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Saturday Q&A
Once again, we got many, many questions about the Trump federal case. And so, once again, we are going to make that our focus. Normal order will resume soon.
Current Events: The Trump Indictment
A.C. in Currituck, NC, asks: Did Merrick Garland make the choice to charge Donald Trump after Jack Smith made his report? Previously, you have written that this situation would be similar to the Mueller investigation, where he delivered his report to the AG and the AG would make the decision on whether to bring charges and prosecute. I haven't seen any reports in the media that this is the case, and it seems more like Smith is still in control of the case. I'm guessing that Garland must have had given his OK if the charges were filed, but it seems like a very different process this time around.
(V) & (Z) answer: The Mueller investigation was different in one big way, and perhaps one smaller way. The big way is that it happened while Trump was a sitting president. Since DoJ policy prohibits charging a sitting president with a crime, it would have taken a great deal of fortitude to bring immediate charges against him. In one fell swoop, the person doing so would have been sweeping aside a policy that has been in place for half a century and at the same time taking a step unprecedented in American history. There may be no AG in history with that kind of fortitude (maybe Robert F. Kennedy, Sr.). Certainly Bill Barr—who was then acting as Trump's de facto government fixer—wasn't going to pull that particular trigger.
The smaller way in which it was different is that Mueller, who appears to be generally more circumspect than Jack Smith, was running the show. Smith is a longtime prosecutor who is used to big-time cases. Mueller has prosecutorial experience, too, but he is also a law enforcement officer and de facto politician (you don't get to be FBI director without some politicking). Perhaps this experience, or perhaps his personality, made Mueller exceedingly cautious. If he had come right out and said that Trump should be indicted at the earliest opportunity, as opposed to just strongly hinting, it may have changed the dynamics of the situation.
As to the current indictment, nobody who knows for sure what happened is talking, at least not right now. Maybe one day, one or more insiders will write a book. But for now, all we've got is a guess. That said, we are very, very confident in this guess. Jack Smith undoubtedly decided Trump should be indicted, and sat down with Merrick Garland and took the AG through the evidence and through the decision to prosecute. Then, Garland approved Smith's decision. There is simply no way a decision this big would have been made without a review from the AG, and clearly that review produced a thumbs up, or there would have been no indictment. Once Garland gave his blessing, it was apropos for Smith to bring the case, since he's the actual prosecutor.
M.A. in Knoxville, TN, asks: Would Donald Trump Accept a Pardon From Joe Biden?
Accepting a pardon means admitting guilt to the offense(s) in question. I can't see Trump ever admitting he's guilty. After all, this is a man who sharpied in extra storm track for a hurricane to avoid admitting he was mistaken. Also, accepting a pardon from Biden, a Democrat and formerly vice president of the hated Barack Obama (hated because Obama told a few jokes at Trump's expense, and is Black), would be humiliating for Trump. And since he's managed to avoid consequences his whole life, in his mind he probably thinks he can beat all these cases easily, no pardon needed.(V) & (Z) answer: If Biden offered a pardon, Trump would accept it in a heartbeat.
First of all, accepting a pardon does not mean admitting guilt, at least not at this particular moment. In Burdick v. United States (1915), the Supreme Court's ruling offhandedly suggested that accepting a pardon carries "an imputation of guilt and acceptance of a confession of it." But that was not actually a finding of the case (which was about whether or not a pardon can be refused), and whether or not "pardon = guilty" was a subject of debate for many years.
Then, a U.S. soldier named Clint Lorance was convicted of murdering Afghan civilians and was later pardoned by Trump. Lorance wanted to accept the pardon (and thus cease paying the penalty for a murder conviction, namely imprisonment) but also wanted to be able to keep fighting to overturn his convictions and clear his record. In Lorance v. Commandant (2021), the Tenth Circuit ruled that was within his rights, and that therefore his acceptance of a pardon did not imply guilt. There has been no subsequent jurisprudence on this question, which means that's the current precedent, until such point as the Supreme Court steps in.
