Any Democrats hoping to prosecute President Donald Trump for alleged crimes committed in the Oval Office after he leaves the White House can’t win and the process will “haunt American politics for years to come,” according to a prominent law school professor.
In commentary for The New York Times, University of Chicago Law School professor Eric Posner said the aim may be “to establish that the president is subject to the rule of law and to deter future presidents from breaking the law.”
The problem, he wrote, is “there is little evidence,” and a conviction, given what is known, “is all but impossible.”
Taking the arguments point-by-point, Posner dismissed the idea Trump could be charged with obstruction of justice during the probe by Robert Mueller, threatening to withhold aid to Ukraine unless the nation opened an investigation into Joe Biden and his son, or for mixing financial affairs with government business.
“All would face formidable difficulties in court,” he wrote.
“No former president has ever been prosecuted for crimes committed during his tenure,” Posner wrote. “Courts tread cautiously when new legal ground is broken, worried about upsetting reasonable expectations about what the law is. And judges interpret criminal laws strictly because the defendant’s freedom is at stake,” Posner asserted.
But there's another reason “Democrats cannot win,” he wrote.
“An investigation and potential indictment and trial of Mr. Trump would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom,” Posner wrote.
“Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.
“Prosecution based on technical statutes that have never before been applied to a president would convert this narrative into a powerful mythology that will haunt American politics for years to come.”
Should Democrats push forward, Posner wrote, “prosecutors may drop the case or narrow it down to nothing in response to adverse judicial rulings.” And if they get to trial, Trump and his lawyers “will turn the tables on the government and attack it for its partisan motivation,” Posner predicted.
"Acquittal would be Mr. Trump's crowning achievement, but even conviction would enhance his political standing with half the country by completing his martyrdom," Posner wrote. "If the goal of a trial of Donald Trump is to renew American faith in government, the effect will be the opposite."
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