Hey, hive mind: is there an app for keeping track of Trump’s various criminal and civil trials? (Ideally one that does not require me to update my operating system.) Between the Mar-a-Lago documents case in south Florida; the January 6^thcase in Washington DC; the RICO case in Fulton Country, Georgia; the affair-with-the-porn star/hush money case in New York City; the Trump Organization tax fraud case also in New York; and the second E. Jean Carroll defamation and sexual assault case (in which a judge ruled against Trump for a second time just today), I’m having trouble keeping up. 

It’s on my mind, because this week the Washington Post’s Ruth Marcus reported on Trump’s latest legal maneuver in the most serious of those cases (though not necessarily the one that puts him in the most legal jeopardy), the January 6^th prosecution brought by special counsel Jack Smith. She writes:

Any day now, Donald Trump’s lawyers are poised to unveil the former president’s shoot-the-moon defense against election-related charges: that Trump possesses absolute immunity from prosecution for what they claim are his official actions as president.

That, of course, has long been Trump’s first and last line of defense: “I am king.” But in order to present that argument to a judge in hopes of having her throw the January 6 case out, his lawyers have been compelled to dress it up in legal mumbo-jumbo. What kind of mumbo-jumbo you ask? Marcus explains:

Trump’s lawyers plan to argue that the actions cited by federal prosecutors as criminal violations were within the scope of Trump’s constitutional duty as chief executive to “take care that the laws be faithfully executed.” 

I’ll repeat that, since I’m sure some of you are slapping the sides of your heads to make sure you read right. 

Trump intends to claim that mounting a months-long disinformation campaign to undermine public confidence in the vote ahead of Election Day 2020, conspiring to overturn the results once he lost; using the power of the presidency to spread the lie that he was robbed; strong-arming state election officials to cheat on his behalf ex post facto, concocting a scheme to send false electors to the Electoral College; interfering with the actions of the US Congress in carrying out its duty to affirm the results; and finally, when all else failed, summoning an armed mob to attack the US Capitol to try to stop the certification of his opponent’s victory and murder his own vice president and other members of Congress in the process, somehow constitute his own presidential job requirement to “take care that the laws be faithfully executed.”

Wow. Every time I think Trump has hit rock bottom in the audacity trench, he picks up a shovel and begins to dig.

THE BOLD AND THE BEAUTIFUL

Marcus calls this legal gambit “bold,” which is generous in the extreme. Some alternative adjectives: brazen, shameless, arrogant, outrageous, infuriating, headspinning, bloodboiling, ridonkulous. Let’s try some nouns: the height of chutzpah, nerve, and gall; a waste of taxpayers’ time and money; reflective of a mind-blowing sense of entitlement; contemptuous of the legal process and democracy full stop; and an obvious and transparent procedural ploy that’s an insult to the court in which he will have to stand trial. 

Shall I go on?

This motherfucker has spent his whole life leveraging his obscene privilege and wealth to avoid repercussions, in the process making a mockery of the justice system over and over, and he’s trying to do it again. (Meanwhile, he sticks to his call for the death penalty for the young men now known as the Exonerated Five, even after they were proved innocent in the 1989 Central Park jogger case. Back then Trump took out full-page ads in four New York City newspapers, including the Gray Lady herself, calling for their execution. Apparently, like a lot of Republicans, he’s very selective about whom the criminal justice system should go after, irrespective of their guilt or innocence.)

In any event, given the amount of legal jeopardy Trump is in, and his self-evident panic at the prospect of going to prison, we should not be surprised that he and his attorneys are trying everything they possibly can to avoid that fate, no matter how batshit. Still, this ploy beggars belief. It’s Nixon’s already risible “when-the-president-does-it-it’s-not-illegal” defense taken to an extreme that even Tricky Dick would not have dared broach. 

And the particulars in no way make it less astonishing. 

With characteristic Trumpiness, The Former Guy’s lawyer John Lauro called Trump’s attempts to overturn the election “within the penumbra of executive action….of what President Trump under the constitution was required to do as president.” (Pause to take in jawdropping irony.) Lauro also declared that the special counsel’s case “essentially indicts President Trump for being President Trump and faithfully executing the laws and executing on his take care obligations.” (Pause again. Pour bucket of cold water over head.)

