Photograph Source: DonkeyHotey – CC BY 2.0
“Do you know how it feels to have the president of the United States target you?”
—Ruby Freeman, Georgia election worker
“Hey, you stupid slave nigger…You are in our sights, we want to kill you. If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch.”
—Abigail Jo Shry, Texas Trump cultist’s threat to Judge Tanya Chutkan
“They must serve as examples for their crimes. They must serve as examples so that others will think long and hard before committing a crime or an act of violence.”
—Donald Trump on the Central Park Five
“Well, when the president does it that means that it is not illegal.”
Revenge porn is the GOP’s new black.
“I am your retribution,” Donald Trump, America’s bloated, bloviating Batman, declares.
“We’re going to start slitting throats on day one,” promises Ron DeSantis, glitchy governator of Florida, the state where history goes to die, and being comatose is touted as a virtue.
Meanwhile, in congressional hearings, the queen of laptop porn, Congresswoman Marjorie Taylor Greene, parades explicit photos of a naked Hunter Biden and his redacted junk to score MAGA points against President Joe Biden. This conduct is relatively tame for the rabid Greene, who has labeled Pelosi a “traitor,” advocated for her assassination, and spread baseless innuendos when a homicidal home intruder fractured Paul Pelosi’s skull with a hammer.
It seems that Trump and his supporters will not be satisfied until MAGA cultists take down his political enemies and, ultimately, the country.
They are encouraged by Trump, who has always spoken, unfiltered, the language of vengeance and violence. In 1989, as a real estate mogul, he demanded the death penalty for the Central Park Five, the Exonerated Five since 2002, although Trump, who was found liable for sexual assault in the E. Jean Carroll case, refuses to acknowledge their innocence or to apologize. As a 2016 presidential candidate, he boasted of sexually assaulting women and condoned an attack on a Black Lives Matter protester at one of his campaign rallies. As president, he “joked” that police should rough up suspects they take into custody and once asked former Defense Secretary Mark Esper why White House demonstrators protesting the murder of George Floyd couldn’t just be shot.
Trump’s language, however inciteful, is protected by the First Amendment. His actions are not. And while Trump is many deplorable things – racist, psychopath, pathological liar, xenophobe, misogynist, and cis-supremacist – a fool is not one of them. He may notoriously boast that “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters,” but, like the mafia dons he channels, he knows that rather than risk the consequences of committing such an act himself, it’s best to leave the dirty work to others. That is what minions and co-conspirators are for. After all, this is the bone-spurred no-show who promised his followers on January 6 that he would join them at the Capitol.
Despite his threats and intimidation, Defcon Don remains an imperiously impervious and untouchable pariah who, his 20-minute, whirlwind excursion to the Fulton County Jail aside, may never see the insides of an actual jail cell. The norms of the criminal justice system simply do not apply to him: mugshots are optional, perp walks are negotiated, arraignments are breezily expedited. Does anyone doubt that, unlike social media influencer Kai Cenat, if Trump had conjured up a flash mob in front of Trump Tower for a giveaway of mugshot1 NFTs and a riot broke out, he and his followers would have been allowed to leisurely broker their arraignment dates, not arrested on the spot?
According to the Prison Policy Initiative, more than 400,000 Americans are currently being detained pretrial – but not the quadruplely indicted Trump. In Georgia, the “billionaire” braggart’s bond was set at a mere $200,000, $300,000 less than that of his former fixer Michael Cohen who was convicted of hush money payments to a porn star on Trump’s behalf. One would think that conspiring to subvert democracy is a more serious offense.
Trump has already orchestrated one insurrection and is determined to incite another. Yet he remains not only a free man but the GOP presidential frontrunner, converting his many indictments into political currency. Of the eight “law and order” Republican presidential hopefuls on the debate stage in Milwaukee, all but two declared they would support Trump for party nominee even if he were “convicted in a court of law.” These duplicitous defenders of the Constitution see nothing wrong with backing a man for president who has proven himself incapable of upholding and protecting it.
After much stalling, it appears that with Trump’s Georgia booking our system of justice is finally beginning to work. But we have gone through the motions before, including two impeachments and a civil case, only to see him evade accountability.
This matters little to his supporters who hold his First Amendment rights and their Second Amendment rights more important than the rule of law, despite the threat of inciting stochastic terrorism Trump’s inflammatory rhetoric poses to the nation.
Trump has made no secret about whom he deems to be his enemies. His words have already endangered the lives of Georgia election workers Shaye Moss and Ruby Freeman, Fulton County D.A. Fani Willis, New York County D.A.Alvin Bragg, New York A.G. Letitia James, and Washington, D.C. Judge Tanya Chutkan. Encouraged by their puppet master, Trump supporters wasted no time doxing the Fulton County grand jury. That most of his targets are black and women should surprise no one.
Fulton County Jail’s nominal “inmate” No. P01135809 has been repeatedly warned about his threats. Yet despite a few tentative toe-dips in the shallow pool of judicial equity, everything so far indicates that Trump is above the law, where he will remain so long as optics takes precedence over principle and the equal application of justice.
The optics of concern here is not that of a two-tiered justice system. Rather, it is that the sight of Trump’s conviction and imprisonment would send the wrong message to the world that America has become a Third World “shithole country.” Sadly, concern over such optics overrides any about the fate of our democracy should his crimes go unpunished.
