Donald Trump’s New Legal Reality

In Judiciary and Courts, Misleading Information On
- Updated

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Fear of indictment also seemed to animate Trump’s frenzied efforts to overturn the results of the election he so clearly lost. During a 46-minute Facebook video rant in December, Trump complained that “these same people that failed to get me in Washington have sent every piece of information to New York so that they can try to get me there” — a reference to state prosecutors who apparently have ramped up their investigation of his personal and corporate affairs.

A desperate fear of criminal indictment may even explain Trump’s willingness to break any number of laws to stay in office despite losing his reelection bid, democracy and the Constitution be damned. He considered unfathomable measures such as declaring martial law and having the military somehow “rerun” the election. He risked further potential criminal exposure with his appalling — and, unbeknown to him, taped — conversation with Georgia’s secretary of state, during which he threateningly demanded that the official “find” enough votes for him to win the state, and by pressuring a Georgia elections investigator to “find the fraud” that didn’t exist.

And then, as the clock wound down on his time in office, he committed the ultimate impeachable offense for a president: fomenting a violent attempted putsch at the Capitol to stop Congress from confirming President-elect Joe Biden’s electoral victory. Prosecutors and jurors may have to decide whether it’s also a crime.

Private citizen Trump stands stripped of the legal and practical protections against prosecution that he enjoyed during his tenure: constitutional immunity; a protective attorney general; a special counsel operating under self-imposed and external constraints; and the ability to invoke the presidency in litigation, even meritless litigation, to delay state prosecutors’ investigations. No longer will he be able to claim interference with his public duties, or to remove those who might allow damaging investigations to proceed.

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