“President Trump is still liable for everything he did while he was in office. He didn’t get away with anything, yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” — Mitch McConnell, 13 February 2021, minutes after the Senate acquitted Donald Trump at his second impeachment trial.
Yesterday, when pressed by Kristen Welker, of NBC News, Senator McConnell (R-KY) said he stands by those words, but added, “I don’t make the rules. I don’t sit on the Supreme Court.”
Welker interviewed Senator McConnell as the Supreme Court was hearing oral arguments into whether former president Trump should be immune from prosecution for acts committed while he was President.
Trump’s lawyer, D. John Sauer, said the only time a President could be held criminally liable for those acts was following impeachment in the House and conviction in the Senate for high crimes and misdemeanors. Donald Trump was impeached, but not convicted. Therefore, he should have absolute immunity.
The three-hour Hearing was packed with “hypotheticals.” Justice Sonia Sotomayor borrowed a hypothetical from D.C. Circuit Court of Appeals Judge Florence Y. Pan and asked Sauer, “Could a president order SEAL Team 6 to assassinate a political rival?” Sauer’s response? It would depend on whether the ordered assassination was deemed to be an “official act,” which led to a deep dive into the difference between official and personal acts.
The Supreme Court has never ruled on the broad question of whether presidents have criminal immunity for their official actions, but it has held that presidents are absolutely immune from civil lawsuits related to their official acts (Nixon v. Fitzgerald, 457 U.S. 731 (1982)), in part to protect them against constant harassment and judicial scrutiny of their day-to-day decisions. The court has also held that presidents can be sued over their personal actions (Clinton v. Jones, 520 U.S. 681 (1997)).
Throughout the Hearing, covered by C-Span (audio, but no video), it became apparent the four Justices appointed by Democratic Presidents and the five appointed by Republicans were looking at this case through very different lenses. The Democratic appointees were interested in examining Trump’s claim for immunity. Presumably, that’s why they were all there. Republican appointees were interested in anything but that; they wanted to discuss what their decision would mean for history. Justice Neil Gorsuch called this a “decision for the ages,” and repeatedly said he did not want “to talk about this particular case,” because he was interested in what it would mean for imaginary presidents in the future. You know, the slippery slope argument.
But when they rule, the Justices will have to talk about this particular case.
Meanwhile, at the same moment the Justices were doing their best to count all the angels dancing on the head of a tiny pin, the man who had made the immunity claim was 231 miles to the north in a New York city courtroom listening to a former friend tell a jury about paying hush money to women with whom the immunity man had had sexual encounters.
David Pecker, the former friend and Philadelphia Enquirer publisher, testified at Trump’s trial in downtown Manhattan that the ex-president seemed unconcerned about how a story of his affair years earlier with Playboy model Karen McDougal would impact his family. Rather, it was all about how it would affect his campaign for president, which was why Pecker, instead of publishing a story about her time with Trump, agreed to pay the former girlfriend $150,000 to keep silent. And she did.
Then along came Stormy Daniels who wanted to sell a story about her very own Trump tryst to Pecker’s Philadelphia Enquirer. This time, Pecker balked at paying yet another woman for a bedroom story starring Donald Trump, so he told Trump’s “fixer,” Michael Cohen, Trump would have to make the payment himself, after which Pecker would kill the story. And that’s what happened. Cohen paid Daniels $130,000, and Trump reimbursed him. Then Trump and Cohen had to cover up the transaction with a pack of lies, which is what they did (nothing new there), and which is why candidate Donald Trump is currently off the campaign trail and forced to listen to people like David Pecker drag the one-time reality TV star’s disgusting baggage all over America.
The man who in the heat of the 2016 campaign boasted, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters,” is now betting that eight years later, nothing’s changed.
Personally, I would not take that bet.