Beyond that, you can never overstate the ability of Trump and his followers to resolve cognitive dissonance: "Joe Biden has offered me a pardon because he knows this is a witch hunt, and that if the matter is not dropped, his corruption will be revealed for all to see. I have accepted because I am a much nicer man than he is, and I am also a patriot who wants to bring the country together, and not divide it the way the Democrats do. Once I am elected president, I will make it my first order of business to stop the Democrats from weaponizing the Department of Justice against Republicans ever again."
M.W. in Springfield, IL, asks: With the current crop of Know-Nothings trying to pretend what is happening to TFG is completely uncharted territory, I have been doing some reading up on Eugene Debs, particularly when he ran for president from prison in 1920. Could you explain any major similarities or dissimilarities between Wilson jailing a political rival and the current potential crisis?
(V) & (Z) answer: The law that Debs broke was the Sedition Act of 1918, passed overwhelmingly by Congress to forcibly unify Americans behind the U.S. effort in World War I. One can question the legitimacy of that law, and many have (and Congress quickly repealed it after the war was over). But Debs most certainly broke that law with his anti-war and anti-Wilson speeches, knew he was doing so, and expected to go to prison and become a cause célèbre. And the plan worked.
The laws that Donald Trump allegedly broke are much longer standing than the one Debs broke, and the purpose of those laws is not to stifle dissent but to protect America's national security. Trump may be a political opponent of Biden, but Trump's legal troubles have absolutely nothing to do with anti-Biden criticism or actions. By all appearances, Trump broke several laws, knew he was doing so, and expected to get away with it. He wasn't making a political statement (though claiming that he was might actually be a better defense than what he apparently plans to go with).
In short, other than both men being a target of a federal prosecution for breaking laws they knew full well they were breaking, the two situations aren't especially similar.
K.E. in Newport, RI, asks: Alan Dershowitz, who taught at Harvard Law School for almost 50 years, and famously helped earn an acquittal of murder charges for O.J. Simpson through jury nullification, appeared on Sean Hannity's show last week. He is clearly a very skilled and accomplished lawyer. However, during that appearance he said some things I find very alarming that, if taken to their logical conclusion, would make it almost impossible for law enforcement to investigate a (former) president for anything. Most obviously: "A president doesn't have to cooperate with people he believes are trying to get him."
What do you think of that statement? A president doesn't have to cooperate with law enforcement merely on the basis of an unproven belief (not a court ruling) that the investigation is biased and unfair? Is there any basis for this statement in the Constitution, statutory law or common law? The Fifth Amendment is supposed to protect people against being forced to testify against themselves, but I've never seen it used as a justification for obstruction of justice. If this kind of legal analysis was being taught at a school like Harvard, I worry about the future of the profession.(V) & (Z) answer: Dershowitz is in the midst of an apparent final chapter to his career that is characterized by legal arguments of extremely dubious merit. And it's not just us (two non-lawyers) who think so; he's been widely criticized by legal experts for his questionable thinking. Clearly, the argument he's making here is patent nonsense.
What's going on with him? We can only speculate. One possibility is that while he's a liberal on social matters, he's a hardcore libertarian on other issues. A second possibility is that he likes attention, and likes being invited on all these cable news shows, and so is playing some sort of devil's advocate. A third possibility is that, in the middle of his ninth decade on the planet, the cheese is slipping off the cracker.
V.G.D. in Perrysburg, OH, asks: Rep. Jim Jordan (R-OH) is certainly not known for his objective or well-articulated reasoning, but in a recent interview with CNN's Dana Bash, he cited Department of the Navy v. Egan (1988) in exonerating Trump in relation to his recent federal indictment. After an admittedly somewhat superficial reading of the case, I don't see much connection. Would you or any of your readers be able to make more sense out of Jordan's words, or should they be dismissed as those of another of Trump's blind supporters (except that he should know better by virtue of the position he holds and the oath he must have taken as U.S. Representative from Ohio)?
