What is "whatever it takes" to stop Donald Trump?
If elected, Trump will break the legal system. To stop Trump, will we break the legal system?
The overwhelming, indisputable facts, have been in evidence for well over a year. Donald Trump ignored the fact that he lost the 2020 election, had his lawyer Rudy Giuliani, who is now fighting disbarment in Washington D.C. after having his law license suspended in New York, assemble a cast of fabulists including John Eastman, to cobble together a legally incoherent plan to remain in power. Donald Trump convinced enough people, all of whom knew better, to go along with his plan, each believing that they were participating in some Kabuki theater that will shovel cash into their thieving, grifting hands for years.
What they have reaped exactly matches former White House attorney Eric Herschmann’s final advice to Eastman: “"I'm going to give you the best free legal advice you're ever getting in your life. Get a great f'ing criminal defense lawyer—you're going to need it.”
Yet what Donald Trump has reaped is heaps of cash from small donors who are funding his legal defense, and enough political clout to silence opposition from people who definitely know better, yet speak well of Donald Trump out of fear. These are people who should be ashamed of themselves for their perfidy and cowardice. I could call them out, but you know who they are, and they occupy Republican seats in the House of Representatives (including the Speaker), the U.S. Senate, and state houses around the nation.
Donald Trump is not afraid to break the legal system, and he has been breaking it for many years. He’s made an art of breaking laws, courts, and judges. In 1984, Donald Trump forced an anti-trust trial against the NFL, because the NFL wouldn’t let him be an owner. So he bought the USFL New Jersey Generals and moved the league from spring to fall, hoping for a merger with the NFL and a back-door to the owner’s club. He beat the NFL in court, but lost—the jury awarded a single dollar in damages.
“He did not do the USFL well,” Patricia Sibilia, a juror at the 1986 USFL-NFL trial held in New York City, says in Football For A Buck. “What’s funny, in hindsight, is that his so-called business genius ruined it for them. He was not believable in anything he said. He came off as arrogant and unlikeable.”
Thirty years of ruining lawyers, playing the delay game, making a mockery of courtrooms, failing to remember a single relevant fact under oath, and strong-arming witnesses is Donald Trump’s formula for the most massive play ever attempted in American jurisprudence.
Either the courts are right, or Donald Trump is right, and the conspiracy goes all the way up to God. Regarding the election, that is.
If you believe that Fulton County, Georgia election officials destroyed, defaced, or changed over 12,000 ballots which would have swung the state’s election results—and electors for President—to Donald Trump in 2020, you already believe our legal system, at every level, for every purpose, is completely broken. This is the bedrock of what others call “The Big Lie.”
Regarding January 6th, some lawyers have claimed that the rioters were not necessarily acting “corruptly” when they stormed the Capitol. They—the rioters—really believed they were opposing a system—the election officials, the courts—that itself was corrupt, and therefore were acting to disrupt a government proceeding, but not doing so corruptly, but honestly.
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If what those rioters believed (even if they’ve recanted) is true in any meaningful way, then our system is already broken. Then, as Donald Trump said in 2022, “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” It can’t be fixed; it has to be rebuilt. Trump intends to do just that—he’s said it—“on Day One.” In Trump-world, they’re after him, and they’ve weaponized the media, the courts, and the machinery of government to get him.
To be fair, they were after him. Giving equal time to the excesses of the anti-Trump brigades, I will mention that while Donald Trump was president-elect, the director of the FBI visited him at Trump Tower in order to write contemporaneous notes, usable as evidence, should Trump be found in cahoots with Russians who tried to interfere with the 2016 election. What James Comey didn’t say is that the FBI had already opened a case, Crossfire Hurricane, which based applications for FISA warrants, including communications inside the Trump campaign, on manufactured evidence funded by the Clinton campaign.
During Donald Trump’s four years in office, every possible leak, disparagement, betrayal, and humiliation was hurled at him. Operating in the White House each day was like an episode of Game of Thrones. This was ideal for the boss, who was used to burner phones, assumed identities, torn-up notes written with Sharpie pens, and secret visitors. Nobody could school Trump in geopolitics, diplomacy, or government; he believed they were all idiots, and they believed the same of him.
