Donald Trump’s lawyer appeared in court last week to explain an extraordinary new doctrine of presidential infallibility. Trump could, attorney William Consovoy argued before the Second Circuit’s court of appeals, murder someone and be unindictable while in office. Even in a crass echo chamber era shaped by reality TV, rant-radio and social media — an echo chamber in which shamelessness has somehow, for many, morphed into a political virtue — such a claim was breathtaking. On the C-SPAN audio, one could practically hear Judge Denny Chin’s double take, his intake of breath, as he tried to absorb the implications of this startling claim.
Now, while Consovoy was just making a philosophical point — essentially asserting an expansive theory of presidential legal immunity that this administration has tried to build from day one, and which is fully subscribed to by Attorney General Barr — there’s a worrying consistency on display here. Trump said during his campaign he could kill someone in full public view in the middle of Manhattan and not lose the support of his base. Now, facing the serious political price of impeachment, Trump is arguing that he operates entirely outside the law.
The implications are staggering: We know that Trump has told his border officials in the past to simply seize private land to build his wall and that he would, after the fact, pardon them. We know that he mulled over the idea of ordering the shooting of would-be immigrants. We know that he fetishizes the imprisonment of immigrant children. We know that during the presidential campaign he broached the idea of killing the families of terrorists. We know that he has repeatedly asked his advisers why the U.S. has nuclear weapons if it cannot use them — and has, at various times, including in speeches at the United Nations, threatened to “totally destroy” North Korea, and obliterate Iran, Afghanistan and Turkey.
We know he hopes to erase the principle of birthright citizenship, a constitutionally guaranteed right, via executive order. That he views the Emoluments clause of the constitution as “phony” and resents its ability to limit his profiteering off of high office. That he “jokes” about staying in office beyond the two-term limit mandated by the Twenty-Second Amendment. That he has contempt for the First Amendment and looks at critical media outlets as enemies of the people. That he has repeatedly tweeted inflammatory videos and GIFs, arguably inciting physical violence against the press and progressive political activists. That he congratulated Montana Congressman Greg Gianforte for his physical assault on a Guardian journalist. That he went out of his way to shield the Saudi leadership from being held to account for the gruesome murder of journalist and human rights advocate Jamal Khashoggi.
This week Trump signed an executive order setting up a presidential commission on violent crime, homelessness, addiction and mental illness. Given his track record, this is an ominous development: We know from his earlier statements on homelessness in California that he favors wholesale sweeps and the forced detention in federal facilities of the homeless, despite the fact that there’s a long trail of court rulings barring indiscriminate sweeps and detentions.
Meanwhile, Trump traveled to Chicago on Monday to address a gathering of police chiefs from around the country. The event was boycotted by the Chicago mayor and the head of the city’s police department — a stunning turn of events in a metropolis known for its brutal, racist law enforcement (perhaps most famously evidenced by the Jon Burge torture scandal, but continuing up through today). Now, even the violent Chicago Police Department doesn’t want to be publicly associated with Trump’s attacks on immigrants and his ongoing verbal assault against Chicago.
Inside the auditorium, Trump ramped up his rhetoric on violent crime, which, although a serious problem, is far less of a problem today than it was 10 or 20 or 30 years ago, as anyone who follows crime trends and data knows.
Here’s the rub: this most lawless of presidents doesn’t really care about the rule of law, but he does believe that if he can whip up racialized fears around crime and around drug use, he can, as did Nixon in 1972, mobilize a “silent majority” to support his re-election bid despite the welter of allegations around his own criminal behavior.
When Trump talks about tackling violent crime, addiction and homelessness, bear in mind his fulsome praise for Philippine president Rodrigo Duterte, who has unleashed death squads against drug users and sellers. Thousands have died as a result. Bear in mind, too, his embrace of Brazilian president Jair Bolsonaro, who has urged the country’s notoriously violent police to become even more violent in their efforts to sweep gangs, crime and drugs from city streets. Bolsonaro has said he would grant immunity to officers who shoot criminals, and has boasted that under his watch such criminals will “die like cockroaches” in the streets.
That this violence-driven president now has a legal team and an attorney general actively trying to convince courts that he is quite literally above the law ought to terrify all of us. Consovoy may present this all as simply hypothetical, but Trump himself has shown in his actions and his utterances that he literally believes he is bound by no laws or moral limits.
As the impeachment process closes in on Trump, it is entirely likely he will become ever more lawless and ever more ruthless in his desperate attempt to stay in power. His vicious doctrine of presidential infallibility must not be allowed to take root.
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