Trump, Lawyers and Lunacy

Monday morning, Donald Trump will step into a New York courtroom as the first American president facing trial on a felony charge. For all the millions of dollars he has spent, Trump’s lawyers haven’t succeeded in preventing him from having his day in court.

Of all the arguments the lawyers have thrown against the wall, few have stuck, including the one about pre-trial publicity, mostly generated by Trump himself, tainting a New York jury pool. His lawyers have successfully delayed three of the four felony trials, even though most of their arguments have fallen flat. Many of them have bordered on ridiculous. You could say even looney, maybe setting the stage for the looniest argument. More on that later.

My personal favorite is the legal claim Trump enjoys absolutely immunity from any criminal prosecution. Under this concept, his speech on January 6, 2021 that encouraged his supporters to march to the Capitol, “fight like hell” and disrupt the count of electoral votes was just a regular part of his duties as commander in chief.

Trump’s attorneys also have asserted the former president magically converted national secrets into personal documents that he could stow away in a Mar-a-Lago bathroom like boxes of toilet paper. They allege his miraculous conversions of classified papers into personal mementos are permitted under the Presidential Records Act, apparently in a provision written in invisible ink.

His attorneys have insisted Trump should get a pass for posting a $464 million bond following a verdict that he defrauded New York for more than $2 billion, citing as the legal rationale that no one was willing to secure his bond. They didn’t Trump’s newfound source of wealth in the stock value of Truth Social. It’s possible that by the time Trump can sell his shares six months from now, they may not be worth enough to pay off his civil judgments.

John Eastman, best known for spinning the dubious theory that a vice president could toss out electoral votes at will, wrote a Supreme Court filing calling Trump’s 2020 loss inexplicable because no candidate in U. S. history had lost a presidential race after winning Florida and Ohio. His historical research apparently didn’t reach back as far back as 1960 when John F. Kennedy defeated Richard Nixon, who won Florida and Ohio.

In a legal brief to the U.S. District Court in DC, Trump lawyers cited a document with multiple voter fraud claims that had been disproven. The lawyers said the document nonetheless showed there were still “vigorous disputes” about the 2020 election outcome.

The coup de grace came in a Supreme Court filing that referenced a 2009 Minnesota Law Review article written by Brett Kavanaugh a decade before he was seated on the high court. Trump lawyers said the article recognized the potential dangers of presidents being subject to criminal or civil legal actions. Trump’s team failed to point out the following paragraph in Kavanaugh’s article:

“The point is not to put the President above the law or eliminate checks on the President,” Kavanaugh wrote, “but simply to defer litigation and investigations until the President is out of office.” The clue to the article’s bottom line was its title: “Provide Sitting Presidents with a Temporary Deferral of Civil Suits and of Criminal Prosecutions and Investigations”.

Trump photos: https://www.cnn.com/2021/01/08/politics/gallery/donald-trump/index.html

Delay Is the Strategy
Just like in childhood when you hid in the closet to avoid going to the doctor, Trump’s legal strategy at its core has been to pursue delay. Find anything and everything that can stall a proceeding and put off a trial. It didn’t work for the two civil cases that Trump wound up losing, which have created his current money bind. And his terror about the pending criminal trials.

Some observers speculate none of the trials may occur or be done with inevitable appeals before the November election when Trump, the presumptive Republican nominee, hopes to prevail and earn four more years of presumed presidential immunity.

Post-Election Conundrums
The prospect of a post-election criminal conviction poses conundrums. If elected and after being sworn in, could Trump quash his two federal indictments? Even if he could, Trump wouldn’t have the same power to dismiss felony cases or verdicts in New York and Georgia state courts. That prospect should haunt the U.S. Supreme Court as it hears arguments later this month on Trump legal claims to absolute immunity, which lower courts have already rejected.

Think back a moment to Kavanugh’s article that explored presidential immunity while in office and afterward. If his view becomes the court’s majority view, Trump could be prosecuted while out of office. But what about if he returns to office? Would he still be eligible for prosecution or is re-election the equivalent of a get-out-of-jail-free card? 

Other variations are equally thorny. Assume Trump is convicted in New York of falsifying business records to hide hush-money payments to a porn star before the 2016 election. His four-week trial could result in a felony conviction and a jail sentence before the Republican national convention in mid-July when Trump will be formally nominated.

