Time moves quickly in an election season. There I was writing a response to Michelle Goldberg’s column in the NY Times in which she suggested that there should be prosecutions of Trump and his deputies for their illegal shenanigans in office after they had left office, however difficult that might be, she agrees, without it seeming to be just a political vendetta against the deposed party, when information came out about the President trying to interfere in the administration of an election by having his appointee as Postmaster General downsize the Post Office so that it could not handle what are likely to be the huge number of absentee ballots that are mailed in this November. So the question shifts from what to do with him after he is defeated to what to do with him now, he having confessed that he wanted to withhold money from the USPS just so that it would not be able to process the ballots. That is a real life case of election tampering, which is barred by most state laws, and certainly an impeachable offense in that Nixon was hounded out of office for illegal acts to cover up his trying to influence the election of 1972, while here we have an attempt to intrude on the administration of an election, all out there in the open. But before going on to that, let us consider the Michelle Goldberg case for going after past crimes of a President.
Manhattan District Attorney Cy Vance, Jr. is looking into the financial dealings of President Trump with Deutsche Bank. These are the documents I was shocked to find that Mueller had not looked into even though they might point to Russian influence over Trump because of loans they had extended to him through Deutsche Bank. Mueller thought these documents irrelevant to his investigation, though I still don’t know why. What if Cy Vance comes up with some illegal activities in those records? Had Trump supplied false information when applying for a loan? Does what he supplied square with what he reported on his tax returns? Was it clear that financial transfers were made with a specific decision in mind or just in prospect of a favorable White House point of view? What should be done with such information? This is a very difficult question to resolve in our constitutional system because it amounts to asking under what conditions do we put Presidents and ex-presidents in the dock.
Present Justice Department guidelines hold that a sitting President cannot be indicted. That does not hold for ex-Presidents. Moreover, if, as Trump claimed, he could shoot someone on Fifth Avenue and his supporters would still support him, does that mean a President could not be arrested or otherwise held against his will so that he does not shoot someone else? The argument might be that he could be detained by the NYPD who, in collaboration with the Secret Service, would see to it that he was watched while still in office and that he could be indicted just as soon as he left office because, under the 25th Amendment, his cabinet had soon decided that he was no longer fit to hold office. Similarly, he could be indicted after he left office for tax evasion or lying on a loan application.
There are problems with that approach. My guideline would be that a President could not be indicted either before he left office or after he left office because to do so would make any ex-President subject to political retaliation by his political enemies who could drum up any number of charges, either of a sexual or a financial nature, to land him (or her) in hot water. I don’t want to see ex-Presidents hassled. That is what happens in totalitarian regimes, Kruschev the first of the Soviet leaders to live out his life after he left office as a pensioner rather than feared as a potential threat to those who assumed power. We in the United States are proud of our tradition of an ex-Presidents Club, those people on friendly relations with one another and available to give non-partisan advice to whomever is the incumbent President on the grounds that they know from the inside how difficult it is to manage that office. It is no compliment to Trump that he seems to feel no need to consult his predecessors.
It would be demeaning to the nation as a whole to have an ex-president dragged through the courts especially if it were for how he conducted his business as President which is largely a political matter and so would inevitably result on his being judged from hindsight, which is what happened when all those Hollywood writers were judged by when it was no longer fashionable to support our Soviet comrades in arms against Hitler. It was right for Gerald Ford to pardon Richard Nixon of any and all crimes. Otherwise, the Nixon era would have dragged on for another generation, and we did not need that. Preferable is the amnesia that sets in when we think a national nightmare is over. The same thing is true with Trump. Let him go home to Mar A Lago and let the Republican Party try to reconstruct itself.
But what if Trump is not all that docile? He might try to create a political party of his own or just jabber away at the new incumbents of high office. Someone who is arguably guilty of criminal offenses cannot be trusted to be a legitimate participant in the political process. How to draw his fangs without incarcerating him? Napoleon supplies a good historical parallel. The English and their allies were well aware of what had happened to Charles I and Louis XVII and did not want to engage in the equivalent of regicide, or whatever the killing of an ex-Emperor would be called. So they exiled Napoleon to Elba, and he came back from there, reclaimed his army, and nearly won at Waterloo. The Allies did not change their mind. All they did with the recaptured Napoleon was to exile him to a point much further away: St. Helena, in the South Atlantic. The idea is that any ex-Chief can be exiled or constrained but not executed. In the present context, that means an ex-President might be put in something that is the equivalent of house arrest if he does not choose to live in exile, as did the deposed Edward VIII. He would not have to be tried, only watched, which is something that happens anyway in that ex-Presidents retain Secret Service protection, though this time with a political component.