When Donald Trump had his phone call with Ukraine President Volodymyr Zelenskyy, which led to his first impeachment, nobody could tell him it was illegal, or even wrong, to solicit an investigation by Ukraine into Biden family dealings. Nobody could manage Donald Trump, so they either shut up and went along, or they left, bitter from the experience, or they turned on their former boss. Donald Trump left no other options available. He exposed the spine—or lack of one—in everyone he personally dealt with, and he is still doing that.
That brings us back to Donald Trump’s current legal challenges. His strategy is obvious: Delay the cases, win the election in November, and become POTUS on January 20, 2025. Then he can pardon himself (or at least try to), and anyone else he wants to pardon, and do it legally (or at least with the appearance of legality). We do know this…as president, all the criminal cases against Donald Trump would come to a halt, and the machinery of impeachment would spin up once again.
As president, Donald Trump plans to break the legal system. He plans to fire anyone who isn’t personally loyal to him, and hire only people whose spines have passed his jellyfish test of loyalty. He will have only yes-men (and yes-women) in his orbit, and everyone else will be ruled by fear. Those in opposition, or those who turn on him will be “nuked.” Those who like Donald Trump believe those plans are not only good, but necessary to disassemble the weaponized machinery in Washington, D.C. that hunted their man for four years in his first term.
But the facts in evidence, undisputed in any courtroom, show that regarding the election of 2020, and the events leading up to, and on the day of January 6th, 2021, the machinery in Washington, D.C. was weaponized because those weapons were required to save the republic from an attempt to force the government to overthrow an election by the people of the United States.
Former Republican Congresswoman from Wyoming, Liz Cheney, lost a primary election in 2022 that two year earlier, she won with 70 percent of the vote. Cheney lost because she cooperated with Democrats in the House of Representatives, instead of playing the political games that Kevin McCarthy played. As a key member of the Select Committee investigating January 6th, Cheney put the facts ahead of her politics. In her concession speech, she made a chilling prediction:
If we do not condemn the conspiracies and the lies, if we do not hold those responsible to account, we will be excusing this conduct, and it will become a feature of all elections. America will never be the same.
I had already written a paragraph saying what Cheney said in 2022, but deleted it because she said it better:
To believe Donald Trump's election lies, you must believe that dozens of federal and state courts who ruled against him, including many judges he appointed, were all corrupted and biased, that all manner of crazy conspiracy theories stole our election from us and that Donald Trump actually remains president today. As of last week, you must also believe that 30 career FBI agents, who have spent their lives working to serve our country, abandoned their honor and their oath and went to Mar-a-Lago, not to perform a lawful search or address a national security threat, but instead with a secret plan to plant fake incriminating documents in the boxes they seized. This is yet another insidious lie.
Then Cheney said this:
We must be very clear-eyed about the threat we face and about what is required to defeat it. I have said since January 6, that I will do whatever it takes to make sure Donald Trump is never again anywhere near the Oval Office.
The question is: What is “whatever it takes”?
While Colorado removed Donald Trump from its ballot, Michigan’s Supreme Court ruled that he can remain on the primary ballot in February. Electorally-speaking, blue-state Colorado doesn’t matter, but swingy Michigan does. State efforts to declare Donald Trump ineligible under the 14th Amendment will likely end in a mixed-bag, and may end up mooted by the U.S. Supreme Court if it holds that some due process proceeding is necessary before such a determination can be brought to effect.
Primaries begin in just a few weeks, so these cases will probably not have a major effect on early ballots. Donald Trump is ahead by double-digits in every primary state. His legal troubles are consuming all the news cycles, and therefore even top contenders like Gov. Ron DeSantis and Amb. Nikki Haley are pushed into irrelevance in the daily headlines (except when they claim slavery had nothing to do with the Civil War). Every legal setback seems to translate into a larger lead for the former president.
Special counsel Jack Smith wants to have his trial of Donald Trump on charges of defrauding the United States due to the undisputed lies regarding the 2020 election, this coming March. If the trial proceeds, it could have a damaging political effect on Donald Trump’s effort to become the Republican nominee. Then again, most of these facts were presented during the House Select Committee hearings, and they were ignored, spurned, or simply disbelieved by supporters of Donald Trump. We just don’t know the effect of an actual trial.