(V) & (Z) answer: We're going to start here with something that applies to this answer and to the next one. In the past few weeks, we've talked about the E-V.com rule, which is that pithy observations gain greater credibility if they are put in the mouth of a person admired for their insight and wisdom, people like Abraham Lincoln Winston Churchill and Mark Twain. Well, one corollary of that is that a pseudo-legal defense sounds better if a person cites some official-sounding basis for it—a court case, a law, an important essay, etc. Most of the audience for such pseudo-defenses isn't going to bother to look into the claims being made, and those who do may not fully grasp what they are reading, beyond "yep, this definitely has something to do with [whatever relevant subject]."
Department of the Navy v. Egan was about a civilian employee of the Navy, Thomas Egan, who lost his job because his application for a security clearance was rejected. Egan filed a protest, and after a bunch of twists and turns, the Supreme Court said he had no case, and that the executive branch has very broad authority when it comes to personnel and national security matters. Since there's relatively little jurisprudence on this general subject, this case has been broadly deployed to support all manner of executive branch powers when it comes to classified information.
If anything, the case actually undermines Trump's argument, since it established that civilians (a group that includes ex-presidents) have no rights to classified information without approval from the executive branch. If Jordan wants to argue that Egan actually granted broad powers to Trump as a president when it came to the handling of classified information, that is a defensible position. But those broad powers ended the moment Trump was no longer president, and so Egan offers no defense against the current charges.
E.F. in Baltimore, MD, asks: I was listening to Mark Levin on his radio show. He likes to play the role of an incredibly smart lawyer, but it's still the same old right-wing disinformation act, served with a heaping helping of anger. I'm sure it pays the bills.
Now, along with a huge portion of whataboutism, his main argument is that the Presidential Records Act (PRA) totally absolves Trump of any wrongdoing under the Espionage Act. Looking at the PRA, I can't see how it applies here. Am I missing something, or is Levin just trying to muddy the waters?(V) & (Z) answer: You're not missing anything.
The PRA makes clear that all records produced by a sitting president (and vice president) are the property of the federal government, specifically NARA. However, a sitting president (and vice president) also have to have control over their own paperwork while they are on the job. And so, while every memo and report and letter belong to NARA, the sitting president and VP act as gatekeepers and are allowed to decide who can and cannot have access to their paperwork.
The moment that a presidential term ends, the gatekeeper responsibility passes to NARA. As of January 20, 2021, at 12:01 p.m., if Trump wanted to review a copy of a memo sent to him by Mike Pence on 1/6, he was technically required to ask NARA for permission to view that document. As you can imagine, NARA is reasonable, and recognizes that it's not so easy to flip a switch like that. So, the agency is pretty forgiving when a former president or VP technically breaks the law, as long as the matter is rectified as soon as it is discovered. NARA will even reach out to a former president or VP and say "Hey! We're missing X, Y and Z. Please find them immediately and return them." Donald Trump was extended this courtesy, of course, and did not get into hot water until he not only refused to return the requested documents, but lied about having them.
Trump is planning to argue that he actually had a 2-year window before NARA became the gatekeeper of the documents. We know this because one of his attorneys, Tim Parlatore, has already brought it up in interviews with Fox and CNN. There is no statutory or other basis for this assertion. Further, if this is what Trump really believed to be the case, then he should have filed for an injunction when NARA asked for the records to be returned, claiming he was still within his 2-year window. Lying and trying to hide the documents is not at all consistent with the argument Parlatore is making.
C.J.P. in Los Angeles, CA, asks: In rantings after his indictment, Trump said that a president controls his documents under the Presidential Records Act. Of course, we all know that this control goes away when a sitting president becomes the former president. Do you think that Trump will try to make the case at trial that he the presidency was stolen from him and that he is still the rightful president?
