Democracy & Government

Where’s My Bill Barr

Donald Trump's uncertain legal future

Where’s My Bill Barr

WASHINGTON, D.C.- JULY 28, 2020: Attorney General William Barr takes the oath before he appears before the House Oversight Committee on July 28, 2020 on Capitol Hill in Washington D.C. In his first congressional testimony in more than a year, Barr is expected to face questions from the committee about his deployment of federal law enforcement agents to Portland, Oregon, and other cities in response to Black Lives Matter protests; his role in using federal agents to violently clear protesters from Lafayette Square near the White House last month before a photo opportunity for President Donald Trump in front of a church; his intervention in court cases involving Trump’s allies Roger Stone and Michael Flynn; and other issues. (Photo by Matt McClain-Pool/Getty Images)

Donald Trump does not want to leave office. First and foremost, he hates to lose, and he hates to be a loser. Only three Presidents in the last half century (Ford, Carter, and Bush the elder) have been turned out after one term. And, as he told his base, “how could I lose to a candidate like Joe Biden?”

After January 20, Donald Trump will obviously lose his walled-in residence at the White House, his phalanx of Secret Service agents (he will be down to a platoon), the use of Air Force One, Marine One, and all the other perquisites and emoluments of office.

He will also lose  all of the legal protections of the presidency, and legal experts say he has significant civil and criminal exposure. A court just granted New York Attorney General Letitia James access to his financial records. James is delving into congeries of alleged financial frauds, which will show whether Trump improperly manipulated the value of his assets to secure loans and obtain economic and tax benefits. The court order signals a possible civil action that will most likely happen once he is a private citizen.

Other civil suits, filed by E. Jean Carroll and Summer Zervos pending in New York, alleging pre-presidential sexual assaults,  would go forward, minus the purported defense that Trump is immune from civil suit while he is president.

And Trump would have to defend these cases with his own resources. Gone is his seemingly blanket coverage under what I call “Barr-care,” a Trumpian form of legal aid where the Justice Department appears for him whenever he goes to court—even over private conduct. This would include resisting disclosure of his pre-presidential tax returns, attempting to enjoin former National Security Adviser John Bolton’s book, The Room Where it Happened, and a “tell-all” book about his wife Melania. A federal judge last month denied a Justice Department move to represent Trump in the E. Jean Carroll case, a bit of fancy footwork which would have ended the case.

Barr even went so far as to lend color to Trump’s baseless claims of fraud in the election, instructing US attorneys throughout the nation to investigate the matter. The lawyers investigated, and promptly reported back to Barr that there was nothing to it. The mountain labored and brought forth a lamb.

Trump will need a lot of private legal counsel, once Bill Barr is gone. He has claimed to be immune from legal comeuppance. He learned in the 1970s how to work the system from his father, Fred Trump, who continued his pattern of racial discrimination in housing in the teeth of a federal injunction. He also learned from his mentor, the disbarred attorney Roy Cohn who not only worked the system, but proved he could beat it. “Cohn often advised. “F— the law! Who’s the judge?” And never admit defeat even when your back is against the wall. Instead, always, declare victory, no matter what happens.”

“Where’s my Roy Cohn?” Trump cried out to White House counsel Don McGahn when he refused to fire Bob Mueller. Bill Barr became Trump’s Roy Cohn, but once he is out of office, be gone, and the hammer will descend.

And, what would they prosecute him for? Is it conceivable that Donald Trump could be criminally prosecuted after he leaves office?

Most concerned citizens would say definitely not. That is something they do only in banana republics. We don’t want the unseemly spectacle of a former president in jail. That’s not the way we do things here. Of course, they do it in Israel where they believe in an eye for an eye.

But there are a number of criminal charges on the horizon. Obstructing justice in the Russia probe, for which Mueller refused to exonerate him, and did not proceed only because he was a sitting president, is a runner. Or bribery arising out of egregious emoluments clause violations.

How about the crime of ignoring the result of a free and fair election, shredding our traditions of a seamless peaceful transition of power? Plainly, un-American, if nothing else. We are seeing a political freeze-out unparalleled in American history: barring Biden’s access to daily presidential intelligence briefings, intercepting with an unbelievable pettiness messages of congratulations from foreign leaders addressed to Biden, and stubbornly declining to recognize Biden as the “apparent” election winner entitled to federal support for his transition? It is essential for all of us that Biden hit the ground running on January 20, but Trump stands determined to delay the inevitable even if his selfish conduct compromises our diplomacy, undermines our national security, and adheres to our enemies.

Trump has compared himself to Abraham Lincoln, but by refusing to concede defeat and launching baseless blunderbuss accusations of massive electoral fraud, he takes his rightful place beside tyrants like Moduro of Venezuela, Mugabe of Zimbabwe, and Milosovic of Serbia, who held elections only to denounce the adverse result as fraudulent.

During the impeachment proceedings, Trump bandied about the word “treason” to refer to Nancy Pelosi, Adam Schiff, the “whistleblower” and certain of the witnesses.

The United States Code defines treason as a crime committed by a person “owing allegiance to the United States, [who] levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.”

Talk about treasonous behavior? There could be no greater aid or comfort to China and Russia than Trump’s alarming purge of the Defense Department leadership at this time of maximum danger to our national security. Was he just punishing Mark Esper for declining to order troops to take on a domestic security role in the run-up to the election? Or is there more to it than that? Coming up with obscure individuals who are poised to accomplish irresponsible withdrawals from Afghanistan, Germany and South Korea? Or undertake dangerous operations against Iran? Or do something special for Putin or Erdogan in Turkey? The breadth and timing of it all is astounding.

And then, there are state crimes? State crimes are not within the pardon power. That’s in the Constitution. New York District Attorney Cy Vance is waiting at the court house door. He has subpoenaed eight years’ worth of Trump tax returns, and when he gets them, there could be an indictment for criminal conduct before Trump became president. There are startling indications of business frauds, false financial filings, state tax evasion,  and surreptitious payments to Stormy Daniels and Karen McDougal for which Michael Cohen went to jail. In the indictment of Cohen, the federal grand jury charged that Trump directed and coordinated the hush-money payments.

Trump may even try to pardon himself. Most constitutional scholars argue that it wouldn’t stick. It has never happened before, so it will be hard for judges to find a case in points.

Pardons most certainly will fly from the White House before January 20. And I don’t mean the Thanksgiving turkey. Trump may even try to pardon himself. Most constitutional scholars argue that it wouldn’t stick. It has never happened before, so it will be hard for judges to find a case in point, but applicable is the maxim of the English common law that, “no man may be the judge of his own cause.”

Of course, Trump might resign just before January 20, and have Mike Pence pardon him. This would only be for federal crimes, but such a “trumped-up” pardon will provide no immunity from state criminal prosecution in New York. And there will be no Bill Barr around to protect him. As Plutarch said centuries ago, “the millstones of the gods grind late, but they grind fine.”

James D. Zirin

James D. Zirin, a lawyer, is the author of the recently published book, “Plaintiff in Chief, -A Portrait of Donald Trump in 3500 Lawsuits.”