What could be Trumpier than claiming that he had an absolute right as president—nay, a duty—to overturn the election? (NOTE: Applies only to presidents named Donald Trump.) It’s a dip into the surreal, Bizarro World parallel universe of authoritarianism associated not only with Kafka, but also Lewis Carroll and George Orwell…..except in this case, it’s the defendant engaging in a theater of the absurd. And we are forced to indulge him, because that’s the way the justice system works, even when the defendant is a despicable cretin who has exploited and abused the goodwill of that system his entire life and gotten away with it.

So far. 

LEGALLY BLONDE ON BLONDE

The notion that trying to overturn a free and fair election and hang onto power in defiance of the will of the people—let alone through violence—is a normal function of the US presidency does not deserve to be dignified with serious consideration. So is it a waste of time to delve into whether there is even a scintilla of legal justification for this argument?

Marcus explains that in a 1982 case called Nixon v. Fitzgerald—fittingly—the Supreme Court ruled 5-4 that “presidents possess absolute immunity from civil suits for damages arising from their official actions, both while in office and after they leave.” The court also affirmed a wide berth for what constitutes “official actions.”

But not wide enough to include an autogolpe.

Trump’s previous lawyers (a big and not very exclusive club) have tried this defense before, and recently—specifically, to shield him from civil cases involving injuries suffered during the Insurrection. But in February 2022 US District Judge Amit Mehta ruled that the precedent set in Nixon v. Fitzgerald did not preclude such suits. Marcus: 

Mehta noted that Trump’s responsibility under the ‘take care’ clause did not extend to the certification of presidential electors, in which the president plays no assigned role. And, he said, while speech “is unquestionably a critical function of the presidency,” that does not insulate all presidential speech.

He cited the example of a president who touts his accomplishments at a campaign rally but also instructs the crowd to punch a protester in the face. “These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here”…. 

Trump, he said, was acting with “an electoral purpose, not speech in furtherance of any official duty.”

That decision is being appealed. 

But this case concerns completely different kinds of actions on Trump’s part, ones that put him in far hotter legal water.

(Those) lawsuits focus on the “bully pulpit” aspect of the presidency, in this case Trump’s tweets and his speech on the morning of Jan. 6 urging his supporters to go to the Capitol and “fight like hell.” But the Jan. 6 indictment doesn’t hinge on Trump’s remarks. Rather, it sweeps in efforts to organize fraudulent slates of electors and to pressure state officials not to certify the election results—acts that appear far afield of Trump’s presidential responsibilities.

Appear?

Let’s also note that the Nixon decision concerned only civil charges, not criminal ones.

(T)here has historically been little doubt that presidents could face criminal liability for their actions—only debate about whether that could take place while they were in office. Alexander Hamilton wrote in Federalist 65 that a president impeached and removed from office “will still be liable to prosecution and punishment in the ordinary course of law.”

Not clear why Hamilton’s remark didn’t rhyme. 

Trump recently made a similar “absolute unfettered power” argument apropos of a separate legal threat, the Mar-a-Lago documents case, telling the execrable WaPo columnist Hugh Hewitt: “I’m allowed to do whatever I want. I come under the Presidential Records Act….At trial, I’ll testify.”

I look forward to that. If his lawyers let him get on the stand (can they stop him?) and he says that, even before the super-friendly Judge Aileen Cannon, it’s hard to see how that doesn’t sink the SS Trump like the Titan submersible on its way to join the Titanic at the bottom of the North Atlantic. 

NUREMBERG MON AMOUR

While I have no doubt that Trump really does believe he’s above the law, and that he and his lawyers would love for the court to agree and toss the case, it’s unlikely those lawyers think this is going to work, even if their deranged client does. Their real goal, of course, is to delay the trial—currently set for this coming March—until after the election, and ideally, forever. Running out the clock is the standard, go-to trick Trump has used ad nauseam throughout his entire lawsuit-strewn life. And pretty successfully, I am disgusted to say.

