A Government of Lulz, Not Men

Thoughts on the rule of law in the age of Trump

Nov 07, 2024

Halloween costume and accessories by Skeleteen.

As we know, when president-elect Trump left the White House in January 2021, he took a lot of stuff that did not belong to him, but to the National Archives and Records Administration, as provided in the Presidential Records Act, according to which all records of a presidential administration are the property of NARA when the administration ends (with a few exceptions for personal stuff), and brought it to his business/home in Palm Beach, where he kept the boxes in various locations, including a storeroom, a bathroom, his own living quarters, and even on a ballroom stage.

It's not clear how much stuff altogether Trump stole; NARA's first estimate, when they wrote to demand it back in May 2021, was "two dozen boxes". Trump, after eight months of denial and stalling, sent them 15 boxes in January 2022, but it soon became clear to NARA that there was more that he hadn't returned (including famous things like the love letters from Kim Jong Un and the hurricane map he altered with his Sharpie to prove he wasn't bullshitting when he told the nation the storm was heading for Alabama, though that was an obvious forgery and he plainly was bullshitting). Also, in the 15 boxes they got, 100 documents, 700 pages in all, were classified, which got the FBI more seriously involved in the case (it might be a case of violating not only the Presidential Records Act, but also the Espionage Act, especially if Trump went around showing them to people, or moved them around to hide them from the FBI, both of which it turned out he definitely did), to the point where they searched the Florida property in August, and found some 11,000 stolen documents in maybe 22 more boxes altogether, including over 100 more classified documents, some with top secret and higher classifications. Finally, that November, the attorney general named a special counsel, Jack Smith, to look into the matter of whether the ex-president had violated any laws, and after a seven-month grand jury investigation Smith and the jury decided he had, and issued a criminal indictment in June 2023. The indictment didn't mention the tens of thousands of non-classified documents that should have been given to the NARA—LOL, nobody in Washington cares if you steal stuff from a library, apparently—but he was charged, along with a couple of employees, with 37 federal crimes involving the classified documents, illegally retaining them and conspiring to obstruct justice in the government's effort to get its property back from the thief. All this really happened.

Meanwhile, Smith, in parallel with a special committee in the House of Representatives and the district attorney of Atlanta, Georgia, had also been investing Trump's conduct around the same time, after Joe Biden was elected president in November 2020, when Trump worked with a host of confederates to stop Biden's accession to office, with a combination of failed legal moves to cast the election in doubt, outright extortion, fraud, and conspiracy to change or fake the results, and ultimately violence in the riotous invasion of the US Capitol led (or pushed) by Trump-linked paramilitary groups, on January 6 2021.

All this really happened too, as you know, and led to serious legal consequences for many of the people involved. In the Georgia case, which focused on Trump's efforts to get the state's election authorities to falsify the election results there in his favor (as also, in varying degrees, in Arizona, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), it led to racketeering and other charges against Trump and 18 other defendants, among whom Georgia bail bondsman Scott Hall, Justice Department lawyer Kenneth Chesebro, and Trump personal lawyers Sydney Powell and Jenna Ellis have already pleaded guilty. In Washington, the January 6 insurrection has led to charges against more than 1,400 people, among whom at least 629 have pleaded guilty and another 300 or so have been convicted at trial so far (and two defendants, Wikipedia adds, have been acquitted of all charges). A lot of crimes were committed, and Trump was deeply involved in all of them.

But Trump himself has escaped all consequences. Not that he's innocent, or makes any serious claim to be innocent; he often claims, without evidence, that the 900 convicted January 6 defendants are innocent (even though most of them have pleaded guilty) and that those in prison are "political prisoners", but he offers no fact defense at all on his own part. His legal defense is based entirely on strategies of delay, legalist quibbling, judge-shopping (to judges who owe him their jobs, including the three "conservative" Supreme Court justices he nominated, half of an invincible majority if they refuse to recuse themselves, which they always do), intimidation and threats against judges and prosecutors and their families that would mean immediate jail for contempt for any other defendant, and endless appeal, and he's managed to avoid trial up through the 2024 election.

That is, not entirely: he's lost his company's criminal case in New York for bank and tax fraud, and a parallel civil case in which he was ordered to pay $450 million, which is still under appeal, so we can call him an adjudicated fraud, and he's lost E. Jean Carroll's civil case against him for defamation, for another $88 million or so making him additionally an adjudicated rapist, and he's got 34 felony convictions for falsifying business records in hiding Michael Cohen's hush money payments to Stormy Daniels in the 2020 campaign and his reimbursements to Cohen after his inauguration, for which he's to be sentenced on November 26. LOL, nobody cares about that either, and he'll appeal in any event. He'll never pay for that crime, and none of them cost him votes.

