Doing Whatever He Wants

The King can do no wrong. That's a ancient legal maxim which has no place in a democracy -- because democracies aren't ruled by kings. But, Ruth Marcus writes, Donald Trump has twisted that maxim to new and absurd levels. He believes that:

The king can do whatever wrong he damn pleases, and there’s nothing you can do about it.

This approach, aggressive to the point of outlandish, was on florid display in a federal appeals court in New York this week, as the president’s private lawyer asserted that, yes, Trump could actually shoot someone in the middle of Fifth Avenue with impunity so long as he is president.

You'd think that Trump and his lawyer would have been laughed out of court. But his lawyer -- who clerked for Supreme Court Justice Clarence Thomas -- was serious:

Trump lawyer William S. Consovoy was not only asserting that the president is immune from being criminally charged while in office. He was claiming that the president cannot even be investigated.

To understand the radical nature of this claim, consider the setting in which it arose. Manhattan District Attorney Cyrus Vance Jr. is seeking documents — not testimony, just information, including eight years of Trump’s tax returns. He is seeking them not from Trump himself but from his accounting firm. They would be protected from disclosure by grand jury secrecy. Apparently, however, the king’s business can do no wrong either.

Second, consider the difference between Consovoy’s assertion and the approach taken by former special counsel Robert S. Mueller III. Complying with Justice Department policy, Mueller accepted that Trump couldn’t be indicted. But Mueller explained that it was not only permissible to conduct an investigation while Trump was in office, it was also important to collect evidence while it was still fresh. Indeed, the very Justice Department memo on which Mueller relied made clear that a “grand jury could continue to gather evidence throughout the period of [presidential] immunity.”

This is an astonishing departure from settled law. In U.S. v. Nixon in 1974, a unanimous Supreme Court upheld a subpoena for tapes of the president’s private conversations while in office, rejecting “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Vance’s subpoena, by contrast, calls only for Trump’s private records; it would not chill his ability to receive candid advice from aides.

In 1997, again unanimously, the court ruled that another sitting president, Bill Clinton, could be sued for sexual harassment in federal court. Although the decision did not address the question of state lawsuits, it is hard to imagine how a civil lawsuit could be allowed while a grand jury subpoena for his records would go too far. Which is a greater distraction for a sitting president?

The dangerous audacity of Trump’s position becomes clear: Whatever information his adversaries are seeking, whether in a lawsuit or a congressional inquiry, they can’t have it. And he is making the claim everywhere.

Parents recognize the behaviour. It's another example from "the terrible twos."  Two year olds throw tantrums when they don't get their way. Some of them step out of their diapers and spread their excrement everywhere. That's precisely what Donald Trump and his enablers are doing.

Image: Envisioning The American Dream