For both former President Donald Trump and the American people, Monday was a roller coaster of legal developments. One New York court ruled that Trump’s first criminal trial will commence April 15, while another New York court, summarily and without explanation, reduced from $464 million to $175 million the bond amount he must post to stave off New York Attorney General Letitia James from seizing his assets.
There is an unmistakable pattern that has emerged since Trump left office.
Notwithstanding the prospect of one of Trump’s four criminal prosecutions potentially starting in the weeks to come, there is an unmistakable pattern that has emerged since he left office. Many of our institutions of government seem to have decided that the rules, the laws and the Constitution apply differently to Trump than they apply to the rest of us.
Having spent decades at the Justice Department, I have some thoughts about this phenomenon, namely on what I see as the special treatment afforded Trump.
First, I’ve often sensed a hesitation — a reluctance, even — to take on the wealthy, the influential, the powerful, the well-connected, and in the case of Trump I see the same. Second, when those powerful people are in the political sphere, there is what I view as a hypersensitivity to the possibility of being accused of being partisan or of having some agenda beyond or separate from simply enforcing the laws of the land. Third, feds love their precedent, an appellate- court-approved legal blueprint to follow. Given that a former president has never been criminally prosecuted, this creates discomfort in even the most experienced prosecutors.
Fourth, federal prosecutors have an alarmingly high conviction rate. Why? Well, the feds, for the most part, have the ability to pick and choose the cases they pursue. When someone violates a federal law, the person almost always also violates a state law. Therefore, the feds have the luxury of declining to pursue a given crime, opting instead to “kick it to the states.”
And federal prosecutors hate to lose, which often means they will take only the sure winners (though, in reality, there is no such thing). This quixotic mix of factors and features often results in the DOJ finding ways to talk itself out of applying the laws equally against the rich and powerful. And Trump is the poster boy for special treatment.
Exhibit 1: Former Trump lawyer Michael Cohen was prosecuted by the feds for his role in the criminal hush money payment and falsification of business records scheme that is at the center of the New York case. Indeed, the DOJ trumpeted the successful prosecution in a press release, noting that Cohen pleaded guilty to, among other things, “caus(ing) $280,000 in payments to be made to silence two women who otherwise planned to speak publicly about their alleged affairs with a presidential candidate, thereby intending to influence the 2016 presidential election.” Cohen has steadfastly and credibly claimed that he made the payments at the direction of and for the benefit of Trump. Yet, after the feds famously labeled Trump “Individual -1” in connection with some of Cohen’s misdeeds, in February 2021, headlines screamed the lies of: “What of ‘Individual-1’? Feds’ Trump campaign case is ‘dead’.”
There has been no adequate explanation for why the feds went hard after Cohen, the smaller fish in the criminal scheme, and let Trump — the true beneficiary of the crime — avoid accountability entirely. It is a dramatic and disturbing example of an unequal application of our nation’s laws.
Exhibit 2: engaged in insurrection. Our current U.S. Supreme Court is notably populated by self-described “textualists” — justices who believe that they must apply the plain language of the Constitution when deciding cases.
The plain language of the Constitution provides that “no person shall . . . hold any office . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection.” That text plainly, clearly and unambiguously disqualifies adjudicated insurrectionist Trump from holding office in the future. Yet, the justices found a procedural workout enabling Trump to remain on state primary ballots. So much for textualism.
Exhibit 3: Trump claims U.S. presidents have absolute presidential immunity for all crimes against the American people committed while in office. Of course, the Constitution actually contradicts that claim. Specifically, the impeachment judgment clause instructs that even if a president is impeached, he “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.” In other words, even if impeached, a president can still be prosecuted for crimes committed while in office.
It remains possible that the Supreme Court could, in fact, rule that a president is above and beyond the reach of our nation’s criminal laws.
But regardless of a complete lack of textual support for Trump’s immunity claim, the Supreme Court opted to bring his federal prosecution in D.C. for trying to overturn the 2020 presidential election to a screeching halt, by taking the case for review and thus putting it on a leisurely pace that may end up pushing the trial date beyond the November election. And it remains possible that the Supreme Court could, in fact, rule that a president is above and beyond the reach of our nation’s criminal laws.
Exhibit 4: Although mixing jurisdictional apples and oranges here, the state appeals court in New York just did Trump an enormous solid. In a summary order devoid of explanation, analysis and legal authority, the court just reduced the amount of Trump’s bond in his civil fraud case from $464 million to $175 million. And this dramatic reduction came just days after Trump boasted in a social media post that he has “currently almost 500 million dollars of cash” on hand. It’s a complete mystery why the appeals court decided it did not want to tap Trump out financially.
There are many more examples of the federal government, in particular, refusing to hold Trump accountable for his misconduct: the bribery/extortion of Ukrainian President Volodymyr Zelenskyy, when Trump attempted to withhold congressionally allocated funds to Ukraine; multiple counts of potential felony obstruction of justice meticulously documented in Volume II of the Trump/Russia report — crimes that could have been charged the day Trump left office; the Trump administration’s responsibility for One thing we have learned in the age of Trump is that the institutions of our federal government are either unable or unwilling to apply the rules, the law and the Constitution to Trump as they would to the rest of us. Another thing has become clear: No one institution, no one prosecutor, no one criminal case will save our democracy from the likes of Trump.
Instead of the institutions of law, the onus is on voters to hold Trump accountable. It will take the American people getting to the polls in numbers too big to rig and too real to steal to recalibrate the institutions of government so that the rules, the laws and the Constitution are applied equally to all.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst.