Terry H. Schwadron
May 19, 2020
While Donald Trump manages to slip away from consistency altogether, the Trump legal dance has particularly proved tricky, a kind of legal quicksilver.
If you find legal fault with one argument, whether about immigration, congressional oversight or presidential powers, you’re likely to hear an “alternative facts” version. If you argue the facts, his team will resort to perceived constitutional protections, real or imaged. And if you argue the Constitution, his side simply goes back either to I-said-so or denies that the situation applies to him.
We got a good dose of all that in the arguments to the U.S. Supreme Court last week in the three linked cases that share the request to look into Trump finances and taxes. From the questions asked by the justices, a regular, if wild-guess estimate of the court’s internal arguments on the questions at hand, the Court looks to be headed for a split decision on presidential immunity.
No, the president is not above the law, the court seemed to be leaning towards arguing in the New York District Attorney’s arguments to demand tax information in connection with pursuit of specific fraud investigations. But yes, the Congress should face some kind of limits on asking a sitting president for personal information, the conservative judges who make up the majority seems to be signaling.
By his actions, Trump just finds following The Law to be optional, depending on his whim — as a king or despot would do.
Trump and the Law
It is the same Trump who insists on justices and judges who will not “make” new law who is in court opposing the precedents of cases involving Richard M.
Nixon and Bill Clinton.
This is the same Trump who thinks the whole idea of inspectors general represent a crimp in the system, rather than a means for public oversight. His solution: Simply eliminate them, with three gone in recent weeks, with outward political statements to accompany the dismissals.
The yet-same Trump quick-step is highlighted in the partisan political arena as well.
Republicans opposing Trump launched two ads on Fox News this week that challenge his legal maneuvers that they see as a shell game. The ad argues that Trump is telling Congress it has to go to court to obtain documents and then telling the courts they can’t weigh in because he’s accountable to Congress.
The fact is that Donald Trump sees himself as not accountable to anyone, apparently not even his own FDA and doctors recommending against taking hydroxychloroquine.
Weirdly, however, the same Trump thinks Barack Obama should be brought up on some kind of fantasy criminal charges because Trump’s campaign mixed it up with Russians. Even Atty. Gen. William P. Barr, the Trump sycophant, sees no legal merit here.
In or Out of Court
We saw similar legal juggling in the impeachment process. The House committees were legally wrong for not going to court to win orders to meet congressional subpoenas, Trump’s team argued. Then, in court, Trump’s lawyers argued the opposite, that the court had no jurisdiction in the matter.
With Barr in Trump’s personal corner for all-things-Russia, even guilty pleas by former Gen. Michael T. Flynn are not supposed to be legally valid because Barr disagrees with the reasoning for the FBI to have asked Flynn the questions that elicited lies to authorities about multiple areas, including inappropriate conversations with the Russian ambassador before Trump’s inauguration.
Now, we’re hearing out loud what only had been whispered, through speculative comments by Jared Kushner, of all people, that coronavirus may interfere with the November elections, raising the specter of Trump moving — unconstitutionally — to delay the elections, as if that were a power of his.
It is interesting that the group on the new Fox News ad, Republicans for the Rule of Law, which is basically made up of political conservatives, linked up with the nonpartisan group Protect Democracy that was launched by ex-lawyers for the Obama administration to argue that Trump, depicted in a monarchial crown, has no business presenting himself as king.
Win, Baby, Win
What seems to have prompted the group was Trump’s most recent dismissals of inspectors general designated to provide oversight of the Trump handling of stimulus money voted by the Congress.
In Trumpland, there is only winning. Not winning is for losers, including anyone asking even a neutral question about Trump administration policies or operations. So federal inspector generals who question whether $2 trillion in public money actually is getting to larger businesses rather than to intended small businesses, or what gunk there is in the never-before-used procedures to put actual cash in the hands of individual taxpayers, are seen as enemies, even before they have asked a question at all.
So, too, are congressional committees, particularly in the Democratic-majority House. So, too, are reporters who are scolded for asking “nasty” questions instead of praising the work of the White House in what obviously has been a flailing and bumpy road to providing testing that cannot assure workplace safety or assure protective gear to medical heroes of the pandemic.
It must have made Trump nuts to see Republican senators join in warnings from Dr. Anthony Fauci, the infectious disease expert, that we may be moving too fast for safety towards re-starting a dead economy.
Of course, were he to be King, Trump would simply not own the responsibility. He’d change the argument so any failure would be your fault.