decide the same of the 22nd Amendment, and obviously no such act of Congress is going to pass with Trump's signature on it.
There’s also an argument that he could serve a third term as President by running (and being elected) as Vice President in 2028, with a Presidential running mate who has promised to resign from office immediately after Inauguration, making Trump President again. See, the 22nd Amendment doesn’t say no person can serve more than two terms as President, only that no person can be elected more than twice as President. OTOH, the 12th Amendment says “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President,” and since Trump would be ineligible to run for President a fourth time, that makes him ineligible for the Vice Presidency too, right? OTTH, as already pointed out, the 22nd Amendment doesn’t make him ineligible to be President, only to be elected President. All of this would probably end up in front of a Supreme Court with at least four members appointed by Trump.
Or he could skip the SCOTUS step altogether and simply say he's staying in office, or running for re-election in 2028, on the practical grounds of "who's going to stop me?".
Donald Trump was scheduled for sentencing next week in the one criminal trial that managed to take place before the election, the one about disguising his company's hush-money payments before the 2016 election as legal fees. The judge and prosecutor are, naturally, uncertain how to proceed now that he's President-elect.
Option (a) would be to ignore the political reality and sentence him as though he had any other day job that he might regrettably be unable to perform while in prison. The principles of "American blind justice" and "no one above the law" would demand that, but it's realistically not going to happen.
Option (c), suggested by Trump's lawyers, is to dismiss the whole case: so what if he's been convicted by a jury of his peers, he's about to be President, and you can't treat the President of the United States like a criminal even if he is one. And besides, it was a bogus case using legal theories that wouldn't have been applied to anyone else (there's a grain of truth to this last).
Option (b), floated by the prosecutor, is to "freeze" the case for four years. Which sounds sort of appealing, if we can't have blind justice.
But. It gives Trump even more incentive than he already had to either
(d) not leave office in January 2029, or
(e) see to it that something bad happens to D.A. Bragg and/or Judge Merchan in the next four years, and the case is assigned to a different judge who will "see things Trump's way", particularly after seeing what happened to Merchan. Trump wouldn't have to have his fingerprints on it; a simple "will no one rid me of this meddlesome judge?" might suffice. Or, since he's now immune from criminal prosecution for acts using his official Presidential powers, he could openly order the military or the Justice Department to take care of the problem.
As for "not leaving office", I don't think it's feasible for Trump to get the 22nd Amendment repealed in the next four years: it would require not only passage in both houses of Congress, but passage in 3/4 of all states, and the latter isn't going to happen. But that's playing by the rules, which isn't Trump's style.
SCOTUS has already ruled that the 14th Amendment's section 3 (prohibiting people serving in office who have previously done so, sworn an oath to uphold the Constitution, and then engaged in "insurrection") isn't self-executing, and needs an implementing act of Congress. SCOTUS could (especially with another one or two Trump nominees on the Court) decide the same of the 22nd Amendment, and obviously no such act of Congress is going to pass with Trump's signature on it.
There’s also an argument that he could serve a third term as President by running (and being elected) as Vice President in 2028, with a Presidential running mate who has promised to resign from office immediately after Inauguration, making Trump President again. See, the 22nd Amendment doesn’t say no person can serve more than two terms as President, only that no person can be elected more than twice as President. OTOH, the 12th Amendment says “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President,” and since Trump would be ineligible to run for President a fourth time, that makes him ineligible for the Vice Presidency too, right? OTTH, as already pointed out, the 22nd Amendment doesn’t make him ineligible to be President, only to be elected President. All of this would probably end up in front of a Supreme Court with at least four members appointed by Trump.
Or he could skip the SCOTUS step altogether and simply say he's staying in office, or running for re-election in 2028, on the practical grounds of "who's going to stop me?".