(V) & (Z) answer: He won't if his attorneys have their way. He's had his day in court when it comes to the allegedly stolen election and he lost. Trying to relitigate that here would not constitute a valid defense, would be shut down by the judge, and would serve to communicate to the jury that Trump is off his rocker.
G.W. in Oxnard, CA, asks: I listened to Sen. Lindsey Graham (R-SC) evade every question about the Trump documents indictment on a Sunday morning talk show with whataboutism. It seems that is Trump's only defense. Is any whataboutism admissible in court?
(V) & (Z) answer: During the proceedings, and in particular during the penalty phase (if there is one), both the prosecution and the defense will point to past cases in support of their positions. This is a form of whataboutism, we would say.
On the other hand, talking about situations where the defendant thinks someone should have been punished but wasn't is irrelevant and won't be allowed. In other words, "but her e-mails" might pass muster on Fox, but it won't fly in court.
M.C. in Fresno, CA, asks: What are the chances that the federal courts will amend the rules to allow cameras in court for Trump's trial? It seems like the case could be made that it is so important to the country that cameras should be there so we can all know what happened during the trial. Without that, I worry Trump will just lie about everything that happened and there will be no video to counter his lies.
(V) & (Z) answer: Federal rules don't allow for live broadcast of court proceedings, but they do allow for videos to be made for record-keeping purposes. Given the significance of the proceedings, and the likelihood of appeals, we suspect the judge will permit a video record to be made. A live broadcast is very unlikely, especially since Aileen Cannon is not empowered to rewrite the rules of the federal Judicial Conference.
K.M. in Sydney, NSW, Australia, asks: You wrote, of Aileen Cannon: "She still could recuse, of course, or she could be nudged (or ordered) off the case by one of her superior judges."
What is the likelihood of either, in your view?(V) & (Z) answer: Well, as we wrote in that post, she does not seem like the type to step aside and let some other judge have all the attention. And her actions are not consistent with someone planning to recuse. So, we don't think a voluntary recusal is in the cards.
That said, we suspect Chief Judge of the District of Southern Florida Cecilia M. Altonaga has had a chat with Cannon, one that included a reminder of Cannon's responsibilities as a federal jurist. And we have no doubt that Jack Smith is ready to ask the Eleventh Circuit to order a new judge if Cannon appears to have her finger on the scale for Trump.
A.K. in Tacoma, WA, asks: If I were Donald Trump and his people, I would get word to Aileen Cannon, through whatever back channels they undoubtedly have, that if she finds a way to get him out of this case (through dismissal or whatever), then there would be a Supreme Court spot in her future. After all, if Trump beats this rap and wins the election, he's going to be untouchable. Furthermore, it will likely mean a red wave occurred, or at least that the Senate is split 50-50. Any confirmation will sail through hearings. Plus, you've written before that there's no rule about there only being nine justices. On his first day in office, Trump could pardon himself and then nominate Cannon to the Court. The GOP would be ecstatic to increase their majority and would be too afraid of Trump and his supporters to speak out against it.
(V) & (Z) answer: To start, what we have written is that there is nothing in the Constitution about there only being nine judges. There is, however, the Judiciary Act of 1863, which by law sets the total at nine. So, creating a slot for Cannon would either require a sitting justice to retire, or would require Congress to pass a new Judiciary Act. Will the Republicans control both houses? And will they be willing to push through a change to the law and an appointment undertaken with such corrupt intent? Very doubtful. Mitch McConnell (R-KY) is certainly willing to play dirty, but due to fear of payback, he has his limits. This is why, for example, the filibuster still exists.
Moving along, if Trump and/or his people were to make such an offer, they better be sure Cannon is 100% in the bag for him. Because if not, offering a quid pro quo of this sort is a federal crime.