Some seem to think that Trump’s disgrace and humiliation are punishment enough. The media point to the dilapidated, overcrowded conditions of the Fulton County Jail, which are good enough (or bad enough) for mundane criminals but apparently too “extreme” for the former president. Crocodile tears fully primed, the media mouths concern about the “nightmarish public health” conditions at the jail, fully aware that the odds of Trump spending a night – or any time – behind its bars are nil. And even if Trump were incarcerated, does anybody believe that he would be treated like any other inmate or come to share the same fate as LaShawn Thompson, whose body was found “dehydrated, malnourished, and infested inside and out with insects”? Or would maggot removal be added to the roster of duties of the Secret Service?
For some, the optics of Trump’s booking and scowling mugshot might inspire optimism that the system is finally beginning to work. But we have gone through the motions before with Trump, only to witness the gravity-defying farce of trickle-up justice. Of course, it has yet to be proven in a court of law that Trump conspired to steal the election, but the question remains: What consequences will he face if and when it is proven beyond a reasonable doubt that he has? Moreover, what happens if Trump is convicted of his felonies in New York and Georgia but wins the Republican primary and the general election? Will he be imprisoned? Will the big house become the new White House?
The threat remains that if Trump is not convicted, he will run for president in perpetuity if only to stay out of prison. As early as August 2020, years before his serial indictments, Trump telegraphed his intent to cling to the presidency “4eva.” The means to thwart his authoritarian ambitions exist, but their use will require a measure of political will that those currently in a position to act lack.
Some comfort may be taken in the fact that legal scholars have revisited the theory that Section 3 of the 14th Amendment, the so-called disqualification clause, which bars elected officials who have violated their oath to uphold the Constitution and engaged in insurrection against the United States from running for and holding political office, could be invoked to derail a Trump dictatorship that would see him and his allies enact political retribution against individuals and institutions responsible for his present predicament.
Realpolitik, however, reveals that its successful use is far from guaranteed. Except for New Mexico County Commissioner Couy Griffin, attempts in 2022 to invoke the clause to remove insurrectionist Republican officials from office have uniformly failed. In Georgia, the non-profit group Free Speech for the People invoked the clause in a suit to remove Marjorie Taylor Greene’s name from the ballot there. Similar campaigns were launched against North Carolina Rep. Madison Cawthorn, Indiana Rep. Jim Banks, and Arizona Rep. Paul Gosar. None succeeded. And while Republican New Hampshire Secretary of State David Scanlan is reportedly listening to those advocating use of the clause to block Trump’s name from appearing on ballots in his state’s presidential primary, and Florida lawyer Lawrence Caplan has filed a federal lawsuit challenging Trump’s 2024 presidential bid, it is unlikely that other Republican secretaries of state will cooperate in these efforts and far more likely that they will move to stymie them.
Still, a bevy of legal scholars and jurists, including Lawrence Tribe and J. Michael Luttig and William Baude and Michael Stokes Paulsen, have argued that the disqualification clause is “self-executing,” claiming violators are automatically disqualified from running for and holding political office and that disqualification does not require a criminal conviction. As Luttig explained on CNN,
All officials, federal and state, who have a responsibility to put on the ballot candidates for the presidency of the United States…are obligated under the Constitution to determine whether Donald Trump qualifies to be put on the ballot. That is, they must determine themselves whether he is disqualified from being listed on the ballot by Section 3. Now, here’s how this will work: Any secretary of state or other state election official who’s charged with that responsibility will make the determination. Now, whether that person decides that former President Trump is qualified or whether he or she determines that he is disqualified by Section 3 and therefore doesn’t list him, that decision will be immediately challenged in federal court, and it will quickly move to the Supreme Court of the United States, where this decision will have to be made prior to the 2024 election.
Nonetheless, some serious doubts temper any optimism. Congress, by a vote of two-thirds of each House, can remove the disqualification, something it has done twice: In 1872, in the name of national reconciliation, it enacted the Amnesty Act, which lifted restrictions barring former Confederates from voting and holding office, and in 1898, it voted to end Section 3. The only other time Congress invoked the clause was in 1919 when it refused to seat socialist Victor Berger for his opposition to U.S. involvement in World War I, a decision that was later overturned (Berger eventually served three terms). On the other hand, in the 1970s, Congress passed joint resolutions to grant Robert E. Lee and Jefferson Davis posthumous Section 3 amnesty. Here, too, the aim was national reconciliation in the wake of Watergate and the Vietnam War. According to New York City Bar, there is currently no congressional legislation to enforce Section 3.
Given its rightwing majority, placing one’s faith in the Supreme Court seems criminally naïve. Aside from the fact the initial intent of the clause has repeatedly been nullified by a desire for “national unity,” and with rumors of impending civil war now indelibly a part of the zeitgeist, it seems unlikely that Congress or SCOTUS will rise to the challenge.
Note
1. The Fulton County mugshots have proven anticlimactic, as they are little more than mostly dour DMV portraits. I had envisioned front view and side view shots, height backdrops, and handheld slates with names and inmate numbers on them. But I guess what’s good for Young Thug is good for Old Thug and his gang of eighteen.