Trump was an openly criminal president from the day he took office, as I've been explaining since April 2017 with reference to that illegal hotel lease and the unconstitutional collection of foreign emoluments; and the main reason he's gotten away with it is that nobody is prepared for that, and nobody knows how to deal with it, even after eight years. It's not normal for presidents to break the law or violate the Constitution, and we don't have a mechanism for dealing with it, though we jury-rigged a provisional fix in 1974.

James Comey's and Robert Mueller's efforts to pin down a case against his collaboration with Russian intelligence in the 2016 campaign didn't quite add up to a case, obvious though it was that he'd been doing it (and it does add up to a case since the Senate's investigation was published in 2020, but no prosecutor had the stomach to try it), and while Mueller worked up an excellent case against Trump for obstruction of justice, that couldn't be prosecuted either, and not just because Attorney General Barr chose to join in the obstruction—there's that memo from the Office of Legal Counsel stating that indicting a sitting president would impermissibly interfere with his ability to carry out his duties, and practically everybody insists this has the force of law, even though it obviously doesn't. As Walter Dellinger wrote at Lawfare in 2018, there are six competing memos and briefs on the question, and it's not obvious that they even have a consistent message:

Consider the 1973 OLC memo stating that a sitting president should not be indicted. Far from being authoritative, it was essentially repudiated within months by the Justice Department in the United States’ filing in the Supreme Court in United States v. Nixon...Richard Nixon was so named in the Watergate indictment, and that inclusion was sustained by Judge John Sirica and defended by the United States...

Of course there is supposed to be a specific remedy for that. The idea of the Constitution is that it should be dealt with by impeachment, anyway, but this turns out to be a partisan matter; Trump couldn't be impeached for anything until after the 2018 election gave us a Democratic House to do it, and Speaker Pelosi didn't want it to happen (not that she imagined Trump wasn't a criminal, but she thought it was bad politics), and when they finally managed, first over the smoking-gun evidence of Trump's effort to extort campaign help from the president of Ukraine, then over the January insurrection, the Republican Senate was unable to convict. (They came pretty close in the second case, with a majority of 57 to 43, including seven Republican senators, but they needed 67. Majority Leader Mitch McConnell voted to acquit, although he had said that "there is no question that President Trump is practically and morally responsible for provoking the events of that day...a mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him.") Then, in the final insult, Chief Justice John Roberts ruled in Trump v. United States that it is unconstitutional to indict a president or ex-president for acts committed while he is acting in his official capacity. We don't know quite how far that extends.

All these things really happened, but they didn't stop Trump from getting reelected on Tuesday. The price of butter is still kind of high, and on the reality side credit card interest rates are genuinely usurious (if you think Donald Trump is going to do a better job of lowering your credit card interest rate than a Democratic government getting its banking advice from Senator Elizabeth Warren, you deserve to be paying 23%, but I don't. Sweet Jesus.)

One of the most important things about the Jack Smith cases was that trying them would explore how far that insane new immunity rule can really be carried, but we aren't going to find out: the cases are going away, apparently, as well (we don't know about Georgia yet), even though we all know he's guilty of the crimes (including the less ignorant among the Republicans, who think it's funny, the fuckers—LOL, nothing matters), because Trump will be a sitting president (couch potato–in-chief) again before the trial can be held, a criminal president once again, for four more years of supervising his racketeering operation and watching out for his personal interests and funneling government money into his businesses and promoting his family and minions and grifting money out of his supporters for his lawyers and all the impulsiveness and ignorance and venality that characterized his first term endangering our human rights, our economy, our national security, and our planet.

As I was typing through that last bit President Joe Biden came on the radio, as Kamala Harris did yesterday, for one of the inevitable unity rituals, congratulating Trump and offering his help in the peaceful transfer of power (the rituals Trump refused to participate in, committed as he was to the lie of the stolen election), and urging us all to stay calm and hopeful, because we're American, and I get that, I really do. He's still working, at the last minute, for the restoration of the norms that Trump smashed to pieces. He's showing Trump how to behave, though there's no chance Trump will learn. It has to be done. All the foreign leaders and all the legislators and governors here will try to do the same. They'll be doing it to protect us, because they don't want Trump to do anything crazy out of pique or rage, and they'll be doing it because they really care about the norms.

I really get it, but I was brought up with the slogan that we should have a government of laws, not men. I understand that's never been perfectly true and probably never would be, but I feel in elevating this lawless man and his minions to the highest position a second time, helplessly (we can't do otherwise), after we've learned so much more fully what he is, we are irretrievably losing—throwing in the trash—the aspiration the slogan represents.