Radio Yerevan: The Immunity Question

 

Question to Radio Yerevan: Is it correct that Donald Trump had an Article II where he had the right to do whatever he wanted as president?

Answer: In principle, yes, but

• first of all, he didn't really have it so much as he had access to it, as we all do, in the US Constitution, which is in the public domain, and easily accessible in excellent editions online if you don't want to burden yourself with a print copy;
• second of all, it describes what the president is required to do (to take care that the laws of the United States be faithfully executed), not what he has the right to do, which may not be the same thing at all, other than issuing pardons and making his own decisions on who he wants to name as ambassadors and cabinet secretaries and the like—and it specifically lists some things that he is absolutely not allowed to do, although he did in fact do them, such as taking money in exchange for hotel rooms and food and beverage service at his businesses from representatives of foreign governments, which isn't supposed to happen because it could be an efficient way of accepting bribe money if it were allowed; and
• third of all, he isn't president any more, at least at the moment, specifically because he also didn't have the right to stay in office after he lost his reelection bid, no matter how much he wanted to. Not that he didn't try.

One of the craziest pieces of news on this newsy day filled in some details on a Trump incident we heard about back when it happened, in summer 2019, when US intelligence caught an extraordinary satellite photo of the accidental explosion of an Iranian missile at its launch site, very classified, and sent it to the White House, and Trump promptly tweeted it.

What's news about this is what ABC News appears to have unearthed from the special counsel's investigation of the Mar-a-Lago stolen documents case, involving what Trump thought he was doing:

The image was captured by a U.S. satellite whose true capabilities were a tightly guarded secret. But Trump wanted to share it with the world -- he thought it was especially "sexy" because it was marked classified, one of his former advisers later recalled to special counsel Jack Smith's investigators, according to sources familiar with the former adviser's statements.

Worried that the image becoming public could hurt national security efforts, intelligence officials urged Trump to hold off until more knowledgeable experts were able to weigh in, the sources said. But less than an hour later, while at least one of those intelligence officials was in another building scrambling to get more information, Trump posted the image to Twitter...

The public pushback to Trump's post was immediate: Intelligence experts and even international media questioned whether U.S. interests had just been endangered by what Trump did. When pressed about it at the White House, Trump insisted he hadn't released classified information because he had an "absolute right to do" it.

The fact that the photo was classified was a reason why he thought he should tweet it. That made it sexy. I mean not sexytime sexy, but something his millions of Twitter followers would enjoy a lot. So why would he want to obey the intelligence officials and not give it to them?

Because he doesn't have any idea, literally, why the intelligence professionals didn't want him to do it. He has no idea, literally, why things are supposed to get classified. The only thing he knows about classification is another one of his presidential "rights": that if he thinks they're sexy he can declassify them. The only purpose of the classification system, as far as Trump is concerned, is to provide Trump with stuff he can declassify. Get a security clearance and impress your friends!

So he just decided it was declassified, by virtue of the magical powers invested in him by his mysterious Article II I guess, ignoring the experts on staff who begged him not to, and tweeted it out.

Meanwhile, we were spending the morning with the Supreme Court, wondering when it's OK for a president to commit crimes, as the Republican majority gathered around the proposal that presidents should not be allowed to commit crimes in their capacity as private citizens, but it's too burdensome to demand that they refrain from committing crimes while they're carrying out their official duties. 

That is, that's not exactly how they put it, but that's what it came down to. They put it in the form of a statement about what prosecutors should do, if they have reasons to suspect a president may have committed a crime: to charge or not to charge? It goes without saying that they shouldn't do anything at all until after the president has left office, because something something Office of Legal Counsel something, and they didn't consider what should happen if the president never left office, or bequeathed the office to his firstborn, or whatever. But they seemed to think prosecutors should feel free to prosecute a former president only for the privately committed crimes, and leave the officially committed crimes alone, because otherwise some overexcitable D.A. would be prosecuting George W. Bush for lying to Congress, or booking Barack Obama for murder (although in fact they wouldn't, in the second case; the Office of Legal Counsel determined that killing the ISIS combatant Anwar al Awlaki with a drone strike on his hideout in Yemen would be lawful, in spite of the fact that Awlaki was a US citizen, before Obama gave the order—his Article II was nowhere near as promiscuous as Trump's). No president would feel safe making those hard decisions in the knowledge that criminal courts all across the country were waiting to snatch him as soon as his successor was inaugurated.