However, the trial’s timing is in serious jeopardy. The weakest defense theory that Donald Trump’s lawyers have, that a former president has complete immunity from criminal prosecution for actions that he had taken as president, should have been swatted from the sky by any competent court. But Smith’s Hail Mary attempt to bypass the appellate process and go directly to the Supreme Court was unsuccessful. Then a few days before Christmas, the Trump legal team filed a motion asking the D.C. Circuit to dismiss the indictment.
The 55-page legal brief chided trial judge Tanya Chutkan, who consistently ruled against Donald Trump, for having a political axe to grind. They claim that the immunity itself stems from the obligation to protect a president “from falling prey to false accusations lodged by political enemies” as the New York Times phrased it.
Though the appeals court panel of judges, none of whom were Trump appointees, has pledged to work fast, oral arguments are not scheduled until January 9th. It’s a safe bet that the Trump legal team has other delay tactics in its arsenal to stretch this proceeding beyond those quick deadlines. In the meantime, Chutkan has placed the trial on hold, which makes the March 4th start date less likely.
The Washington D.C. case is tangled in a scheduling yarn ball with his New York trial regarding Stormy Daniels hush money, and his Florida federal case for mishandling classified material. If the D.C. case, which most directly confronts the January 6th events, gets held up beyond the spring, Donald Trump very well could have the nomination locked up before it goes to a jury. That is, if it goes to a jury, because of all the other legal commitments.
Of course, the fairy tale version of this is that Donald Trump is found guilty of all charges in these felony cases, is sentenced, and carted off to federal prison before the November election. But fairy tales don’t come true in the real world. The real world is that the Republican frontrunner will be on trial for crimes his supporters believe are politically motivated. Donald Trump will continue to raise money and support based on his trials. He will continue to harass and strong-arm witnesses, judges, and potential juries.
To convict him, it may require breaking the legal system, denying some elements of due process to a defendant, and making a mockery of democratic election mechanisms because one of the candidates is a particularly venomous and difficult animal who resists all efforts to contain or control him.
Liz Cheney invoked Abraham Lincoln in her concession speech, crediting him with saving the Union. To save the Union, Lincoln suspended the writ of habeas corpus, an act the Supreme Court found to be unconstitutional. Lincoln knew it was unconstitutional and refused to acknowledge Chief Justice Roger Taney’s ruling—he ignored it and broke the legal system in so doing. His justification was that the southern rebels had also broken the legal system by seceding and making war against the United States—a greater transgression.
If Donald Trump is handled according to all the protections and due process of our legal system, he will use those to his advantage. In our nation, defendants are entitled to all the advantages because the state has the burden of proof, both legally and factually, in criminal proceedings. Using crosses the line to abusing very easily, but the legal system is already stretched to its limit dealing with a former president who is resistant to all manner of normal controls and behavior.
We already know that once the election has been held in November, if Donald Trump wins (and yes, he could win, it’s not a stretch to believe he wins against President Joe Biden), then the legal options to deal with him become very narrow. In order to stop Donald Trump from taking power, some of the same measures that he himself took in 2020 and 2021 would need to be deployed, and they’d be just as wrong now as they were in 2020 and 2021. Faithless electors, delaying the count, and all the chicanery we saw four years ago won’t stop the process of a peaceful handover, or will the nation fall into a more violent version of “whatever it takes” than the violence from January 6th, 2022?
As Cheney said, and Lincoln did, would it be easier to just break the legal system now, a little bit, and then deal with the anger of Donald Trump’s supporters, while he passes into history without winning the GOP nomination this summer? We’ve already seen a taste of this with Judge Chutkan’s rulings, Jack Smith’s filings with the Supreme Court, and the Colorado Supreme Court’s decision to bar Donald Trump from their primary ballot.
It’s a fair bet that as the heat turns up, there will be more shortcuts, and some outright legal breakage, in the quest to stop Donald Trump. Either way, it seems we have a Catch-22: don’t break the legal system to stop Donald Trump, and he will break it to get elected, then break it more when he’s in office again. Or break the legal system to stop him, and suffer the consequences as America has to restore faith in what has made us the freest, most productive nation on earth.
Sadly, it seems we can’t have none of the above. Such are the times for difficult decisions.