As to Cannon, even if she was amenable to such an arrangement, she'd be making a very big gamble. For it to work out for her, Trump would have to win the election, an opening on the Court would have to come available one way or another, and then Trump would have to abide by his agreement. Each of these things is something of a longshot, and the chances of all three happening are not great. On top of that, Cannon would also be guilty of a crime if she made the deal. And last we checked, Trump and his minions are not great at covering up their crimes, while several of them have shown a willingness to sing like a canary when the authorities put the squeeze on them. In short, in exchange for a relatively long shot at a SCOTUS seat, Cannon would be assuming a serious risk of being impeached and/or imprisoned.
M.B. in Chicago, IL, asks: I did my evening New York Times soporific and noted Judge Cannon has ordered Trump's defense attorneys to obtain security clearances for the pending litigation. Can President Biden order such clearances to be issued? It would be a gentlemanly gesture and help justice run its course.
(V) & (Z) answer: Yes, Biden can do it. There is also zero chance he will do so.
The first problem is that Biden doesn't want to touch this case, in any way, with a 10-foot pole. He's already being savaged by right-wingers who claim that he's pulling the strings in order to punish a political rival. If the President were to announce "I'm handing out security clearances like candy so we can speed this thing up," that would feed right into that argument.
The second problem is that Biden has a duty to protect national security. He can't know if one (or more) of Trump's lawyers have a gambling debt that might be exploited, or are Russian agents, or have a propensity to get drunk and run their mouths. The vetting process exists make sure that individuals with these and other potential weaknesses are not given access to the nation's secrets. And frankly, if anyone is likely to have lawyers who are already Russian agents, it's Donald Trump.
R.H.D. in Webster, NY, asks: How likely can we see the Mar-a-Lago case make it all the way to the Supreme Court? I'm particularly interested in how the three Trump appointees would rule.
(V) & (Z) answer: To start, note that when an appeal is filed, it doesn't mean "OK, we're going to have another whole trial, and the defendant can try again." No, appeals only deal with specific legal questions that one side or the other thinks were decided incorrectly. For example, if the judge rules that a particular piece of evidence is admissible, and Trump is subsequently found guilty, Trump's attorneys could go to the appeals court and argue that the evidence should not have been admitted and, but for that, he would not have been found guilty. Sometimes, the appeals court will throw out a conviction and order a new trial. But it's not very common, since pretty much every defendant who loses at trial tries multiple Hail Marys like this.
Since there are some very unusual issues involved in this case, some where there is no real precedent, it's entirely possible that certain questions might reach SCOTUS, either during the trial or after. It depends very heavily on what defenses Trump tries to raise. And SCOTUS may or may not decide to get involved. But whatever happens, the Supremes won't re-hear the whole case, because that's not how it works.
We'll note one last thing: There is zero indication that any of the three Supremes appointed by Trump feel any particular loyalty to him. Certainly, they did not rule for him in the various election-related cases. In fact, if they want to show the country that they are not in the bag for him, ruling against him on such a high-profile case would do the job without interfering with their real agenda: helping the conservative movement.
M.G. in Newtown, PA, asks: You've often written about President Trump's difficulties in retaining counsel for various reasons, one of which is stiffing his lawyers on their fees. If he found himself in a situation where no one would take his case, would he be entitled to the services of a public defender?
(V) & (Z) answer: Not exactly. Public defenders are for criminal defendants who cannot otherwise afford counsel. Trump clearly can, so he would not be entitled to that service.
If it really came down to it, the judge would order an attorney, almost certainly one in private practice, to take the case (though Trump would surely be ordered to pay them). It is supremely unlikely that it would ever come to this, however. First, because Trump already has counsel. The Sixth Amendment entitles defendants to at least one lawyer, not to a legal team. Second, because criminal defense attorneys reconcile themselves to the view that everyone is entitled to a vigorous defense, and do not generally discriminate against "distasteful" clients. Third, because Trump has enough experience with the legal system to know that an attorney he has hired will work harder than one who was forced to work for him.
