What sets democracy apart from autocracy is that no citizen is above the law
A defining feature of a democracy that sets it sharply apart from autocracy is that no citizen is above the law. Donald Trump believes he enjoys unique impunity. U.S. Attorney-General Merrick Garland disagrees.
Despite years of attempts by public prosecutors and U.S. Congressional committees to bring Trump to justice and expose his alleged crimes, Trump has been a huge winner. Now, he is ramping up his tirades against his accusers as he enters ever more dangerous territory.
Who can bring Trump to justice?
Trump has set out to prove that all the combined powers of American law enforcement cannot bring him to justice. He rallies his huge base of loyal American supporters – perhaps more than 30 million people – declaring that the accusations and investigations by public prosecutors are pure politics, driven by Democrats.
Elon Musk has just opened the Twitter door to Trump and assuredly a Tweet hurricane will issue forth from Trump’s lair in Mar-a-Lago.
In January, the Republicans will take control of the House of Representatives and they will use their chairmanships of investigative committees to go after President Biden and all who seek to accuse Trump, including Attorney-General Garland. The politics of bringing Trump to court are going to be still hotter.
Serious criminal charges
Garland, sensitive to the current and likely prospective attacks, is seeking to shield himself and underscore the non-partisan approaches by the Justice Department by appointing a Special Counsel to lead two major investigations into Trump.
Garland would never have taken this step if he believed that the investigations so far should not lead to criminal charges against the former U.S. president.
The Special Counsel, Jack Smith, a veteran prosecutor brought back to Washington from a leading role at the International Criminal Court in The Hague, will ultimately have to present Garland with choices – drop the cases or indict Trump.
It may indeed take what The New York Times calls a “veteran public corruption and war-crimes prosecutor” to nail the former president.
Riots and charges
Both of the investigations under Smith’s control involve potential long-term prison if the accused is found guilty. First, the Justice Department has been investigating for more than 18 months the events that led to the January 6, 2021, riots at the U.S. Capitol and the violence that resulted. More than 940 people have already been charged.
The Congressional “January 6 Committee” will issue a final report soon that may call for charges to be brought by the Justice Department against Trump for inciting the riots and ignoring the violence that unfolded on that terrible afternoon.
Smith and Garland cannot ignore that finding, so adding to perceptions by Republicans that the Committee was no more than a vicious partisan group.
Risking national security
The second investigation involves Trump’s alleged thefts of hundreds of government documents, including top secret national security files, as he left the White House.
Trump says the papers are his – but there are no provisions in U.S. law that allow any former official, even a former president, to just stash government papers in his home without any official review.
In this case, some of the documents are in the highest national security category and this makes potential charges especially serious.
A possible scenario sees the Justice Department strive to enter a unique settlement with Trump under which he may pay some fines and agree not to run for public office again.
Trump would absolutely refuse such a deal. He thinks he can beat the prosecutors with all manner of strategies to run out the clock until, in his view, he is inaugurated as the next president. Then, he can give himself a pardon!
Trump faces a slew of other legal entanglements. In the state of Georgia, the public prosecutor may be close to bringing charges against cronies of Trump and perhaps Trump himself, for striving to pressure public officials after the November 2020 election to change the results and announce that Biden lost. Trump says this is a pure political circus.
In New York, the state’s attorney-general and the Manhattan district attorney are both seeking to nail the Trump Organization as a tax-evading, fraud-ridden enterprise.
Trump, of course, has loudly and frequently denounced the prosecutors. At the end of the day, his company may have to pay some fines, but he will probably escape unscathed.
Where’s the money?
None of the cases that are moving forward are likely to shed light on one of the greatest mysteries: The sources of Trump’s cash. Russian oligarchs, or Saudi princes, or others across the world whose international financial transactions are kept secret by using myriad networks of offshore holding companies from Cyprus to the British Virgin Islands?
Were Trump’s actions as president, from his overt friendships with Vladimir Putin to the leaders of the United Arab Emirates and Saudi Arabia related to his personal financial affairs?
We may never discover the truth – but it would be no surprise if Russian and Saudi money would secretly flow into Trump’s next presidential campaign.
Trump, who recently announced that he will run for president again, will use his status as a presidential candidate to strengthen his public campaign that all the investigations are pure politics – that the Democrats know that if he runs, then he will win in 2024.
So far, Trump’s strategy of in-your-face political diatribes and legal delay has been a resounding success.
The House of Representatives, controlled by the Democrats, has been trying for years to obtain Trump’s tax returns in the belief that their examination could expose major embarrassing issues.
Trump, seeking to delay matters, took his objections all the way to the Supreme Court which finally, this week, ruled against him. The judgment may be just too late for the Democrats: The Republicans take charge in early January and have vowed to end all investigations on this matter.
Securing political support
No former U.S. president has been investigated by so many and so thoroughly. Nor has any U.S. President been impeached twice by the U.S. House of Representatives.
But just as he mustered allies in the U.S. Senate to beat the impeachment charges, so he has recruited dozens of lawyers to run rings around public prosecutors.
At the same time, while some of Trump’s allies have sought in recent days to distance themselves from him, blaming him in part for the poor Republican showing in the mid-term U.S. elections, his political influence is formidable.
Everyone knows that Trump will be merciless in his attacks on any Republican that seeks to challenge him. In lengthy interviews on the publication of his book of memoirs, former Vice President Mike Pence has powerfully hit out against some of the people in top White House positions in Trump’s White House, but he has assiduously avoided any serious criticism of his old boss.
Now, as Trump plans political rallies across the country, as his political fund-raising machinery moves into high gear, as his public relations staff and lawyers hurl insults at Democrats, Biden and Merrick Garland, so the fundamental tenet of this American democracy hangs in the balance.
Will Trump demonstrate that even in this country there can be a citizen who is above the law?
*Frank Vogl is co-founder of Transparency International and author of “The Enablers – How the West Supports Kleptocrats and Corruption-Endangering Our Democracy”