Lurid Realities: Trump Implies That Selling Nuclear Secrets Is Treason

In this post, I noted that two passages from DOJ’s response to Trump’s Motion to Dismiss for Absolute Immunity — one pertaining to exchanging pardons as part of a quid pro quo, another describing otherwise official acts that would clearly be illegal — actually described things that may have or likely happened under Trump.

Here’s the latter discussion:

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record. [my emphasis]

Trump’s reply to that response addresses this second passage — at least, two items from it — in what it deems to be “lurid hypotheticals.”

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

Since Trump doesn’t include the entire list, here are the four items in it:

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

This footnote seems to suggest more than one and possibly all of these things — in a list including an order to the National Guard and an order to an FBI Agent — would be private acts.

That’s a consistent stance with the claim, in a footnote that concludes on this very same page, that Nixon’s suspected involvement in the DNC burglary as part of an attempt to win an election would also be a private act.

9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon. (Both of these points apply equally to President Clinton’s admitted perjury in the Paula Jones litigation, for which he was never prosecuted. Response, at 19.)

FWIW, I agree with this reply’s argument that DOJ doesn’t aggressively lay out the extent to which Trump’s alleged acts in the January 6 indictment are private acts. But if Trump concedes that Nixon’s suspected role in the DNC break-in to win an election was a private act, then it seems to concede that Trump’s own actions to reverse the outcome of an election he lost would also be a private act.

And Trump’s extension of private acts to this list of four “lurid hypotheticals” would seem to swallow up the entire argument about Presidential immunity.

But it seems to do something else.

There is nothing on that list resembling treason.

Accepting a bribe from Saudi Arabia to win a $2 billion contract for your son-in-law? Not treason.

Ordering the FBI to alter records to gin up an investigation against Joe Biden? Not treason.

Ordering 10,000 National Guard members to protect your mob as it attacks Congress? Not treason — at least not until it kicks off Civil War.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

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85 replies
  1. WilliamOckham says:

    We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics.

    His repeated demands that the National Guard be used to forcibly put down the BLM protests, including “suggestions” that the Guard could shoot to kill come uncomfortably close.

  2. ItTollsForYou says:

    I’ve found a treason for me
    To change who I used to be
    A treason to start over new
    and the treason is you.

    Apologies to Hoobastank

  3. Nutmeg Dem says:

    Very informative post. On a related matter, I cannot fathom that Trump gave out pardons and clemencies at the end of his presidency without getting something in return from at least the more wealthy ones. I also recall that Giuliani’s former employee Nicolle Dunphy sued him last May and made an explosive allegation that Giuliani claimed that he was selling pardons for 2 million to be split 50-50 with Trump. That case appears to have been quiet for awhile.

    • eyesoars says:

      I’m reminded of Penn Jillette’s comment about Dondald Trump: “However bad you think he is, he’s worse.” In this case, it seems the $2 million in exchange for a pardon is so far down on his list of ̶p̶o̶s̶s̶i̶b̶l̶e̶ probable transgressions that it’s in the noise.

      • Rayne says:

        Agreed — $2 billion laundered through a family member in exchange for greenlighting the horrific murder of a Saudi national who was an American journalist AND the spying on the journalist’s employer’s owner makes Trump’s transactional pardons look like chaff.

      • Peacerme says:

        I’ve been saying all along that trump will do things we cannot predict because he will do and say things we would never do or say.

        How ever low you think he might go will be lower than most of us could imagine.

        Psychiatrists and Therapists in America knew this. It’s worse than your brains can imagine. He will be one step ahead because he does the unthinkable-for most of us!

        [Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. Could you do me a favor and omit the URL in the URL field; you did not enter one with your first comment as “Peacerme” way back. Including one now causes your comments to require moderation. Thanks. /~Rayne]

  4. P J Evans says:

    None of those (hypothetical, I hope) acts are within the scope of presidential duties as laid out in the Constitution and the laws we have now. They’re done by dictators worldwide, though, and should be disqualifying for anyone running for President of the U.S.

  5. Alan King says:

    Trump acts like a mafia boss – for example Michael Cohen testified that Trump says he’s worth 1.5B more, so his staff inflates values, but in cross Cohen’s answer to “Did Trump ask you to inflate values?” is “No”. In EW’s post above, there are plenty of examples of this.

    Questions: how do prosecutors deal with this? Is this what RICO legislation is designed to address?

    @Rayne: switching my username from “Was_Alan K”. Not sure if this is the right way; sorry if it’s a pain

    [Thanks for the heads up about the username change. Make this one your final name, though. /~Rayne]

    • bmaz says:

      No, it is never RICO. People need to stop with the RICO garbage. This is but part of how dangerous the Fulton County bullshit is.