A.F. in Seattle, WA, asks: Trump is currently fighting a war to keep himself out of prison on at least two fronts (New York and Florida) with one or two more likely to come (certainly Georgia, for election interference, and presumably D.C., for insurrection). Plus, he's on the hook for defaming E. Jean Carroll immediately after losing a civil trial for defaming her previously. My question is, when all is said and done, what kind of price tag is Trump looking at for all this legal work? And, is he going to be able to funnel donor money towards his legal expenses?
(V) & (Z) answer: To start, we will point out that he is very unlikely to face prison time in New York. Even if he's convicted, he's a first-time offender, and white-collar crimes tend to be punished less harshly than blue-collar crimes.
As to Trump's legal bills, they will be in the millions for sure, and probably in the tens of millions. In 2021 and 2021, his PAC paid $16 million in legal costs on his behalf, and in those years he wasn't facing something like half a dozen criminal cases.
And while Trump isn't exactly great at following rules, and so might flout the law (again), the fact that he's an official presidential candidate means that it's going to be pretty tough for him to get others to pay his legal fees. He can't coordinate with his PAC anymore, so he can't just have the PAC write checks as needed. He can argue this is a political matter, and thus a campaign expense, but if he bills the campaign, then each benefactor can only contribute $3,500 to the defense fund, and that would be it until such time that Trump becomes the Republican presidential nominee (assuming he does). A third option is to do what Bill Clinton did, and establish a trust to which people can donate. The limit there is $10,000 per year per donor. However, it's not clear that the trust option is legal while a campaign is underway (Clinton's was established after he had been reelected).
H.B. in State College, PA, asks: It seems inconceivable to me that, should he be convicted of any of his various crimes, TFG would submit to incarceration. He will surely attempt to flee the country, to a suitable location that lacks an extradition treaty with the U.S. He has been allowed to retain his passport, and he has his own jet airplane. Are there any legal or practical impediments that would prevent his otherwise inevitable flight from justice?
(V) & (Z) answer: There are several. The first is that, as a high profile person with a Secret Service detail, it wouldn't be all that easy for him to slip away. The second is that the government would freeze his domestic assets. He has some foreign assets, like a golf club in Scotland, but the U.S. could ask the leaders of countries where he has assets to freeze those, which some of them might do. He could end up close to broke (think Arrested Development). The third is that he could never return, and would be permanently beholden to whatever foreign leader or government granted him asylum.
R.C. in Winter Haven, FL, asks: During last week's Q&A, you had a number of answers that referenced different confinement scenarios, including house arrest at Mar-A-Lago, Federal Prison Camp at Pensacola, and Jacksonville Naval Air Station.
I know this is uncharted territory, but what would Trump's confinement look like? Orange jumpsuit? Barbed-wire fences? Media access? Cell phone access? As a former President would he be allowed unlimited visitation?
I'm curious whether he would be able to influence anything while being confined or what limitations might be imposed, especially if he is still a candidate at the time of his confinement.(V) & (Z) answer: No former president has ever been imprisoned, of course, so there is no definitive answer. However, former governors and members of Congress have been, as have people running for president. And being an extremely high-profile political figure entitles a person to... no special treatment whatsoever.
So, if Trump is convicted and sentenced to actual prison, then they would probably send him to a low-security Club Fed. That would mean prison uniform, no barbed wire, limited media access (he could grant a few interviews), no cell phone, and limited visitation. He'd also have to get a job, most likely.
If he's sentenced to house arrest, then he'd be living pretty much as he does right now, except without freedom of movement. However, "no freedom of movement" means the person has to stay within a fairly small geographic area, usually something like a circle with a 150-foot radius. If that were the case here, golf would be out of the question.
O.Z.H. in Dubai, UAE, asks: Is it possible that it might be better if there is no judgment in The United States v. Trump until after the election? As you have noted, with Judge Aileen Cannon and the chance of a renegade juror getting on the jury, there is a fairly good chance that there will be a hung jury, which Trump will spin as 100% exoneration. It seems like this would help him in the election more than a conviction would hurt him. Any thoughts on that?
