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 ]
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.