Is Donald Trump Above the Law?

“You come at the king, you best not miss.”

— Omar Little, The Wire

It has been 20 months since an enraged and armed mob of Trump supporters stormed the U.S. Capitol, seeking to stop the peaceful transfer of power. Some in the crowd called for then-Vice President Mike Pence — the constitutionally designated presiding officer at the joint session of Congress convened to certify Joe Biden’s election victory — to be hanged. Some members of the House and Senate hid, while others fled for their lives. Five people died. Far more, including 140 police officers, were injured.

What happened on January 6, 2021 has aptly been termed an insurrection — a violent attempt to overturn the results of a democratic election and, in effect, overthrow the government. Since then, an estimated 928 people have been arrested and charged with federal crimes for participating in the attack. Scores have been convicted.

But the man at the center of the insurrection — Donald Trump — remains unindicted. Far from being held to account, Trump has solidified his hold on the Republican Party. The “big lie” that the election was stolen has become an article of faith and a driving force for the neo-fascist movement he embodies and leads, posing an existential threat to the survival of democracy.

In the immediate aftermath of the insurrection, even after Trump was acquitted in his second impeachment trial, it appeared that justice would come quickly for the former president. Even Senate Minority Leader Mitch McConnell, who shamelessly voted for acquittal, predicted a day of reckoning would arrive. In an uncharacteristically impassioned speech on February 13, 2021, McConnell told his colleagues that Trump was “practically and morally responsible for provoking” the assault on the Capitol.

Far from being held to account, Trump has solidified his hold on the Republican Party.

“President Trump is still liable for everything he did,” McConnell declared. “He didn’t get away with anything. Yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former [presidents] are not immune from being accountable by either one.”

It was the second “yet” that got to me then, and that lingers still.  

To be sure, Trump has been sued civilly many times — most notably, by New York Attorney General Letitia James in a massive bank and insurance fraud filing unrelated to the insurrection — but we’re still waiting for the criminal justice system to drop  the hammer. 

This isn’t to say that the justice system has been quiet. To the contrary, Trump has attracted the attention of multiple criminal grand juries, and the legal vise appears to be closing on several fronts. Still, there are no signs  of an imminent indictment. 

In part, the holdup may be due to good old-fashioned hand-wringing. Over the past few months, a debate has unfolded among legal scholars and commentators about the wisdom of prosecuting Trump and the potential political and social destabilization an indictment could spark. Referring to the search at Mar-a-Lago, Trump has warned that the country would face “problems … the likes of which perhaps we’ve never seen” if he is indicted.

Plainly, there are inherent risks in breaking new legal ground with the indictment of a former president. Apart from the rather comical arrest in 1872 of President Ulysses S. Grant by a District of Columbia police officer for driving his carriage through the streets of Georgetown at an excessive speed, no American president has ever been charged with a criminal offense. Not Andrew Johnson, not Richard Nixon, not Bill Clinton and not — at least thus far — Trump. 

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing. The rule of law begs for Trump to be held accountable.

One of the central myths of American democracy is the principle that no one is above the law. The myth is drilled into us from our earliest days in social studies classes to the platitudes we still hear every July Fourth.  Yet the myth in practice has all too often proven to be just that — a lofty notion that at best applies to ordinary Americans but allows the rich and powerful to do exactly as they please with few adverse consequences.

While it can be tempting to fall into despair at the lack of resolution, there are three good reasons to maintain hope.  

One of them is a county-level Georgia district attorney named Fani Willis. This past May, the Fulton County D.A. convened a special grand jury to investigate Trump and others for trying to alter the state’s 2020 election results. In an interview with The Washington Post in September, Willis said her office had examined about “65% of the dozens of witnesses” she wants to question. 

A failed Trump prosecution would be a lose-lose proposition, legally and politically. But the greater risk lies in doing nothing.

The D.A.’s witness list is impressive. In June, Georgia Secretary of State Brad Raffensperger, whom Trump pressured to “find” an additional “11780 votes,” took the stand. Two months later, she grilled Rudi Giuliani and attorney John Eastman, a former law school dean and clerk for Supreme Court Justice Clarence Thomas who is generally credited with devising the legal framework for Trump’s attempted coup d’état.