(V) & (Z) answer: In general, more information is better than less when it comes to voting. And so, we think it best that the American people know, as they consider their votes, if: (1) Trump is a criminal, or (2) Trump was guilty enough that [X] number of jurors were convinced of his wrongdoing, or (3) the case against him did not stick.
J.E. in Brooklyn, NY, asks: I thought it was so interesting that your answer to the question posed by D.P. in Pittsburgh clashes with this Politico opinion piece by Renato Mariotti. It's like night and day, yet you're interpreting the same information. I'm curious to know if Mariotti's perspective inspire you to walk it back a bit, or double down. (Personally, I agree with your assessment, and feel like the DoJ is ready to wrap things up and not drag them out and Mariotti's succumbing to safe conventional wisdom.)
(V) & (Z) answer: We've written a fair bit, in the last few weeks, about the merits of various Civil War generals. And one of the most important things that separated the good ones from the bad ones was the extent to which that general appreciated the political dimensions of the war, and that the world had entered an era where "war is politics by other means."
Mariotti is speaking as an experienced prosecutor, one who knows a lot about how the legal system works. We are speaking as people who think and write about politics. And we feel strongly that the political considerations here are going to drive this forward at a much faster pace than would usually be the case. So while we were interested to read Mariotti's opinion, it does not change our views at all.
J.C. in Lockport, IL, asks: I'm of the opinion that Donald Trump walking on these charges might be better for the health of the republic. The left would come out in unprecedented numbers to reject him and we'd finally be rid of him. Which scenario do you feel would be better for the long term health of the country?
(V) & (Z) answer: There is a pretty clear precedent, at the moment, that a president can do whatever they want and they won't pay any real price, even if caught. Trump learned this lesson from Richard Nixon (and Bill Clinton, and George W. Bush), and we'll have an item next week about how Gov. Ron DeSantis (R-FL) has learned it as well.
This precedent needs to be changed, and pronto. Because if not, then one day, not too far off, the country is going to end up with a president who is both competent and utterly lawless. And that will be very, very bad.
A.B. in Plano, TX, asks: Doesn't it seem oddly ironic and/or hypocritical that today's GOP passes laws that forbid a felon from voting in elections, even after they have served their debt to society, but then turn around and (at least some in the GQP) would be quite happy to have a felon elected to the White House?
There is no constitutional stipulation or subsequent law to prevent that—I'm sure that the Founding Fathers thought that traits of honor and dignity would be a given in the makeup of future leaders, and so never considered the need to stipulate such a restriction. But then came Donald Trump.
Could Congress pass such a law? Wouldn't the debate and subsequent vote be a ratings winner on CSPAN? One would think having members on the record voting against a measure to disallow felons to be elected president would cause some squirming... and great campaign ads!(V) & (Z) answer: Hypocritical? Yes. Ironic? Not so much. American felons are disproportionately brown. Not so surprising that a party interested in limiting the minority vote wants to keep felons from voting, debt repaid or not.
As to the Founding Fathers, they actually thought the firewall against a sleazeball becoming president was the Electoral College. The idea here was that the people would pick wise and knowledgeable electors who would make good choices. They were not counting on a human Excel spreadsheet where you plug in the numbers and out comes a president with no wisdom required.
As to Congress passing a "no felons can be president" law, the problem is that right-wingers across the nation are claiming the Democrats are using the political system to persecute Trump. If the blue team were to propose a new law clearly aimed at Trump, it would feed right into that argument. So, it isn't happening unless it comes from Republicans who decide they want to rid themselves of Trump.
G.W. in Eden Prairie, MN, asks: Regarding the Republican support for Trump in the recent polling, what do you think about the theory that too many ordinary Republicans have lost the ability to acknowledge the truth about Trump because it would be too psychologically humiliating, and would also put them in very real jeopardy with their friends, family, neighbors, coworkers, etc.?
