Immunity Disorder: The Man Who Would Be King Comes Out and Says So
“There’s a recklessness in the air in America” was the elegant yet apt way ABC News journalist Terry Moran put it on Friday evening. Moran made the observation in the context of Rudy Giuliani’s misbegotten belief that he could egregiously defame two Georgia poll workers and get away with it. He didn’t. The “Say Anything” ethos Giuliani appears to have absorbed from former President Donald Trump backfired spectacularly on New York’s former mayor, who was hit by a defamation verdict against him of $148 million, and that’s a whole lot of hair dye.
That recklessness, that disregard for either truth or consequences, afflicts both sides of the political divide. A Harvard/Harris poll released last weekend showed that a majority of Americans aged 18-24 are sufficiently untethered to tell pollsters that it would be good and just for Hamas, an internationally acknowledged terrorist organization that slaughtered 1,200 Israelis in cold blood on Oct. 7, to displace the state of Israel. That this cohort receives its “information” from TikTok and thinks the Gaza Strip is in downtown Las Vegas is little consolation. Left and right, across the country, recklessness and ignorance have combined to form a pincer, degrading the threads of America’s democratic fabric and degrading American democracy itself.
Trump has been surpassingly shrewd about America’s descent and bold about exploiting it. He believes that he can assert the right to absolute power without losing votes and that, indeed, presenting as The American Strongman will actually help him regain the Oval Office. And given the recent polling showing him leading President Joe Biden, he may be right.
The Constitution, Trump declared while president on July 19, 2019, “allows me to do what I want.” He doubled down on this days later. “I have an Article 2 (of the Constitution) right where I have the right to do whatever I want as president.” Last year he proclaimed that the growing evidence that he committed crimes as president “allows for the termination of all rules, regulations and articles, even those found in the Constitution.” Last week, offered the opportunity by Fox host and acolyte Sean Hannity to deny that he would abuse his power if he regained the White House, Trump pointedly declined. “Except for day one,” he replied.
Trump has formalized his position that he was and will be above all laws applicable to lesser Americans in the criminal proceeding against him in Washington, D.C., where he has been indicted for defrauding the United States and attempting to stage an illegal coup d’etat. He maintains that he is immune from prosecution for any crimes he committed as president because, well, he was president when he committed them.
Federal judge Tanya Chutkan, who is presiding over Trump’s case, has rejected Trump’s immunity defense. Trump “contends that the Constitution grants him ‘absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibility,’” Chutkan wrote in her decision. “The Constitution’s text, structure and history do not support that contention. No court — or any other branch of government — has ever accepted it. (Being president) does not confer a lifelong ‘get-out-ofjail-free pass.’”
Trump has appealed her decision, which he hopes will delay his criminal trial until after next year’s election. Special Counsel Jack Smith has countered by asking the Supreme Court to decide whether Trump is beyond the rule of law, and to do so on an expedited basis.
In any other period of American history, a former president would be too embarrassed to claim that he was immune from criminal prosecution for crimes committed while president and to force a federal judge to cite the “widely acknowledged contrast between the President and a king.” But in any other period, a twice-impeached former president facing 91 separate criminal charges in four criminal indictments would not have a 50-50 chance of being returned to the presidency.
There’s a recklessness in the air in America, just as Terry Moran says. It has eroded our common sense, our fealty to facts, our capacity to separate truth from chaff. And, alarmingly, where that recklessness leads is anyone’s guess.
Jeff Robbins, a former assistant United States attorney and United States delegate to the United Nations Human Rights Council in Geneva, was chief counsel for the minority of the United States Senate Permanent Subcommittee on Investigations.