That is not a happy outcome, as much as it tries to cover up the differences between a normal ex-Presidency and keeping tabs on an unreliable ex-President. But we live in quite unusual times, Trump being something of a sport as Presidents and ex-Presidents go, most of whom settled into a retirement, the exceptions being John Quincy Adams, whop spent twenty years after his Presidency in the House of Representatives and Theodore Roosevelt, who went on expeditions and might have made a try at the 1920 Republican nomination if his health had held up.So let us keep up the illusion that a succession after Trump is normal however much his transition out of office will be carefully supervised and what he does with the rest of his life is not too unsettling. We can only hope that in the future national parties will be much more careful about whom they award their nomination too, 2016 having been a disaster not only for the Democrats but al;so for all those Republicans who thought and think they need to become a big tent party if they are not to fade into oblivion, what with the demographic and ideological changes that are taking place in the country.
And now to the even more difficult case of what to do with a President who does things while still in office that would do away with something no less than the administration of a free and fair election. Those of us who insisted that Donald Trump be impeached and tried for trying to get Ukraine to interfere in an American political campaign argued, at the time, that if he could get away with this and get off scot free, what was to stop him from doing it again, engaging in some other unconstitutional activity to further his own interests. And so, feeling vindicated by his failure to be convicted by the Senate, he is at it again, this time by enlisting the postal service, when one would have expected any even semi-respectable or highly partisan President, to have gone out of his way to safeguard the integrity of the election by providing the USPS with all the money it needed so it could ramp up for the unprecedented challenge of having to process so many pieces of mail so quickly. Yet the American public has gotten so used to Trump’s bluster and falsehoods, so used to discounting his outrageous statements, so used to him saying he spoke in jest or as a speculation, that it is difficult to treat this outrage as the very serious matter it is. But not since the election of 1876, where a panel of commissioners settled the election and where, soon afterwards, the ex-slave owners were restored to their position as in charge of the Old Confederacy, and to remain so for another ninety years, has the election system been so undermined.
How to deal with this in a way that does not weaken the public trust in the legitimacy of the 2020 election? You can’t impeach Trump again. That gambit has been tried and didn’t work. The authorities in various states could arrest him for election tampering, which is a crime spelled out in great detail in state statutes, though I am not sure under which provision Trump’s actions would fit. But that would lead to a constitutional crisis between states and the federal government. So what to do?
Nancy Pelosi and Kevin McCarthy have outlined a plan. Congress might reconvene to fund the USPS to deal with mail-in ballots. That would be a bill separate from the overall coronavirus package where negotiations are at a deadlock. Trump has not signed onto that plan, but seems to want to trade postal service funding for concessions in the larger deal, not understanding the magnitude of what he had proposed other than a chance to upend what the polls seem to be predicting, which is that he was going to be defeated by Biden, but he changes his mind often enough that he might do that here too, especially under pressure from Republicans who are sick of having to put up with him and who want something left over of the Republican Party so that they can make it viable again for 2024. They also want him to be past history.
The Pelosi-McCarthy plan would allow the nation to stagger through this election with some semblance of legitimacy even if it takes weeks to get the final accounting of the vote. Thanks to the Electoral College, we will not have to wait on a tallied and retallied popular vote to determine the winner, just enough states to make up an electoral majority, most of those states so clearly in one column or the other so that no doubt is cast on the results. That will avoid the constitutional crisis that would occur if numerous states in America had election results similar to what happened in Florida in 2000, where it was up to the hanging chads until the Supreme Court stepped in. We will have to be lucky for that to happen. It should be a wakeup call to Americans not to in the future vote for a President who seems, though it did not seem so to me, to be an attractive flake and that a vote for him was to thumb one’s nose at the powers that be. You might get what you for a moment wished for. And as for Trump? He will then be consigned to the dustbin of history, people wondering how they had been taken in by him and also dismissing how great a threat he had been to the basic principles of this democratic republic.