By Scott Optican

Despite clearly losing the recent US election — as evidenced by the popular vote, electoral vote and numerous unsuccessful legal challenges (if you don’t believe me, ask the relevant US state and federal court judges) — why is Donald Trump still fighting so hard (via baseless and fraudulent claims of vote rigging) to remain President for a second term?

It’s not because Trump has some grand, uncompleted vision for America that requires four more years to cement in place. Nor does it have to do with really truly loving the presidential job. To the contrary, the most likely and salient reasons are simply ego, a desire to maintain power and public attention (both in the Republican party and the US at large) and a desperate effort to escape the title of “loser” (the ultimate epitaph to be avoided in the family Trump).

There is, however, another probable reason why Trump is so desirous of clinging to office. Indeed, it is a problem faced similarly by deposed dictators and autocrats around the world — leaders whom Trump admires but, thanks to American law and democracy, has never been able to emulate fully.

When strongmen across the globe are deposed, they typically face consequences in the form of criminal, civil or political accountability that the power and influence (or violence) of their office permitted them to avoid. In extreme cases, they end up deceased at the hands of an angry mob. This is why autocrats who leave office voluntarily often try and do so on terms protecting them from such liability — whether in their home country or in some friendly third-party state.

Trump has no real fear of angry mobs coming after him with torches and pitchforks. To the contrary, the 75 million Americans who voted for him would welcome his continued presidency with open arms. Indeed, media reports say that Trump has already floated the idea (privately) that he may run again in 2024 — something he would be permitted to do under the US Constitution. However, before that rather terrifying possibility comes to pass, Trump may face his own reckoning under American law. Fear of the justice system is, in fact, one of the main reasons that Trump is so keen to remain president.

Legal and media commentators in the US have pointed to various congressional, press and prosecutor-initiated investigations (some still ongoing) that implicate Trump in diverse criminal acts at both the state and federal level. He was an unindicted co-conspirator in his former attorney Michael Cohen’s prosecution for federal campaign finance offences during the 2016 election (in connection with hush money payments to several porn stars aimed at buying their silence about affairs with the married Trump). With respect to the Russia investigation, the Mueller Report implicated Trump in numerous acts of obstruction of justice in violation of federal law. The Manhattan District Attorney and Attorney-General of New York are currently investigating Trump for a number of potential state and federal offences related to his tax filings and other business practices of the Trump Organisation. Trump may have likewise committed various acts of federal public corruption in connection with his attempt to extort Ukraine into providing political dirt on then presidential candidate Joe Biden. Many women have also accused Trump of sexual violence offences in the years and decades past. Finally, Trump’s recent efforts at using the power of the presidency to bolster his own re-election efforts — coupled with his coercive conduct towards various state election officials over the past month — may violate US federal criminal laws prohibiting government authority from being used for private ends.

Like the autocrats already mentioned, Trump’s position as president afforded him certain legal and practical immunities from criminal prosecution. Existing interpretations of US law forbid a sitting president from being prosecuted for criminal offences while he still remains in office. Similarly, the US Justice Department — now headed by the Trump appointed Attorney-General (and crony) Bill Barr — has demonstrated little current appetite for holding Trump to account. Trump’s power as president — and wealth-based access to legal resources — also permitted him to stymie congressional investigations and resist lawful processes aimed at forcing disclosure of his business and tax records. Likewise, a republican dominated Senate acquitted Trump of the impeachment charges brought in connection with the Ukraine investigation. Finally, the women who accused Trump of sexual assault face statute of limitations problems for the crimes alleged, together with the likely reluctance of state law prosecutors to pursue historical allegations of sexual abuse (and Trump’s presidential immunity from criminal prosecution in any event).

However, while certain of Trump’s crimes may never be aired in court (due to various reasons of law and fact), his shield of immunity — as both a practical and legal matter — ends when he stops being president. As of January 20th — the day President-elect Joe Biden takes office — Trump is well able to be prosecuted (at both the state and federal level) for many of the offences outlined above. Indeed, despite numerous legal roadblocks thrown up by Trump, the New York state financial crimes investigations mentioned above are live and ongoing. Likewise, a new US Attorney-General (who will be appointed by President-elect Biden) will undoubtedly be less likely than Barr to provide Trump with legal cover from prosecution. There is also a significant chance that Trump will face ruinous civil liability for outstanding loans and unpaid debts. Indeed, he appears to owe Deutsche Bank (and likely other creditors) hundreds of millions of dollars. When those loans come due in several years, those lenders will have far fewer incentives to tread carefully around citizen Trump than they did President Trump. Time will tell.

As New York Times magazine writer Jonathan Mahler put it in a comprehensive November 17th article about Trump and the rule of law, the now lame-duck president has been “emboldened by his years of presidential unaccountability” while “also confronting an increasingly urgent need to retain it”. Mahler also tracks a current debate among US legal and political thinkers as to whether it is in America’s best interest to pursue criminal investigation/ prosecution against Trump after he leaves office. Indeed, President-elect Biden has indicated that the nation needs healing and must move forward — and any cases brought against Trump may appear to be (or will at least be spun by him and his supporters as) politically motivated (the very thing Trump was rightfully accused of doing during the numerous times he exhorted the US Justice Department to exonerate his political friends and indict his political enemies).

Regardless of the pro and con arguments for continued criminal investigation of Trump after he leaves office — or President-elect Biden’s views — a self-determining Congress, newly appointed Attorney-General (whom Biden will let act independently), state level prosecutors and other parties may have their own ideas regarding the country’s legal and political good. Moreover, as Mahler quotes respected US law professor Stephen Vladeck, “breaking the law is not a political difference”. Trump has already paid a political price for his failings by losing the election. But there is little reason to permit that political defeat to shield him from responsibility for breaches of US state and federal law.

To the contrary, in order to affirm the fundamental rule of law, holding Trump accountable in criminal and civil forums may, in fact, be exactly what the US needs to move on. The reason, as philosopher George Santayana put it, is that “those who cannot remember the past are condemned to repeat it”. Indeed, properly pursuing Trump for his legal transgressions may ultimately be less about him than about re-affirming how America has always seen itself: “a government”, as founding father and second US president John Adams put it, “of laws, and not of men”.

Scott Optican is an Associate Professor in Law at the University of Auckland. He specializes in evidence, criminal procedure, and comparative criminal procedure, and has written widely on criminal justice and policing issues arising under the New Zealand Bill of Rights.

Disclaimer: The ideas expressed in this article reflect the author’s views and not necessarily the views of The Big Q. 

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