Is it Fair to Prosecute Donald Trump?

When we say “no one is above the law” in America, we know we’re kidding ourselves. A great many people are quite obviously above the law. For example, Senator Rick Scott, to pick someone in the news, was part of one of the largest Medicare frauds in the history of the United States. He didn’t go to jail for stealing billions from the taxpayers; he parachuted out of his company with three hundred million dollars in stock.

To choose another example, take the Sackler family. Architects of the opioid crisis, they made billions by causing mass death through the marketing of oxycontin. Although they knew what they were doing, they have been permitted to keep most of their billions, and none of them will spend a day in jail.

Almost fifteen years ago, fraudulent banking and lending practices nearly destroyed the United States’ economy, costing millions of ordinary people their homes, their jobs, and their savings. Not only were the main architects of the disaster not prosecuted, they were bailed out by the taxpayer and received generous bonuses.

For sufficiently wealthy people, obtaining millions and billions by theft or fraud is not treated as “crime.” Those who steal small sums, or baby formula, go to jail. Those who cheat taxpayers, or homebuyers, or who market deadly products to make generational fortunes live above the law.

None of this has been lost on our former President. His tax evasion, consumer frauds, and apparent money-laundering activities have yet to be prosecuted or punished over the forty years he has been doing these things. When he says the FBI treated him very “unfairly” by executing a search warrant on his beach resort, he might really feel that way.

But the current investigation appears to be into a different brand of crime. If Trump bilks people out of their tuition at something called “Trump University” the people at the Department of Justice or the CIA don’t feel too threatened. He may have committed a crime against someone, but it was not a crime against the United States.

Of course every federal crime is listed in the U.S. Code as an “offense against the United States,” but that language is mostly figurative. Threats against the United States itself, though, activate a very different region of the government’s brain than ordinary crimes do. Attempt to blackmail the Department of Justice with our country’s own secrets, or with threats of violence, and you’ll see that region light up like the Fourth of July.

The search at Mar-a-Lago demonstrates unequivocally that the government considers Trump’s crimes to be “against the United States.” Separate from whether the search was warranted, it was, in fact, unprecedented. There is simply no way it would have been allowed over anything that could be characterized as merely technical, or in the nature of a civil dispute.

David A. Graham has explained that whatever you’ve found out about Trump so far, you can be sure the truth is worse. There are two main things one can do with illicitly-held government secrets — sell them for money, or use them for blackmail. We can be confident Merrick Garland and Chris Wray think Trump has done one or the other, but if Graham is right this time, it’ll turn out to be both.

Short of actually being the President, you can’t get away with those kinds of crimes even if you're rich. Trump knows this.  And that is probably why, as I was writing this, he issued a demand for a new election to be held “immediately.”