Only slightly less brazen than Trump’s argument is Mark Meadows’ claim that he was “only following orders” (German accent optional), just doin’ his job, trying to overturn an election and that sort of thing—ya know, regular White House Chief of Staff stuff. Many of his co-defendants have made similar arguments, predicated on the idea that they were simply acting at the direction of the president and carrying out what they believed were legitimate job-related tasks. It’s a position that the legal system—like the law of war—has resoundingly slapped down time and time again over centuries of jurisprudence, and will presumably do so again in this case. Being an obedient foot soldier in the commission of crimes is no defense, nor is ignorance of the law (“I forgot armed robbery was illegal”), nor a genuine but mistaken belief in the rightness of what one is doing. 

More to the point, we know that many of these defendants are not genuine at all in making those claims, that they knew very well that what they were doing was illegal, since a large number of them are fucking lawyers.   

But Trump’s own lawyers are operating in a whole ‘nother realm of taurine manure in attempting to extend this same stance to the boss himself. And when I say “Trump’s lawyers,” I mean Trump himself, as it’s obvious that he insists on charting his own (frequently losing) legal strategies, and demands that his attorneys do as they are told if they want to keep their jobs. (Many—Bartleby-like—ultimately decide they’d prefer not to.) 

It also seems clear that he personally dictates the verbiage of some of the motions that his various attorneys have filed in various cases over the years, filled as they are with irrelevant ranting about his victimization du jour, rambling complaints about the “stolen” election and accusations about the villainy and/or mental illness of his opponents and even the judges to whom the motions were presented, not to mention braggadocio about his big, beautiful presidency and how his fingers aren’t really short, they’re not they’re not they’re not! 

(All the lawyers do is remove the CAPS LOCK.)

In this latest episode, Marcus reports that Lauro has said he will file “a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case.” (Italics mine.) 

That’s a nice one: insulting the court even as they brag about how smart their filing will be. (Spoiler alert: it won’t.) But that’s another standard part of the Trump M.O. After being hit with RICO charges in Georgia last month, a huffing and puffing Donald announced on Truth Social that: “A Large, Complex, Detailed but Irrefutable REPORT on the Presidential Election Fraud which took place in Georgia is almost complete & will be presented by me at a major News Conference at 11:00 A.M. on Monday of next week in Bedminster, New Jersey.” That report, he promised, would be so convincing that all charges would immediately be dropped. (Spoiler alert  #2, in case you DVR’d it to watch later: they weren’t, and not simply because he canceled the press conference and produced no such report.)

Trump’s empty bravado would be comic were we not so regularly tortured with it, and were it not so damaging to the rule of law.   

RED CARD FOR TIME-WASTING

The odds that the courts will side with Trump on this motion are low. But the fact that he intends to bring it at all, and that we will have to deal with it, is maddening. 

What other absurd claims will Trump make that we have to indulge? He could claim that he is the 172^nd reincarnation of the Egyptian boy-king Hotepchednezzar, the eternal Sun God, with dominion over all the birds of the air and fish of the sea and all the creatures who walk upon the land on two legs or four, and therefore not subject to the laws of mere mortals. Would we have to humor that assertion, too, and let it wend its way through the courts before we proceed with grownup business here on Earth 1? 

As Marcus notes, even if this outrageous ploy is doomed to fail, its function as a stalling tactic is the bigger threat. “In the civil litigation over Trump’s immunity, Mehta ruled in February 2022, the appeal was argued in December, and there’s still no decision. If Trump’s goal is to delay, he might be able to win by filing this losing motion.”

It’s taken two years just to bring these various indictments against this man who has demonstrated a lifelong contempt for the rule of law and an imperial belief that he is above it, even as he has been the howlingly undeserving beneficiary of that very system over and over and over again. Now, when he is finally beginning to be held accountable for the first time in his miserable life, we should not let him game the system once more in a serpentine attempt to evade justice yet again. 

Judge Tanya Chutkan is clearly a no-nonsense jurist who has no time or patience for bullshit. That has been her record and her reputation and she is living up to it. Let’s hope that, seeing this motion for the shameless delaying tactic that it is, she makes short work of it, prevents the accused from engaging in further chicanery, and proceeds with the people’s business….which is to say, bringing this disgraceful excuse for a human being to justice and making him answer for his crimes. 

As the pharaohs like to say: so let it be written, so let it be done.

**********

Courtroom sketch by Jane Rosenberg