GELFAND’S WORLD - Max "the ice pick" Schultz today announced from his jail cell that he is running to be President of the United States. He has instructed a number of his closest "business associates" ("That's what I calls them," he said) to create the requisite committee and to file the paperwork in Iowa and New Hampshire, attesting that he is a native born American citizen of at least 35 years of age.
"They can't put a presidential candidate on trial" explained Schultz, referring to the claim coming from Donald Trump and mirrored by other Republicans. "There are like forty-five million Americans who support this rule," said Schultz, and if Trump gets elected, I expects him to uphold the rule for me, just like I will hold it up for him if I get elected."
The fact that Schultz is accused of state level crimes rather than federal didn't phase him. "If it's good enough for Donald, it's good enough for me." And the expression he used, that he will hold up the rule himself, actually addresses at least some of the crimes he was to be tried on.
When asked why he was entering the Republican primaries instead of the Democratic contests, Schultz explained that the Republicans are the group who are most supportive of this principle. The fact that he steals from the rich to give to himself seems more Robin Hood like, and therefore closer to Democratic Party principles. This had occurred to him, but he figured that he didn't want to take chances. "I'll go with Donald on this one, because he has defended it the best, and Lord knows I need a good defense."
OK, you get the point. But just for fun, let's quote one online wag who said it tersely: "No officer, you can't give me a speeding ticket, because I'm a presidential candidate."
Let's consider the issue in a slightly more academic way. The principle that you don't bring a criminal indictment against a sitting president goes back at least to Richard Nixon and the Watergate affair. Remember that Nixon was involved in the coverup of a burglary. (It seems strange at this point to put it in those words, but he really was.) The Justice Department avoided doing a criminal indictment at that moment -- the logic, I think, was that it was the practical thing to do, since the Constitution already sets forth a specific process to remove a president by impeachment and trial by the United States Senate. The Justice Department could wait for impeachment to play through, and then do whatever it had to do.
In practice, the new president pardoned Nixon, and that put an end to all federal prosecution.
But now we are told that the "principle" in question has to be extended even further.
We have Trump claiming that being between presidencies gives equal immunity from prosecution as being the actual president. I don't think the two things have anything to do with each other. You and I are both pre-presidency. One of us might become president. It's unlikely, but a possibility. If we file as candidates, does this make us immune to prosecution? I think we can all answer that question.
But Trump now raises an additional argument which is almost reasonable. He says that the prosecutions are intended to interfere with an election, that being his run to be president.
If this were, indeed, a corrupt prosecution in which members of the current administration are trying to affect the outcome of the 2024 presidential election without a legitimate criminal case to go on, the point would be well taken. So now we have a carefully coached Donald Trump arguing that the whole set of prosecutions are entirely without merit, and entirely aimed at interfering with his ability to run for reelection.
But that is where the entire process of criminal justice, in particular the factual basis of the charges, has to be involved. Is there an overwhelming factual basis to bring charges? The quick answer is that those boxes of secret documents make for that overwhelming case. Anybody else taking home one of those documents would already be in jail, and being held without bail. Trump wants us to think of the prosecution as election interference. The criminal justice system should be thinking of the prosecution as business as usual.
No, the simple fact of candidacy should not immunize any person from criminal prosecution. If the trial goes on through the campaign season, so be it. As one prosecutor explained to me, the people have a right to be heard.
Traditions that have been overinterpreted
Let's consider the basis for the "principle" that we don't indict a sitting president. The idea that a president should not be charged and tried while in office is created for the convenience and security of the country, not for the convenience of the sitting president. We need a president at all times, and if the situation is serious enough, we have the impeachment process and even the 25th Amendment to save the country from a rogue. But there is no principle in the Constitution or in other law that says that a president is above the law at all times. That lack of immunity certainly includes when he is no longer the president.
It's true that prosecutors tend to hold off against stirring things up during campaign season. But we should also remember that this principle has limits of its own. It is not a carte blanc for any politician to engage in fraud or to engage in serious crimes against national security, or to try on his own to steal an election. Notice that the first two items have already been covered in the first 71 felony counts, and the attempted obstruction of an election may well be coming to indictment in Georgia in the next few weeks.
The balance between law enforcement messing with an election and the use of the criminal indictment to charge for serious crimes depends on the balance of the evidence and the nature of the crime. In the case of People vs. Donald J Trump, the situation is clear and damning.
The obligate conclusion is that the trials of Donald J Trump for violation of the Espionage Act, for fraud, and for obstruction of justice should proceed in the regular order of the court system, whatever other political rituals and electoral campaigns happen to be going on at the same time.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])