september14–27, 2020| newyork 31tenant.Withouta lease,thetenanthasnothing.Sotheypay what’s
calledkey money, orthey pay something.”His visionofthegood
society is oneinwhichpowerfulbusinessmengreasepalmstoget
thingsdone.
Twoyearsago, theNewYorkTimes,usingdocumentssupplied
byhisniece,Mary Trump,provedthat thepresidenthadengaged
inwidespreadfraudinvolvinga fake company andfalsifyingfinan-
cialinformationtostealmillionsofdollars.Alsothat year, thefed-
eralgovernmentsaidhehadordereda felony bydirectinghush
moneytohisformermistressesduringhiscampaign.His business
paidmillionsfordefraudingenrolleesina fake university. Andhe
admittedusingtheTrumpFoundation,supposedlya charity, to
funnelmoneytohiscampaignandbusiness.
Unsurprisingly,anenormousnumberofhispoliticalaideshave
beenchargedwith,orconvictedof, felonies:MichaelCohen(tax
fraud,lyingtoCongress),PaulManafortandRickGates(several
financialcrimes),RogerStone(obstruction,witnesstampering,
andlyingtoCongress),MichaelFlynn(lyingtotheFBI),Steve
Bannon(fraud),LevParnasandIgorFruman(illegalcampaign
donationsandfalsifyingstatementsandrecords),sofar.
ThatTrumpmadeit to 2017 withoutbeingpersonallyconvicted
ofa crimeis itselfa testamenttotheineffectivenessofwhite-collar-
criminal-law enforcement.ThatTrumphasnotbeenchargedsince
takingofficeis owedto theprivileges of beingpresidentof theUnited
States.BecausetheJusticeDepartmenthasa policy against charg-
ingthepresidentwithcrimes,it didnotindicthimforthesame
crimeCohenwenttojailfor—eventhoughTrumphadordered
Cohentocommitit. ThesameprotectionheldbackRobert Mueller
fromofficiallydescribingthemany actionsTrumphadtakento
obstruct theFBI’s investigationas“obstructionofjustice.”Andhis
standingaspresidenthasallowedhimtokeephistaxreturnsoutof
thehandsofNew Yorkprosecutors.
Butatsomepoint,theimpunity willend.Thelaw is coming.
Atthemoment,Trumpis reportedlythesubject ofthreeinves-
tigations.ManhattandistrictattorneyCyrusVanceJr.,NewYork
StateattorneygeneralLetitiaJames,andSouthernDistrictofNew
YorkactingU.S.AttorneyAudrey Straussareallprobingreported
crimesbytheTrumpadministration,rangingfromtaxfraudto
embezzlingfundsathissuspiciouslyexpensiveinauguration,a
largeproportionof whichwasspentat hisownproperties.(Strauss
tookoverafterWilliamBarrclumsilyattemptedtoremoveher
boss,whohadclashedwithBarroverhisinvestigationsinto
Trump’s misconduct, butis reputedtobeindependent.)
Evenbeyondtheseongoingprobes,thepotentialforcriminal
liabilityisvast.Trumpwasimpeachedforleveragingsupport
fromUkraineforanannouncementofaninvestigationofJoe
Biden.ButtheplotreportedlyinvolvedRudyGiulianiandhis
clientshittingupUkrainiansforbusinessdeals,evenasGiuliani
wasrepresentingTrump’s agenda—whichistosay, they were
apparentlyseekinga personalpayoff inadditiontoa politicalone.
TheWashingtonPosthaspriedloosefromtheSecret Servicejust
a portionoftherecordsofitsspendingat Trumpproperties,giv-
ingevidenceof, at minimum,severeconflictsofinterest.
Trump has fired and intimidated the inspectors general who
monitor the executive branch for misconduct and has virtually
halted all cooperation with congressional oversight. It stands to
reason that turning over more rocks will reveal even more
crimes. Upholding the rule of law is going to lead straight to the
kind of grisly spectacle Americans associate with banana repub-
lics: the former president leaving office and going on trial.
“Usually, these kleptocracies are the ones that hang on to
power most bitterly,” says Daniel Ziblatt, a professor of govern-
ment at Harvard and the co-author of How Democracies Die.
Trump is particularly dependent on his incumbency. His various
legal appeals to keep his financial information from prosecutors
have relied on his status as president, and he has used campaign
funds to finance his legal defenses. Most important, he has
bluntly wielded his power either to pardon his allies or to get the
Justice Department to withdraw its charges as a signal of the
benefit of remaining loyal.
The political climate will not easily permit a peaceful, straight-
forward prosecution. The maniacal Republican response to the
past two Democratic administrations shows that the prospect of
any real Republican cooperation is a fantasy. The fever is not
going to break. So what is a post-Trump administration to do?iden’s position on this problem is easy enough: He will
leave it up to the prosecutors. But what will the prosecu-
tors do? The prospect of fitting the orange man for an
orange jumpsuit, delicious as it may seem for MSNBC
viewers (or readers of this magazine), would create new
problems of its own. To begin with, it would be essential
that any prosecution of Trump not only be fair and free
of any political interference but be seen as fair. A prosecution that
appears vindictive would serve only to confirm the politicization of
the law that Trump has done so much to advance. Prosecutors in
New York and the Justice Department can make every effort to ap-
ply the law neutrally, not singling out Trump for punishment, but it
will be difficult to avoid the impression of banana-republicanism
formed by the sequence of a Trump criminal trial following an elec-
tion defeat— especially when his supporters have been primed to
fight “witch hunts” for years. Want to lock up the “Lock her up!” guy?
Good luck avoiding the appearance of turnabout, however legally
legitimate the process.
An incoming Biden administration is going to need a peaceful
transition—not least because the federal government will probably
be either distributing or in the final stages of approving vaccines and
treatments for a pandemic that has killed nearly 200,000 Ameri-
cans and is crippling the economy. Biden will require months of
some form of broad social cooperation with measures like mask
wearing and vaccine uptake, all of which could easily and legally be
sabotaged by a cornered Trump.
Biden has emphasized some measure of social peace as a cam-
paign message and will be tempted to offer a pardon as a gesture of
magnanimity—why not use all his partisan chits on substantive
policy goals?
Perhaps the closest American analogue is Richard Nixon, whose
fate was sealed by Gerald Ford’s decision to pardon. After an imme-
diate backlash, Ford came to be seen in later decades as a statesman
and was given the Profile in Courage Award by the John F. Kennedy
Library a quarter-century later in recognition of what became a
bipartisan consensus about the greater need for mutual toleration
than the rule of law.
From the standpoint of 2020, that decision has a different cast.
The president has emulated Nixon, borrowing everything from his
slogan (even Nixon and his vice-president Spiro Agnew resigning
in disgrace somehow did not prevent their “Law and Order” slogan
from surviving them in unironic form) to his position that if theAt some point, theimpunity will end.The law is coming.