In this perilous moment for democracy, with the mainstream media (finally!) pumping out a plethora of warnings about the ’24 election and the mounting threat of home-grown fascism, you may be forgiven for believing that there’s nary a scintilla of good news.
But there is some! I kid you not!
In a mere 90 days (but who’s counting?), the aspiring fascist will go on trial in federal criminal court for his relentless attempts to stage a coup and stay in office despite his 2020 defeat. The prosecution’s case is rock-solid, he will be tried by a jury of his betters, and it’s quite likely that he will be found guilty – which means that the MAGA-Putin cult would be stuck with a presidential nominee who doubles as a convicted felon with a date for sentencing on his personal calendar.
Best of all, the polls say that even a sizable share of Republicans would balk at the prospect of hiring a criminal to run the country, which I suppose is our very last line of defense.
Why do I think that a criminal conviction in the Washington, D.C. trial is “quite likely”? Because federal judge Tanya Chutkan has no tolerance for MAGA bullshit – as evidenced by her kickass ruling last Friday, when she demolished Trump’s desperate motion to dismiss the entire case. He claimed (hold your laughter until the end of this sentence) that he was entitled to “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official” presidential duties. This was a fascinating theory, given the fact that his “outer perimeter” of duties featured subversion of the Constitution he’d sworn to protect, plus the four federal crimes detailed in the indictment.
Judge Chutkan stomped on his bogus argument, clearing the way for trial on schedule. Let’s luxuriate on some excerpts from her ruling, to remind ourselves that justice in this benighted country is not dead and that hope springs eternal:
“The Constitution’s text, structure, and history do not support (Trump’s) contention. No court – or any other branch of government – has ever accepted it. And this court will not so hold. (The presidency) does not confer a lifelong ‘get-out-of-jail-free’ pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office...
“Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens...By definition, the President’s duty to ‘take Care that the Laws be faithfully executed’ does not grant special latitude to violate them...
“America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time. In Federalist No. 69 – titled ‘The Real Character
of the Executive’ – Alexander Hamilton emphasized the ‘total dissimilitude between [the
President] and the king of Great Britain,’ the latter being ‘sacred and inviolable’ in that ‘there is
no constitutional tribunal to which he is amenable; no punishment to which he can be subjected’…That widely acknowledged contrast between the President and a king is even more compelling for a former President…
“Perhaps no one understood the compelling public interest in the rule of law better than our first former President, George Washington. His decision to voluntarily leave office after two terms marked an extraordinary divergence from nearly every world leader who had preceded him, ushering in the sacred American tradition of peacefully transitioning Presidential power – a tradition that stood unbroken until January 6, 2021.
“In announcing that decision, however, Washington counseled that the newfound American independence carried with it a responsibility: ‘The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.‘ (Otherwise) ‘cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.‘ In this case, Defendant is charged with attempting to usurp the reins of government as Washington forewarned.”
Translation: Trump is on a glide path to adjudicated criminal guilt. And earlier today, Jack Smith’s prosecution team said in a new court filing that it will prove Trump’s “motive and intent” to subvert the ’20 election, capped by the Capitol insurrection: “Perhaps most importantly, the defendant’s embrace of January 6 rioters is evidence of his intent during the charged conspiracies, because it shows that these individuals acted as he directed them to act; indeed, this evidence shows that the rioters’ disruption of the certification proceeding is exactly what the defendant intended on January 6.”
Will Trump’s lawyers appeal Chutkan’s ruling to the higher courts? Of course. But, as former federal prosecutor Dennis Aftergut points out, Chutkan “meticulously crafted” her decision “with the Supreme Court in mind,” relying on the Constitution’s literal text. And appellate judges have acted speedily on other Trump cases, exhibiting “impatience with Trump’s attempts to exploit the time courts take to act so he can run out the clock.”
I continue to believe that when the chips are down, a majority of voters, or at least a share of voters sufficient to sway the Electoral College, would refuse to choose a convicted felon. Or perhaps I’m just grasping at straws. We’ll know for sure in 11 bumpy months.