By Earl Ofari Hutchinson
Former President Donald Trump screamed that he would be arrested and prosecuted. That was before any charges were brought against him.
Law enforcement agencies everywhere took his shouts of eminent arrest seriously enough to order full-scale alerts in a number of cities. There was good reason.
Trump was again whipping up the mob to come to his defense in massive protests and disruptions. He continues to claim that he is the victim of vindictive, unsavory and politically vengeful Democrats and assorted enemies who want to take him down.
South Carolina Sen. Lindsey Graham some months earlier echoed the Trump line: “Most Republicans, including me, believe when it comes to Trump there is no law. It’s all about getting him. There is a double-standard when it comes to Trump.
“And I’ll say this: If there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle … there will be riots in the streets.”
Graham was justifiably criticized for seeming to call for riots if Trump were indicted. An unrepentant Graham didn’t back down. A few days later he told another interviewer, “What I tried to do was state the obvious.”
Graham’s full-throated, frontal defense of Trump was no surprise. Despite some occasional jabs at Trump, he had long been one of the most loyal of Trump’s water-carriers. Graham’s inflammatory and nonsensical “state the obvious” quip about riots underscored just how worried many of Trump’s loyalists were that there was a real possibility Trump could be hauled into a criminal court.
Trump’s fear about a charge finally being brought against him was real. There was a growing consensus among many legal experts, former prosecutors and many in the media that there was strong evidence Trump could be brought up on multiple charges as a result of his inflaming the Jan. 6, 2021 Capitol takeover — or that he had illegally tampered with the vote count in Georgia during the 2020 presidential contest. Or that he was guilty of illegal payoffs, bribery and lying in the Stormy Daniels fiasco in New York.
The other crimes Trump could be charged with were also frequently cited: obstruction of Congress, obstruction of justice and witness tampering. Those were just add-ons to the litany of sex, tax and business scam charges that were bandied about for years before the Jan. 6 debacle that could propel Trump into a criminal court.
Trump’s loud fallback argument has always been that he was immune from prosecution because, as president, the mantle of “executive privilege” was tightly wrapped around him. Trump first tossed out the executive shield line when Special Counsel Robert Mueller conducted a year-long investigation of Trump in 2017 and 2018 for alleged involvement in Russia’s tampering with the 2016 presidential elections. Trump dredged up the executive privilege defense again when the Select House Committee investigating the Jan. 6, 2021, attack on the U.S. Capitol requested that Trump turn over White House documents that could have shed more light on his role in the insurrection. Trump said in a statement before the start of the hearing that he would “fight the subpoenas, on executive privilege and other grounds, for the good of our country.”
Trump, while in the White House, had the greatest shield of all to insulate him from a possible indictment. That was precedent. No sitting president has ever been indicted simply because it would cause monumental political and legal havoc and paralyze the chief executive, and by extension the government.
That didn’t mean, however, it couldn’t happen; even traditions can be broken.
The Jan. 6 Capitol insurrection case and the pilfering of government documents were only the latest instances of criminal statutes that Trump could potentially be nailed on. At the time of the FBI raid on Mar-a-Lago, Trump faced dozens of investigations and lawsuits.
His prime ace card, as in all other cases, was to hide behind executive privilege, legal rulings, various court opinions and precedent, which barred prosecuting presidents for criminal acts. Trump sought to extend that high bar to a former president — himself.
Legal experts noted that a president who serves a four-year term would be absolved of any criminal acts if time ran out on a prosecution. A president who served two four-year terms would escape criminal liability for almost any crime committed before or during his first presidential term.
In the tax fraud case, this might have been a roadblock to New York prosecutors in bringing a case against Trump. But that potential handicap was taken off the table by the New York legislature.
In Feb. 2021 the Senate passed the “No Citizen is Above the Law Act.” Sen. Deputy Leader Michael Gianaris shepherded the bill through the legislature.
He left no doubt who the bill was aimed at, saying, “Any president who breaks the law should be held accountable without regard to the time they spend in office.”
There are two dangling questions in the Trump legal drama. If he is arrested, what now? And what does it mean for the nation? Time will tell.
Earl Ofari Hutchinson is an author and political analyst. He is the host of the weekly Earl Ofari Hutchinson Show on KPFK 90.7 FM Los Angeles and the Pacifica Network Saturdays at 9 a.m.