I couldn't help feeling the weirdness of devoting all this argumentation to the case of Donald Trump. What weighty decision would he be making where he'd feel inhibited by the fear of frivolous prosecution? What weighty decision did he ever make at all? We don't have any evidence of anything like that in the memoirs and anecdotes I've seen, or in the narratives of these indictments either, in which he's mostly concerned with preventing the Biden inauguration for reasons he never expresses, or preventing the FBI from getting hold of any more of the stolen documents than he can help, "individual acts for private benefit", as Justice Barrett called them. 

He spent most of his time in the White House watching television, eating fast food, and checking on people's loyalty, as far as we know. Every once in a while, he'd come up with a kind of policy proposal—build a wall, create a healthcare plan that's better than Obamacare and also cheaper, do some infrastructure thing of some kind, bomb Iran—and maybe one of the courtiers would try to think of something that might resemble whatever it was, so he'd feel heard, and maybe they wouldn't. Stephen Miller could often think of something sadistic on the subject of immigration, and get it implemented. I guess Larry Kudlow and Stephen Moore were principle architects of the Tax Cuts and Jobs Act, though it didn't in the end feature any of the original-sounding "ideas" from Trump's 2016 speeches, like the unspecified revenue measures that would make the plan revenue-neutral, or the elimination of unspecified "corporate loopholes that cater to special interests", or "stopping the hedge fund guys" from "getting away with murder", or making childcare expenses 100% deductible. What they came up with looked exactly like the kind of deficit-ballooning, rich-favoring plan the old Lafferites would have come up with if Trump had never attended a meeting, and there's no reason to suppose he ever did.

And indeed, he might have done nothing at all as president other than "individual acts for private benefit", trying to protect himself (financially and legally), trying to get DOJ and IRS to persecute his enemies, and curating his image in the perpetual campaign, and the whole administration record wouldn't look any different. Maybe that's pretty much all he did do. I've pointed out before how he wouldn't even read the speeches they wrote for him until it was time for him to deliver them.

In fact it's probable that, if the Court sends the case back to the circuit court to sort out the charges into those for crimes committed when Trump was in his private aspect (chargeable) and those when he was performing his official duties (immune), the circuit court will find that they're all private, as Barrett archly suggested in her questions, because the private things were practically all he ever did:

Barrett, in summarizing Smith's court brief, asked Sauer about an alleged interaction involving Trump.

"Petitioner turned to a private attorney, who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results. Private?" Barrett asked.

"That sounds private to me," Sauer said...

"Petitioner conspired with another private attorney who caused the filing in court of a verification signed by Petitioner that contained false allegations to support a challenge. Private?" Barrett asked.

"That also sounds private," Sauer said...

"Three private actors, two attorneys ... and a political consultant helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, and Petitioner and a co-conspirator attorney directed that effort," Barrett said.

"That's private," Sauer said.

They could end up trying the exact same case after all that effort, just four or five months later than planned. As if that was the entire purpose of this pantomime, which it may well be.

The really ridiculous part being that the whole argument is obviously specious:

“Presidents have to make a lot of tough decisions about enforcing the law,” Alito said. “Did I understand you to say, ‘Well, you know, if he makes a mistake, he makes a mistake. He's subject to the criminal laws just like anybody else’? You don’t think he’s in a peculiarly precarious position.”

Dreeben countered that a president has access to legal advice before making decisions and is under a constitutional obligation to be faithful to U.S. laws and the Constitution.

It's not tough at all for presidents to make a decision as to whether a particular line of presidential conduct is lawful or not—they've got an army of incredibly qualified lawyers to do it for them. Trump's problem was that, unlike all normal presidents, he wouldn't listen to them, or would listen only (like Nixon before him) to the bent ones, precisely because they were bent. 

And the evidence is completely clear on that, as we all saw from the House committee hearings. He committed those crimes because he wanted to commit them, and he wouldn't let the lawyers talk him out of it.