And Willis remains determined to move forward, waging dogged legal battles with Sen. Lindsey Graham, attorney Sidney Powell and Trump’s last chief of staff, Mark Meadows to compel them to take the oath, as well.

Willis also told the Post, “If indicted and convicted, people are facing prison sentences.” The decision to subpoena or bring charges against Trump, she added, will be made “late this fall.” 

Unfortunately, under Georgia law, special grand juries are investigatory only. They cannot return indictments. To charge Trump or anyone else with state crimes, Willis will have to complete her special inquiry and open a regular grand jury, a process that would likely bleed over into 2023.

A second front is active in New York City, where the Trump Organization is currently on trial for running an alleged 15-year conspiracy to commit tax fraud. In August, Allen Weisselberg, the company’s chief financial officer, pleaded guilty to the same charges. Under the terms of his plea bargain, Weisselberg will serve five months in jail instead of a long prison term. He will also testify as the prosecution’s star witness. 

If the Trump Organization is found guilty, it could face stiff financial penalties. But the case has nothing to do with Trump’s conduct as president, and in any event, Trump personally has not been indicted. In April, Manhattan District Attorney Alvin Bragg, who is in charge of the prosecution, opted to suspend a grand jury probe against Trump himself. A win against Trump’s company, however, could prompt Bragg to reopen the probe.

Then there are the ongoing (and accelerating) investigations of Trump at the federal level. 

A grand jury is investigating Trump for absconding from the Oval Office with a trove of classified and top-secret documents and stashing them at his Mar-a-Lago beach and golf resort in Palm Beach, Florida — potentially violating a section of the Espionage Act and two other federal criminal statutes that prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to 20 years in prison.

According to The Washington Post, some of the documents found at Mar-a-Lago contain sensitive information on Iran’s missile program and U.S. intel on China. It’s hard to imagine any legitimate purpose Trump had for taking and retaining such items.

However, progress in the investigation has been slowed by a set of arguably incompetent rulings issued by U.S. District Court Judge Aileen Mercedes Cannon, including one appointing a special master to review the Mar-a-Lago search. A 41-year-old with no trial experience as a lawyer but enthusiastically endorsed by the Federalist Society, Cannon was nominated to the bench by Trump and confirmed (with some Democratic votes) by McConnell’s lame-duck Republican-controlled Senate on November 13, 2020.

A second federal grand jury is reportedly examining Trump’s part in the plan to create fake slates of electors in seven swing states. The federal probe overlaps with Willis’ investigation, but is even broader. A third federal grand jury is looking into the fundraising practices of Trump’s Save America leadership PAC during the last election.

Most critically of all, the Department of Justice has expanded its inquiry into the insurrection to include Trump’s involvement in the attack and the possibility of charging him and other high-ranking aides with seditious conspiracy, incitement of insurrection and obstruction of Congress.

Delay is often Trump’s preferred legal strategy.

For the time being, however, the DOJ is focused on the rioters who physically breached the Capitol, and in particular, the Oath Keepers militia group. Five members of the group are on trial in Washington, D.C., for seditious conspiracy. The case is expected to conclude later this month. Should the DOJ prevail, the prospects of bringing similar charges against Trump could improve significantly.

Finally, there are the hearings conducted by the House select committee investigating the Jan. 6 attack. In a historic step taken on October 21, the committee issued a subpoena to Trump, directing him to appear for questioning on Nov. 14, either in person or via video link. Trump has boasted that he might comply if his appearance is broadcast live. More likely, he will fight the subpoena in court to avoid committing perjury or taking the Fifth, hoping the panel will be disbanded in January if the GOP takes over the House in the midterm elections. Delay is often Trump’s preferred legal strategy.

Until the committee is dissolved, it will have the option of referring Trump to the DOJ for prosecution, as it did with Steve Bannon, who was subsequently tried and convicted of contempt of Congress, and sentenced to serve four months in jail, pending resolution of his appeal. But such referrals are non-binding, and there is no assurance the DOJ would heed a Trump referral. The final decision would be up to Attorney General Merrick Garland. 

Garland, Willis and Bragg — the names sound like the partners of a high-profile law office — have an historic opportunity to breathe some much-needed life into the embattled but bedrock American ideal of equal treatment under the law. They must act, and the sooner the better. What’s left of our tattered and very imperfect democracy hangs in the balance.