Eduardo Munoz Alvarez/AP Photo
Protesters in front of the district attorney’s office, March 24, 2023, in New York
Donald Trump was produced by America’s culture of elite impunity. He flagrantly abused the bankruptcy system to enrich himself while driving his casinos and hotels into the ground. He allegedly avoided paying tens of millions of dollars in inheritance taxes. Over two dozen women have credibly accused him of sexual assault. And he got away with it every time. Even when his habit of stiffing his contractors and losing money by the billions made his reputation so bad that nobody in New York real estate would work with him anymore, NBC producers rescued his reputation with The Apprentice, bending over backwards to make him appear to be a business genius by reverse-engineering episode narratives after Trump randomly fired contestants on a whim.
So it should come as no surprise that Trump’s sole serious legal jeopardy thus far comes years after the fact, and for one of his least important alleged legal violations. The worst president in history, who tried to overturn the Constitution and democracy itself, might get busted—if the Manhattan district attorney doesn’t lose his nerve—over paying off a porn star hush money to keep quiet about a 2006 affair. It’s akin to busting Al Capone on tax evasion, except if Capone had arranged the St. Valentine’s Day Massacre live on the radio.
To be clear, the Daniels story, at least as she tells it, was a serious legal violation. Daniels says that back in 2006 she had sex with Trump at a Lake Tahoe hotel. Then in late October 2016, Trump’s then-lawyer Michael Cohen paid her $130,000 to keep quiet. Trump in turn paid back Cohen with two checks disguised as a retainer. The Trump campaign, of course, was so eager to bury the story because, had it gotten out, he thought it might have hurt him politically. The affair (which Trump apparently admitted on Truth Social recently) happened only about a year and a half after Trump married his wife Melania, and a few months after the birth of his son Barron. There would have been a frenzied swarm of media coverage over such a salacious, titillating story.
Cohen was convicted of tax fraud and campaign finance violations in 2018 for his role in the scheme, and testified before a House committee that “Mr. Trump directed me to use my own personal funds from a home equity line of credit to avoid any money being traced back to him that could negatively impact his campaign.”
Trump escaped any punishment in the initial Cohen probe. But now Manhattan District Attorney Alvin Bragg is investigating whether Trump committed fraud by labeling the hush money reimbursement as a “retainer agreement,” even though no such agreement existed.
All that surely deserves a great deal of legal scrutiny. So does the Trump campaign conspiring with National Enquirer publisher David Pecker to spend $150,000 buying rights to a story from Playboy model Karen McDougal, who alleged she had a monthslong affair with Trump in 2006-2007, and then burying it. (I had completely forgotten about that one before writing this article.)
The cancer of elite impunity was sooner or later going to produce someone like Trump.
But neither of these is remotely comparable to Trump’s worst violations of the law, Constitution, and basic principles of democratic government.
The emoluments clause in the Constitution, for instance, prohibits the president from accepting any money from state-level officials or foreign governments without the consent of Congress. The reason, obviously, is to prevent corruption—the Founding Fathers didn’t want Britain or whoever to get a puppet government by handing huge bribes to the president. Not only was Trump the first president to refuse to place his vast business empire in any kind of trust while in office, he had numerous Bribes Here hotels, where foreign delegations could place money directly into his pocket—one of them literally leased from the federal government. The Saudis in particular were notorious for buying up blocks of rooms for months at a time, but they weren’t the only ones. (The Supreme Court, of course, signed off on all this.)
And that was only part of a sprawling labyrinth of corruption. Citizens for Responsibility and Ethics in Washington counted up about 3,700 conflicts of interest over his time as president—holding official presidential business, Republican political events, and diplomatic conferences at his properties; charging the Secret Service tens of thousands of dollars to use his golf carts; constantly promoting his businesses through official channels, and on and on. No politician in American history has been half so shameless about using high office to stuff money into his own pockets.
Finally, there is Trump’s attempt to overturn the 2020 election. No president in American history had ever totally refused to concede defeat, or used the lame-duck period to spread lunatic lies about election fraud, or attempted to bully state governments into inventing new votes for him, or sicced a violent mob on Congress in a (temporarily successful) attempt to disrupt the legal certification process and get Vice President Pence to declare him president. It was the kind of tin-pot dictator behavior familiar from any of a dozen U.S.-backed coups.
January 6th was a crime, of course. 18 U.S. Code § 2383 stipulates: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto” can be punished by up to ten years in prison and a permanent ban on holding federal office. If Trump did not violate this statute, then words have no meaning.
But Trump’s attempted putsch was also a crime against the very idea of the law itself. Liberal and centrist lawyers often quibble with arguments that Trump should have been prosecuted years ago, because they helplessly believe that all is for the best in the best of all possible legal systems here in America. Trump has not been indicted yet, which means that for some reason he shouldn’t have been.
The real reason Trump hasn’t been indicted for his major crimes is that the people in charge of that decision—Attorney General Merrick Garland, above all—are all part of the culture of elite impunity that produced Trump in the first place. He hasn’t been prosecuted for the same reason George W. Bush didn’t get busted for his torture program and Barack Obama didn’t get prosecuted for assassinating American citizens without trial: Presidents are, for practical purposes, above the law. And this is true of titans of industry, or virtually any powerful person. The cancer of elite impunity was sooner or later going to produce someone like Trump, who is just taking that culture to its logical end point of dictatorship.
The wisdom of the ancients—reflected in the above law against rebellion—is clear about what to do with a would-be despot like Trump: remove him from the political board, however you can. So while Bragg may not be focusing on Trump’s worst crimes, should his indictment come through, he is to be commended for doing something at least. Let’s hope it is just the first of many.
