Can a former US President ever face justice?

Franklin described our system as “A Republic… if you can keep it.” Any system of government only survives if it proves able to stand up to the endless series of challenges. If it fails those challenges, it doesn’t die or disappear; it mutates into something else.

The Stormy Daniels case against Donald Trump isn’t about to topple America’s democratic institutions overnight, but it could, depending on its outcome, deepen some pre-existing cracks in the foundation.

The details of the case aren’t terribly relevant here. It’s not about the events of January 6th. It’s not about Trump’s attempts to “find” more votes, or putting pressure on public officials whose job is to determine the outcome of an election. Nor is it about suggesting to the President of Ukraine that he “do [Trump] a favor” by digging into his political rival. All of those actions are much more central to the operation of our democracy.

The Stormy Daniels case isn’t really about the porn star, or paying for sex. It’s about campaign finances, and Trump’s attempt to declare a hush money payment as a business expense.

But since I’m not a lawyer, don’t take my word on that. The important distinction here is that it’s a criminal case against a former President. It also matters that this particular President, acting as an individual, has a litigious history. He’s spent a lot of time in court, mainly suing people or being sued by people. Also, he has previously been caught in numerous lies, including making false statements on his taxes (in other words, lying to a branch of the Federal Government).

Put simply, this is a man who has perfected the Art of Weaseling Out Of Deals.

Can he weasel out of the biggest deal, the deal we all make with our country: to obey its laws, or face consequences? That’s not a deal anyone is allowed to decline, short of permanently leaving the country. The question before us is whether it’s even possible to hold a former President accountable for illegal actions. We don’t know the answer to this, yet, because there is no precedent.

For a moment, let’s suppose Trump is found guilty of a felony, and required to serve time in prison (and isn’t able to bargain his way out of that). Would he be given a cell, and a cellmate, like anyone else? As a former President, he’s entitled to Secret Service protection. Are they about to follow him around on the prison grounds? For practical and security reasons, I doubt very much he’d be required to have less than his own private cell.

Much as I hate the fact, we have, in this country, a largely privatized prison system, a system arranged to make money from its prisoners. Cramming more people into fewer cells saves money. That principle would come into direct conflict with the need to give Trump special treatment. If Trump gets to have his own cell, and the other prisoners around him do not, is that justice?

It seems improbable that things would ever get that far. Some other arrangement, like house arrest, is more likely. Which house -- would he get to stay at Mar-a-lago? Again, if the only reason for that is because he ran a successful campaign for the Presidency, and not because it’s what the court decides that Trump deserves in answer for his crimes, then it looks even less like justice. If Trump is living it up when he’s meant to be doing time, that’s him making a mockery of justice.

Now suppose instead that Trump is found innocent. Does that mean the system has failed? Not necessarily. It all depends on the reason for finding him innocent. If it’s because a jury of his peers decide he didn’t break the law after all, then the system is working as designed. On the flip side, it’s problematic if the reason comes down to a technicality that has anything to do with his having been President. That would be an endorsement of the view that there is one law for the common man, another for the ruling class.

The more you examine the situation, the more problems you find. What, exactly, constitutes a jury of Donald Trump’s peers? A jury is expected to be impartial. Nearly everybody in America, and most people in the world, know who Donald Trump is. As an extremely polarizing figure, almost everyone who knows him already has an opinion of him: some love him, some loathe him. I can think of only three categories of people who might survive the jury selection process:

1. The sort of people who were undecided voters in the 2016 election. I.e., extremely indecisive people. As jurors, I would expect them mostly to defer to the opinions of those around them. They might help to populate the jury without making things worse, but they would do little to steer it.
2. The sort of people who don’t engage with politics at all. Even people who don’t vote, but still follow the news a modest amount, might by now have formed an opinion of Trump and be disqualified. That leaves the disengaged, those who simply don’t concern themselves much with the affairs of those around them. It’s safe to say that most such people are privileged (because it is a privilege to be able to ignore political questions), and therefore, this category would be mostly white, mostly male, mostly above the poverty line.
3. Convincing liars. People who can survive the jury selection process by making others believe they’re capable of making an unbiased judgment in a case where Trump is the defendant. The more fervently someone loves or loathes Trump, the greater the incentive to get onto the jury.

I wonder about the quality of the outcome that would be possible, if a jury like that were asked to decide.

Juries exist to allow ordinary citizens a chance to participate directly in the justice system. By their nature, they are imperfect. But if Trump’s case should be decided without a jury, would that be justice?

The entire idea of justice centers around treating everybody equally, but we know this is impossible. Rich, powerful people almost never serve jail time, despite often committing crimes that cause far more damage. I’ll be watching the outcome of this case carefully, not because I care one whit about whatever he did with Stormy Daniels, but because this case (and Trump himself) is a test of our judicial system. If the system fails that test, it bodes ill for any future cases of more importance, especially those that concern Trump’s attempts to attack the balance of democracy.