Why the Trump Org Criminal Charges May Open the Indictment Flood Gates: A Matter of Precedent

by Glenn Kirschner, and Justice Matters

[ Editor’s Note: The Biden Department of Justice is facing having to go where no man has gone before, prosecuting an Ex-President. The first big hurdle to overcome would be the argument that prosecutors are weaned on having precedent as the foundation of their cases to avoid future reversals.

Glenn says Biden’s team will have to set that precedent, and frankly I cannot imagine a better opportunity to do so than with Mr. Trump. He is a walking talking motherload of felonies, whose life up to this point has taught him that if you have lawyers like Roy Cohn at your side, getting prosecuted successfully is rare.



But losing such a case could set a precedent for future crooked presidents to take advantage of, and have even more concern over appointing the ‘right kind’ of judges to the big court.

Merritt Garland has the biggest challenge of his career facing him. He could wait to see if NY Court State courts can get the ball rolling for him with a conviction there, but those involve crimes before he was president, but the Trump election fraud cases where he was the perpetrator, they can’t wait.

The tricky part for crimes while he was in office will be in these magical words, “in the performance of his duties”, as with his insurrection attempt. He will claim he was in good faith pursuing election fraud, and even if the courts ruled that there was none, he will claim that he thought so in good faith. And then there is always the option of blaming Rudy 🙂

Insiders would need to be rolled over to assure a winning case for the prosecutors, as they are trying to do now on his New York tax case.

Allowing a president a free pass to throw an election over before January 6th, if he is not prosecuted for attempting that, then it will be open season for future ‘morally challenged’ presidents to do so. Thus ends my cheery missive for today… Jim W. Dean ]

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First aired … July 06, 2021

Other countries prosecute their criminal leaders – Presidents, Prime Ministers, etc. For example, France, South Korea, South Africa and Italy have all prosecuted former leaders for crimes they committed while in office. However, in the United States there is no precedent for prosecuting a criminal former president.

Prosecutors generally don’t like to take maiden legal voyages, that is, bring a case that is unprecedented. Prosecutors like to have legal precedent as a blueprint. They like to have the comfort and cover of being able to point to an appellate court opinion – legal precedent – and say, “this has been done before, so I am not breaking new legal ground.”

However, logic and common sense dictate that, if you require precedent to indict a criminal former president then we could NEVER charge a criminal former president. Indeed, the way prosecutors create precedent is by doing something for the first time.

The real question is – is there anything prohibiting the prosecution of a former president for crimes he committed while in office. The answer is a definitive NO – there is no law, no statute, no appellate court opinion and no Supreme Court precedent prohibiting the prosecution of a former president.

This video discusses prosecutorial considerations in taking a maiden legal voyage – bringing a novel case for which there is no legal precedent and relates example of when such novel legal cases have been brought in the courts of Washington, DC.

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11 COMMENTS

  2. It’s clear many Trump haters are convinced he is guilty of something. And if they look hard enough they will find something. I believe that’s called a fishing expedition. And it’s also crystal clear that if Trump never dared to crash the Washington political club there would be no investigation of his affairs. That’s politics.

    • Bullshit! A more accurate assertion would be “Trump lovers believe it’s clear many Trump haters are convinced he is guilty of something”. As for “it’s also crystal clear that if Trump never dared to crash the Washington political club there would be no investigation of his affairs”, yeah, if Trump wasn’t president, he wouldn’t have been able to bribe the president of Ukraine with digging up dirt on his political rivals, in exchange for congressionally approved military aid, nor would his AG have run interference in the investigation of Trump’s obstruction of justice regarding the same matter. Absent his term in the White House, he probably would have remained an unindicted pedophile and tax cheat.

    • Those in the cult of personality do not get it. It’s not the person its the behavior. Trump did nothing for his base except get the SC religious, the crazy kind. Everything else is a steady stream of lies. The corruption increased ten fold.
      His base cheers when people are thrown in jail for petty crimes. Now they cry like babies.
      This is how we know we are dealing with spoiled children. Its dumb beyond belief.

    • If my memory serves me correctly, Trump had quite a hate machine cranked up, and threw the doors open for the mentally challenged to join in with him, and to “be somebody”. We have all seen this play before, all throughout history, not that Trump would know. In the end he is going to be quite an historical figure himself.

  3. This is an example of why I love republicans. They don’t beat around the bush, when it’s obvious something stinks, they go for the throat. Of coarse the democrats always acquiess to logic and surrender – so that helps. Why couldn’t the Donald have stayed a democrat. This shit would have been over long ago.

    This is also why I hate republicans. They are the Mob.

  4. He was arrestable Jan 7 and nothing anyone says changes that.

    The question is, “Do we have kings or do we have public servants subject to the same laws as us” ? In our democracy, the law hinges on the door jamb of all people are equal under the law,.
    Otherwise , there is no law. Don’t make them if you do not want to follow them.

    Period.

  5. If VT’s right, it could be an open and shut case……..in either direction.
    On one hand it looks really, really bad.
    But, on the other, that makes no difference.
    I think they missed their chance, and now want to make it all go away.
    But the truth could be, there are so many different ways they could play the whole thing, they’re keeping it alive for multiple possible ulterior motives.
    In politics, nothing is ever as it appears.

  6. We don’t need Merrick Garland. He’s too much of an academician anyway. We need either Karl Racine, the Attorney General of DC, or Fani Willis, the District Attorney of Fulton County, Georgia, to indict Trump, for either inciting a riot (in the District) and invasion of the US Capitol, or conspiracy to commit election fraud in Georgia in the 2020 presidential race, each respectively.

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