On the morning of September 19, 2019, history will note, President Donald J. Trump officially declared himself to be this country’s first authoritarian dictator. On that day he announced to the world, in a court filing, that he was assuming unlimited criminal immunity to act within or outside the law. He also declared that anyone who works for him on his behalf is also above the law and cannot be investigated, charged or convicted of any crimes as long as he is in office. By logical extension, if no violation of the law can apply to him while in office, then no election can remove him from office and no Congress can remove him by impeachment or check his powers in any way.
This isn’t how the first draft of history read that day. Trump’s dramatic claims received relatively little notice. They came in a court filing and were so outrageous and incredible that no one took it seriously. The headlines on that Thursday read like some variation of this one from the New York Law Journal:
“Trump Sues Manhattan DA Vance in Federal Court in Wake of Tax Subpoenas”
In the wake of the Mueller investigation, with its assortment of indictments, trials, and convictions of Trump associates, there were over a dozen less noticed criminal investigations spun off to be conducted in other states by other prosecutors. It was a court filing in one of these lesser-known investigations that the President announced his sweeping declarations.
On October 7, 2019, District Judge Victor Marrero, of the Southern District of New York, summed up the President’s claim in an introduction to his ruling rejecting Trump’s claim. Judge Marrero’s ruling reads in part:
“The President asserts an extraordinary claim in the dispute now before this Court. He contends that… under the United States Constitution, the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind. Consider the reach of the President’s argument. [As] the Court reads it, presidential immunity would stretch to cover every phase of criminal proceedings, including investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial conviction, and incarceration. That constitutional protection presumably would encompass any conduct, at any time, in any forum whether federal or state, and whether the President acted alone or in concert with other individuals. Hence, according to this categorical doctrine as presented in this proceeding, the constitutional dimensions of the presidential shield from judicial process are virtually limitless: Until the President leaves office… [this includes crimes committed in*] his official capacity, but also to ones arising from his private affairs, financial transactions, and all other conduct undertaken by him as an ordinary citizen both during and before his tenure in office.”
“Moreover, on this theory the President’s special dispensation from the criminal law’s purview and judicial inquiry would embrace not only the behavior and activities of the President himself, but also extend derivatively so as to potentially immunize the misconduct of any other person, business affiliate associate, or relative who may have collaborated with the President in committing purportedly unlawful acts, and whose offenses ordinarily would warrant criminal investigation and prosecution of all involved.”
The judge concluded his introduction with these words:
“Because this finds aspects of such a [Presidential] doctrine repugnant to the nation’ s governmental structure and constitutional values, and for the reasons further stated below it ABSTAINS from adjudicating this dispute and DISMISSES the President’ s suit.”
The Trump Administration immediately appealed.
President Trump’s immunity doctrine stemmed from a criminal investigation to see if Trump’s non-profit organization falsified business records.
In summary, Cyrus R. Vance, Jr. is a District Attorney in New York. He empaneled a grand jury to probe whether the Trump Organization falsified business records related to money paid to Stormy Daniels and Karen McDougal prior to the 2016 Presidential Election to keep them quiet about his sexual relationships with them. These were payoffs funneled through Donald Trump’s personal lawyer, Michael Cohen. Some of these payments were by checks made out to Cohen from the Trump Organization, a non-profit entity registered in New York. These payments were categorized as legal fees on the books of this non-profit.
Paying to keep damaging information from the public during an election is a violation of campaign finance laws. Using money donated to a non-profit organization for personal use is also a violation of the law, as is falsifying business records to cover up such misdeeds.
The grand jury investigating the business records of the Trump Organization requires documents, tax records and the cooperation of Mazars USA, the accounting firm hired by the Organization. Trump sent a letter to Mazars USA and forbade the company from releasing his tax records. The jury subpoenaed the company to release the last eight years of Donald Trump’s tax returns. That’s when Trump made his move on unlimited Executive power.
How this constitutional crisis resolves is critical to our republic. By elevating William Barr to Attorney General, Trump, and the Republicans have removed any chance that the Barr-lead Justice Department will ever challenge any illegality committed by the President or his administration. By ramming through two ultra-partisan Supreme Court Justices, and by seating so many highly partisan judges to the federal bench, Trump and the Republicans are betting that all legal challenges to both Congressional oversights, or judicial challenges to Trump’s limitless criminal immunity doctrine, will ultimately fail. The complicity of Congressional Republicans in installing this all-powerful authoritarian government should now be obvious. Articles of impeachment should still be aggressively pursued, but it is no longer a given that an impeachment conviction in the Senate would remove Trump from office. Under his unlimited criminal immunity doctrine, it isn’t even certain that he will honor Presidential election results, or even allow future elections.
Here is where I believe we stand. If the courts don’t uphold the rule of law, all hope for the republic is lost. If the courts do uphold the rule of law after House impeachment and Senate conviction, then it will be up to some combination of the President’s willing capitulation, law enforcement, the U.S. military or massive national citizen protests to assure that Donald Trump leaves office. If the Senate won’t convict Trump of impeachable offenses, it is up to the voters to set the stage for the same options mentioned above. If Donald Trump is reelected, however, it will probably be too late to save our Republic from dictatorial rule.