With Trump, All Bets Are Off

The poker table of American politics now officially has no limits. Anything goes. Bet whatever you wish. It won’t matter: The house never loses, unless it’s the White House.

We’re having yet another crisis in American confidence. The dashboard of our democracy always seems to be flashing red. Do our institutions actually work? We’re long out of warranty, so some reassurance would be nice.

Don’t bet on it.

Every branch of our government is holding up like a twig. The public legitimacy of the Supreme Court is at an all-time low. Last year, a draft opinion overturning Roe. v. Wade was leaked. Last week the Justice Department leaked an indictment against Donald Trump in connection with the documents he removed from the Oval Office, brought to Florida, and then played three-card monte with their return.

Leaks overflow, and this time we can’t blame climate change. Are any of Richard Nixon’s plumbers available? At least they have the right resumes for this line of work.

Of course, the gravamen of our decline is largely being spent on Donald Trump. Everything about him, from the day he first announced his candidacy for the White House, has been unprecedented—the rallies, the Access Hollywood tape, the insults and impulsivity, the two impeachment trials—none were ever seen before in American politics. And he liked it that way, and so did most of the people who voted for him. For a man who sat on a golden toilet, Trump curiously galvanized the great American unwashed.

No one has ever made better use of bad publicity. The worse it gets, the more energized he seemingly becomes, and the more devotedly his base responds.

He’s already the first American president to be criminally indicted—in New York state court. And he will soon be the first president indicted in federal court—in Miami.

And, yet, with these two pending criminal matters, he is leading the field, handedly, among Republican candidates for president.

That’s why there is no reason to believe that this is the end of his legal troubles. Expect more cases coinciding with the primary elections to be filed by prosecutors in Georgia, the U.S. Attorney’s Office in Washington, D.C., and the Attorney General of New York.

We should prepare for an election in which the leading Republican contender, who may perhaps be the presidential frontrunner, will campaign on courthouse steps while out on bail. America’s most celebrated and loathed criminal defendant could conceivably recapture the Oval Office and then, as a first act, pardon himself to avoid prison.

It’s no laughing matter.

A majority of Americans will not accept the optics of a former president shuttling from courtroom to courtroom, defending himself against the Biden Justice Department and blue city Democratic prosecutors. It’s not a good look. Our standing in the world, and our pretense to the rule of law, will suffer. The constitutional guarantees of due process and fundamental fairness apply to former presidents, too.

This is Trump Derangement Syndrome reaching epidemic levels. And it betrays a self-righteousness among Trump-haters that when it comes to the former president, anything goes as long as it might put an end to his political career. This piling-on saboteur tactics—brought by partisan Democrats during an election year—is not how the legal system is to be used.

If Donald Trump had not declared his intent to mount another campaign for the presidency, not a single one of these cases would ever be filed. Lawyers are taking liberties with our justice system. Many believe that Trump must be stopped no matter what legal principle gets trampled.

Trump falsely claimed that the 2020 election was stolen. But he will be correct when he fumes that heading into the 2024 election, Democrats tried to subvert his candidacy and poison his prospects by forcing him into a perpetual perp walk.

The cases against him, thus far, are weak, and the government faces high legal hurdles. In New York, he paid hush money to a porn star, a perfectly legal transaction. His intent was clear: to buy her silence about their affair. He wasn’t trying to indirectly make a donation to his campaign in violation of election laws.

In Florida, the documents he removed and retained from the White House were not destroyed or shared with a foreign entity. They remain intact and are now safely out of his hands.

Should he have kept them after the National Archives wanted them returned? Of course not. But obstruction of justice is a much lower-level charge than espionage. Does holding onto the documents longer than he should have make a former president an enemy of the state? Should he be imprisoned for it?

We shouldn’t be surprised by his transgression. Trump is forever reckless and self-destructive. The list of things he should not have done is infinite—which includes addressing the crowd at the Ellipse on January 6th.

Prosecuting him for espionage, however, is plainly a misapplication of the law. Espionage is reserved for Edward Snowden, Chelsea Manning and Julian Assange, those who should never have had access to such sensitive materials in the first place.

The Presidential Records Act, which leading Democrats and the mainstream media refuse to discuss, contemplates that a former president will negotiate with the National Archives to determine what, if any, document created during his or her presidency can remain in the president’s possession. Trump, Barack Obama, George W. Bush, and Bill Clinton, are the only Americans to whom this statute applies. If a document, classified or not, is casually discovered at one of their residences, they haven’t committed espionage.

Documents discovered in Joe Biden’s garage, however, taken when he was Vice-President, and the emails that Secretary of State Hillary Clinton destroyed on her private server, are not covered under this law.

Yet, Trump is being treated like a foreign agent working covertly on behalf of another country.

Either the mere possession of classified material in a former president’s home is the crime of the century, or it’s a pretext to dispose of a political rival. It sure looks like President Biden’s Justice Department is doing his bidding, lowering the boom, and seeking to end this election before it even starts.

It doesn’t matter whether the Special Counsel is intentionally performing a political hit job. What matters is that it looks as if he is—especially since there appears to be little prosecutorial interest in the Bidens. This bad faith circus atmosphere sways the public’s cynicism. The machinery of justice appears rigged—which is precisely what Trump has been trumpeting all along.

Thane Rosenbaum is a novelist, essayist, law professor and Distinguished University Professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. His most recent book is titled “Saving Free Speech … From Itself.”