(V) & (Z) answer: We think it unlikely there are people out there who worry that if they turn on Trump, their friends and family will beat them up, shoot them, etc.
That said, human beings generally have trouble admitting when they are wrong. It's even harder when they are really wrong. And the cognitive response, when presented with evidence of error, is generally to twist and turn and flip and flop to try to maintain the original belief (e.g., "Trump is great!") and to resolve the cognitive dissonance. Since the Trumpers were living in an alternative reality from the start (e.g., Trump is a very successful businessman, Trump is a man of the people who understands and cares about working-class people, Trump is a Christian), it's not too hard for them to find acceptable "evidence" that allows them to maintain their beliefs about him.
E.R. in Colorado Springs, CO, asks: Based on various comments from you, it appears you subscribe to the prevailing political wisdom that this classified documents indictment—especially should it lead to actual conviction—will finally, once-and-for-all, eat away at Donald Trump's support. As one recent example, you wrote: "There could well be a difference between how Republican primary voters see it and how independents—who get to vote in the general election—see it. Also, an indictment is one thing. A trial, with lots of evidence presented, potentially followed by a conviction, is something quite different."
My question is: What evidence is there to support this view? Although that is certainly a reasonable conclusion based on every other political figure in history, hasn't our experience with Trump suggested this is not how things will play out? Nothing ever reduces his support. There is no amount of evidence or reason that can permeate the cult mindset. All of the scandals, all of the lying, all of the grift—everything is already baked in across the electorate. Trump could, in fact, shoot someone on Fifth Avenue, and it just wouldn't matter. And counting on independents seems an odd argument from a site that has often noted that independents don't truly exist in general, and even less so in the case of Trump. What am I missing?(V) & (Z) answer: Some, and probably most, Trumpers will be with him no matter what. However, there have also been Trumpers who reached their breaking point, for one reason or another, and said "enough." Think, for example, former representatives Liz Cheney and Adam Kinzinger. And while those are famous examples, there are also rank-and-file Trumpers who jumped ship. It's not a massive number, but Trump's path to victory operates on very narrow margins, indeed.
On top of that, elections these days are often less about persuadable voters and more about turnout. If Trump is a convict, that is likely to drive anti-Trump voters to the polls who might otherwise stay home. It might also cause Trump voters to stay home—not willing to vote for Joe Biden, but not willing to put a convict in the White House.
There's not a lot of evidence for our point of view because we're in uncharted waters at the moment. However, in 2016, when Trump was still something of a cipher, 48.2% of the vote went to Hillary Clinton. In 2020, once Trump had a long record of not-so-great behavior, 51.3% of the vote went to Joe Biden. That certainly suggests that misdeeds by Trump move the needle a little. And a little is more than Trump can afford to surrender.
D.S. in Newark, OH, asks: If Donald Trump secures enough delegates to win the Republican nomination, but is convicted of a crime before the Republican convention, could the Republican Party bigwigs declare an open convention?
(V) & (Z) answer: Yes. First, the RNC is better set up to change its rules on the fly than the DNC. Second, if the choice is "change the rules or else guarantee the other party wins the election," you will see the RNC stand on its head to change the rules, by-laws be damned.
Some delegates would still honor state laws that require them to vote for the candidate to whom they are bound for [X] number of rounds of voting. But the RNC absolutely could switch candidates if the pooh-bahs think it's their only hope.
Reader Question of the Week
The reader question of the week last week was about jury duty, and we are running those during the regular week. And it took enough time to put together this post that we don't have time to put together more doppelgängers. But both things should return next week. Here is the question for next week:
M.M. in San Diego, CA, asks: Why do so many conservatives—who typically support law and order, tough-on-crime policies—have such a blind spot when it comes to Donald Trump and white-collar crime?
Submit your answers here!
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