From the looks of things, the 45th president’s campaign to avoid impeachment is failing, his bid to self-coronate turning to dust. The mist of prosecution is in the air.
As the Supreme Court returns from its summer vacation, Donald Trump was rudely reminded that he is neither king nor sovereign, and that a sitting president is not immune from criminal investigation. Rather, he who dwells in the White House simply sits atop a co-equal branch of government, and is expected to obey the law. Apparently, l’état, ce n’est pas lui.
Just as the American public has swung solidly behind the House’s impeachment inquiry, the president ordered Gordon Sondland, the U.S. ambassador to the EU, not to testify before Congress. All this after a federal district judge—Victor Marrero, a 78-year-old native of Puerto Rico—on Monday ruled that Trump’s claim of blanket immunity in the face of a grand jury subpoena was “repugnant to the nation’s governmental structure and constitutional values.”
Marrero ordered that Trump’s accountants deliver eight years of his federal tax returns to the Manhattan District Attorney’s Office in response to a grand jury subpoena. Nancy Pelosi and Adam Schiff aren’t The Donald's only headaches: Manhattan District Attorney Cyrus Vance Jr., who appears determined to see this fight through after letting the Trumps off the hook before, is his newest nightmare.
A review of Judge Marrero’s decision reveals that American history was something to be ignored by Trump’s legal eagles. The fact that Richard Nixon and Bill Clinton were subject to criminal investigation mattered little to Trump, and that Nixon’s vice president, Spiro Agnew, was prosecuted while still in office was no big deal. Likewise, that Nixon had to turn over the infamous Watergate tapes didn’t seem to register. All that stuff was so not “modern presidential” and too inconvenient to be bothered with.
Rather, as the House of Trump saw things, a “domain” existed where “not only the President, but, derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law.” That sounds like the legal theory of a mob crime family.
Fortunately, the court was having none of it. Instead, Judge Marrero labeled Trump’s position one that the “Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated.”
At this moment, Trump must be experiencing a serious bout of Putin and Erdogan envy.
To be sure, this is not the first time Trump has tried to shroud himself in an invisibility cloak. Indeed, from the looks of things, Trump has a problem keeping his arguments coherent. According to William Consovoy, Trump’s lawyer, Congress is barred from investigating the president because that is a proper function of law enforcement, not Congress, and in turn, law enforcement may not investigate President Trump because he is immune from prosecution. Let that sink in.
Last spring, Consovoy told a different federal judge that Congress was powerless to hold the president’s feet to the fire, and that Watergate and Whitewater were examples of congressional overreach. As for a congressional oversight committee’s subpoena to Trump’s accountants, it was stepping over a line.
Who cares if the Constitution gives Congress pride of place and enumerates its powers in Article I? In Trumpworld numbers don’t matter unless Trump says they do, until he doesn’t.
Then and now, a court has rejected Trump’s arguments. As for Trump’s beef with Congress’ subpoena, we await an appellate decision. As for DA Vance’s investigation, within minutes of Trump’s latest loss, his lawyers had filed an emergency appeal with the Second Circuit. The song remains the same, yet this is all brand new terrain.
Prior presidents tussled with Congress and prosecutors, and claimed executive privilege, not wholesale immunity from scrutiny. In the end, they understood that America and the Constitution were far larger than them.
On Sunday night, Trump also branded Speaker Pelosi treasonous. We have seen this movie before. In Gladiator, Commodus jailed his opponents in the Senate. Suffice to say, we were not entertained.
Right now, the issue of whether a sitting president can be prosecuted in a state court is unanswered and unresolved. Vance isn’t Bill Barr, the current U.S. attorney general and the second coming of Roy Cohn.
Trump has reason to be scared. New York State is not bound by the internal Justice Department opinion that tied Robert Mueller’s hands. And Schiff has announced that Ambassador Sondland’s no-show would be considered an act of obstruction and that Sondland was withholding personal texts of interest.
Trump’s life just got even more complicated. Heavy is the head that wears the crown.