Trump appeals of convictions on any of the 34 state charges could easily occur during the presidential campaign and extend past the November election into 2025 when Trump, if re-elected, would be back in power. Trump would have been charged, tried and convicted as citizen Trump in a state court for crimes committed before he became president, which means he might not have grounds or the power to pardon himself. That raises the prospect of Trump serving as leader of the free world while on house arrest in the White House.

Special Prosecutor Jack Smith is pressing hard to try Trump on federal charges of obstructing an official proceeding and conspiracy to defraud the United States in Washington, DC. That trial has been delayed until after the Supreme Court rules on Trump legal claims of absolute immunity. Assuming the court rejects Trump’s claim, that trial could proceed this summer, just as the presidential election campaign shifts into high gear.

A trial before a Washington, DC jury isn’t a promising prospect for Trump. He is likely to be convicted of at least one of the four felony charges against him. He could face prison time. But appeals of his conviction would extend well past his potential re-election and return to office. Could Trump pardon himself as a self-described hostage and make his conviction disappear?

The most clear-cut felony rap Trump faces is his violation of the Presidential Records Act involving his possession and retention of presidential papers, including documents marked as sensitive, at his Mar-a-Lago resort. Trump attorneys have been successful in delaying this case in Florida, perhaps well into the fall and even after the election.

By its substance, the Presidential Records Act pertains to what happens to presidential papers after a president leaves office. Even if granted absolute immunity for actions while President, Trump’s post-presidency possession of boxes of sensitive presidential documents and his refusal to turn them over to the National Archives would seemingly leave him legally exposed.

Trump and his attorneys have offered an array of incredulous explanations for the possession and refusal to surrender presidential documents. It’s unlikely even a Florida jury would believe some of them, such as Trump just touching the documents converted them his personal documents. The Trump-appointed judge overseeing the case has rejected that argument. If re-elected, it would be a tragic irony if a felon who mishandled national secrets would be given unfettered access to even more national secrets.

immunity. Assuming the court rejects Trump’s claim, that trial could proceed this summer, just as the presidential election campaign shifts into high gear.

A trial before a Washington, DC jury isn’t a promising prospect for Trump. He is likely to be convicted of at least one of the four felony charges against him. He could face prison time. But appeals of his conviction would extend well past his potential re-election and return to office. Could Trump pardon himself as a self-described hostage and make his conviction disappear?

The most clear-cut felony rap Trump faces is his violation of the Presidential Records Act involving his possession and retention of presidential papers, including documents marked as sensitive, at his Mar-a-Lago resort. Trump attorneys have been successful in delaying this case in Florida, perhaps well into the fall and even after the election.

By its substance, the Presidential Records Act pertains to what happens to presidential papers after a president leaves office. Even if granted absolute immunity for actions while President, Trump’s post-presidency possession of boxes of presidential documents and his refusal to turn them over to the National Archives would seemingly leave him legally exposed.

An Array of Lunacy
Trump and his attorneys have offered an array of explanations for the possession and refusal to surrender presidential documents. It’s unlikely even a Florida jury would believe some of them, such as Trump just touching the documents converted them his personal documents. The Trump-appointed judge overseeing the case has rejected that argument. If re-elected, there would be an irony if a felon who mishandled national secrets would have unfettered access to more national secrets.

All these scenarios seem crazy. So crazy, in fact, that one more crazy idea should be added to the mix. If convicted of any of the felony charges pending against him, Trump should push aside his attorneys and go to court to declare himself legally looney.

For once, no judge or jury would disbelieve him.

Trump could cite his niece, Dr. Mary Trump, a psychologist, who claims her uncle is a mentally unbalanced narcissist. Trump could blame his father who suffered from dementia. He could claim he has been betrayed by former staff members and the Deep State. He could amend his non-guilty pleas to innocent by reason of insanity. That’s the most believable legal argument he would have made.

Pleading bonkers, Trump could probably escape jail, perhaps his greatest fear. Instead, he could content himself in isolation at Mar-a-Lago by taking daily cognitive tests, waving at adoring crowds in a white gown, granting interviews for Steve Bannon’s podcast and posting on Truth Social until it goes bankrupt.

J6 “hostages” would be disappointed because they wouldn’t be pardoned – or able to pal around in the joint with their looney leader. Republicans could nominate someone with an interest in policy rather than revenge. He or she might even win the November election, either out of pity or relief.

The national lesson learned: No one is immune to insanity.