Robbins: Can Trump now be criminally prosecuted?
One theory behind the president’s manic dash for reelection and refusal to accept the wet mackerel-slap-to-the-face of the election results is simple self-preservation. Specifically, those who like to ponder on such things have offered that a key reason that Trump is clinging to the crumbling cliff of reelection is that it is his lifeline.
The simple question is this: can Trump — when he trundles, storms out, or is escorted from the White House — now be criminally prosecuted? And is at least part of the reason for his tantrum of denial his fear that the judicial reaper may be waiting with a catcher’s mitt to scoop him up?
Not saying that he should. Or shouldn’t. Just asking the question: Once the president leaves office — the POTUS torch is graciously or venomously passed — could Trump potentially be prosecuted?
For what, I’ll leave to your imagination. But considering the ample smorgasbord of crimes he has been accused of committing, the time span over which those alleged offenses may have occurred, the taint of official misconduct and abuse of power, the muscular enemies arrayed against him, the disdain with which he has treated and disparaged others, and the broad range of jurisdictions in which his crimes are said to have taken place, Trump’s potential legal exposure is mind-blowing. To paraphrase one of the president’s favorite brash locutions, “The likes of which we’ve never seen!’
Already more than a dozen investigations are underway against him and his associates. Even if only one or two of them ultimately hatches into in criminal charges, the fallout would be nuclear. If you think you’ve been glued to FOX or CNN or ABC waiting for the final election results to blossom on your screen, that is merely a prelude. Criminal prosecution of the former president would be caustic Gorilla Glue compared to that relatively anodyne multiple-purpose Elmer’s.
A first for everything
Think that it’s unlikely? Maybe.
Afterall, here in the United States, such a spectacle has never happened. No commander-in-chief has ever been charged with a criminal offense, let alone faced the steely prospect of prison time; although if Richard Nixon hadn’t turned in the keys to the White House and been pardoned by his successor, Jerry Ford … well, who knows? That it hasn’t happened here is something. But as Shakespeare penned in the aptly named “The Tempest,” what’s past ain’t necessarily prologue.
One need to look no further than Italy where, in 2012, the bombastic showman and long-time prime minister of that western democracy, 76-year-old Silvio Berlusconi, was tried and convicted for tax fraud, then padded off to a spare and lonely concrete cell.
Once Trump and company exit, the president — who will no longer be the POTUS — may face a harsh new reality. Not only will he forfeit a sitting president’s presumptive immunity from prosecution but also the levers of power he has aggressively relied on for the last four years will not longer be his to exercise.
Both the powers of government and those who serve the president will have tectonically shifted. Trump will be a citizen and, if not exactly quite the same as you and me, he will be out in a potentially hostile ecosphere to fend mostly for himself. And, one has to wonder, if those who huddled near him when the levers of government were his, might suddenly abandon the sinking ship of state.
Although the soon-to-be-ex-president’s life story seems to be one of more dodges than White Goodman in the movie of that eponymous name — “When you’re a star, they let you do anything you want!” — Trump may now find that the amplitude has been upped a notch. Stated simply, he may now face legal risks the likes of which he never imagined and never wanted to see.
What’s behind all this is the president’s presumptive immunity while still in office. While the U.S. Constitution explains how a president can be removed from office for “high crimes and misdemeanors” employing the process of impeachment, the Constitution is silent as to whether a sitting president can face criminal prosecution in court, and the U.S. Supreme Court has not directly addressed the question. What’s more, the United States Justice Department has a decades-old policy that a sitting president cannot be indicted. This is why, when Trump sat behind the Resolute Desk, the brakes were tapped. But once he steps out into the glare on Pennsylvania Avenue as an ordinary citizen, all bets are off.
Is a self-pardon really a thing?
Prosecuting Citizen Trump — at least for crimes allegedly committed when he was president — may present at least a few hurdles. First, on his way out, Trump may attempt to pardon himself. Scholars are divided on whether a self-pardon would be constitutional. How that shakes down might depend on the president’s bright, gleaming new Supreme Court.
If the court ultimately rules self-pardon unconstitutional, Trump will undoubtedly claim that “executive privilege” bars prosecutors from obtaining evidence of presidential misconduct.
And then there’s this; if Mike Pence remains loyal to the president even as the house of cards collapses, might Trump walk away from the presidency in his last few days and Mike Pence — a flash mob president — extend a pardon to him? (Insert shrug emoji here!)
One thing is for sure, even if prosecutors are sharpening their knives, this will all take time. Likely, great hair-pulling fistfuls of it.
Fasten your seatbelts; we may all be in for a bumpy ride.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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