the national interest

Republican Senators Are Asking the Courts to Take Care of Trump for Them

In front of the bars, for now. Photo: Mandel Ngan/AFP via Getty Images

Donald Trump limped his way to acquittal in his second impeachment trial, with 57 senators voting to convict him of inciting insurrection. But it is an ominous sign that not only did many of the senators who did vote to acquit base their position on a technicality — Trump was supposedly ineligible for impeachment as an ex-officeholder, as opposed to not guilty of the crime — they conspicuously pointed toward the court system as a venue for further prosecution.

“The ultimate accountability is through our criminal justice system where political passions are checked,” said Republican senator Thom Tillis, who voted not guilty, “No president is above the law or immune from criminal prosecution, and that includes former president Trump.” Mitch McConnell, who likewise voted to acquit, announced, “Impeachment was never meant to be the final forum for American justice. … We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”

This might seem fanciful, or a convenient way for Republicans to evade responsibility. But Trump is facing serious legal exposure.

As Jeff Wise wrote for us back in September, Trump is the subject of two ongoing investigations in the state of New York. One, by Manhattan District Attorney Cyrus Vance, is criminal. The other, by Attorney General Letitia James, is currently civil, but could easily become a criminal case.

Both these investigations concern financial crimes that have, at least in part, been documented by the media and appear to involve relatively clear violations of the law. Trump has made several deals in which he apparently kept two sets of books, giving one set of numbers to his lenders and a very different set of numbers to tax authorities.

Even if prosecutors turn up nothing new, which is hardly a given, he faces a high risk of being charged. There’s no reason to believe the investigations are getting better for Trump, and plenty of reason to believe they can get worse. The Wall Street Journal today reports that Vance’s probe is expanding to look at additional Manhattan properties not previously known to be part of his investigation.

Third, both Georgia’s secretary of State Brad Raffensperger and Fulton County prosecutor Fani Willis are investigating Trump’s campaign to pressure state officials to flip the vote there. Willis has suggested Trump might have committed either criminal solicitation to commit election fraud, or racketeering, by demanding they “find 11,780 votes,” an almost comically corrupt request he was caught making on tape.

And fourth, Trump’s role in inciting the riot, or refusing to take action to halt it once underway, could also be the subject of criminal investigation. There’s no known probe of this matter, which would require a Department of Justice that is no longer controlled by his lackey, Bill Barr. Testimony could easily produce more incriminating evidence that Trump not only incited a mob but refused entreaties by fellow republicans to call a halt to it, instead using the violent pressure to force them to participate in his scheme to overturn the election.

The best protection Trump would enjoy from any of these known or potential investigations is the informal aura of legal impunity granted to former presidents. That protection has been stripped off by the insurrection, and the tepid defense mounted by his former party.

Republicans in Congress may not want to anger their base by voting openly to disqualify Trump from office. But they very obviously wish for Trump to be disqualified by somebody else. The pointed gestures toward the courts by McConnell and his allies are a clear signal that those judges shouldn’t extend to Trump any special protection.

Judges don’t think exactly like elected officials do, of course. But they don’t think completely unlike them. The motivation of jurists is a mysterious elixir of legal principle and political calculation. Their reasoning needs to make some sense, but the bar of “reasonable” tends to be much lower to reach a favorable ruling for their team.

Republicans are going out of their way to tell the courts that they don’t see Trump as a member of their team. Will nobody rid them of this turbulent Florida man?

Republicans Ask the Courts to Take Care of Trump for Them