      • gruntfuttock says:

        ‘If Trump meant X and Cohen did Y did Trump object when Cohen did Y?’

        Not publicly because admitting that Cohen hadn’t done X would be an admission of guilt. Trump would just consign Cohen to ex-coffee-boy-dom.

    • Ithaqua0 says:

      Racketeering is a thing: https://en.wikipedia.org/wiki/Racketeering . RICO was not meant to, and IMO should not be used to, address Adam Smith’s “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the publick, or in some contrivance to raise prices.”

  6. jdmckay8 says:

    Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here.

    I made a note after reading that, how/why I thought everything in there was absurd. Even more than the “purely private conduct” statement, saying that renders them (eg: crimes by private rather than presidential conduct) “irrelevant” is even more absurd.

    You do an excellent job explaining why. “Yes, I robbed that bank. But I did it on my own time.”

    One thing almost omni-present when I think about this stuff: this is not just about Trump. He’s just the face, personality and gatekeeper tasked with implementing wishes of big dark money. There would be -0- Trump time as President without it.

  7. Sue Romano says:

    Trump’s curiously silent on his (and family’s) trademark crime of money laundering, or is that where the fraud case in NY ends up?

    • ExRacerX says:

      Trump was right about injecting bleach and shining light up our butts to fight COVID, wasn’t he?

      Oh, wait…

    • emptywheel says:

      Perhaps you should take this up with Trump’s lawyers, not the readers of this post, who seem to understand that the reference came from them?

  8. Challenger says:

    DA Willis, so far has four guilty pleas. Three of them Trump’s own Lawyers. DA Willis seems to be doing fairly well, and as well proving you can be a lawyer and a moron at the same time

      • Bay State Librul says:

        What is a “garbage” prosecution?

        [Moderator’s note: With more than 2,300 comments under your belt here, you know your comment is a form of JAQ-ing off/sealioning. You also know bmaz well enough not to need an answer. Don’t trash this thread further like this — move on. /~Rayne]

        • bmaz says:

          You can start with the one going on in Fulton County, by a local DA with no business doing it, but they happen every day in every state.

        • Jared Shoemaker Jr says:

          Are you at all assisting in the AZ state AG investigation into fake electors or the pressure campaign at all?

        • bmaz says:

          Nope. In fact my input was to leave to the Feds as to jurisdiction except specific state only crimes. But at least here it would be a statewide AG not a single local county attorney such as in GA.

        • HarryLeadbelly says:

          To be fair, to casual readers like me, bmaz seems to be treated with such kid gloves that it’s often impossible to push back, leaving his strident statements just sitting there as mysterious artifacts. I realize your rules tilt exceptionally heavily toward protecting your moderators, but you are hosting a very important site in a way that confuses or alienates a lot of readers, which is too bad. I know you won’t post this, but I will weigh in just this once for your consideration.

          [Moderator’s note: First, catch a clue and read the About page: bmaz is a contributor and moderator here, not just some dude given unusual privileges. Second, if you don’t like bmaz’s opinions, move on rather than clutter up the threads with complaints serving only to DDoS comments. Thirdly, surprise, Mr. Only-Two-Comments-To-Date, your comment was published. You may not get a third published if you make this off-topic whining a habit; you ignored the Moderator’s note to Bay State Librul which doesn’t help your cred. /~Rayne

        • HarryLeadbelly says:

          Not everyone is interested in cred. I’m only interested in the topics you guys cover and the overall mission of this site, not personalities. You might try reading my comment a little more carefully. Don’t worry, I have no interest in commenting again. Too much underlying disease around here.

          [Thanks for proving you don’t care about your personal cred by ignoring a moderator’s comments. Let me help you find the exit. /~Rayne]

    • sohelpmedog says:

      In evaluating whether Willis’s prosecution was appropriate, the fact that she obtained four guilty pleas, and likely more to come, is not a relevant factor in such an evaluation.

  9. N.E. Brigand says:

    On Twitter,* Marcy noted that it’s “Interesting that Trump suggests Bush might have been prosecuted NEITHER for torture (Trump promoted Gina Haspel) NOR for exposing a CIA officer’s identity (Trump, of course, pardoned Scooter Libby), but for lying us into the Iraq War.”

    * https://twitter.com/emptywheel/status/1717871862187729320

    This is unexpectedly consistent with something Donald Trump said in an interview circa 2008. Trump, who had offered reluctant support for the Iraq War when it started, said about five years later that he had had high hopes for Speaker Nancy Pelosi but was disappointed that she hadn’t impeached President Bush for lying the U.S. into that war.

  10. tje.esq@23 says:

    Supreme Court precedent interpretting Article III, Section 3’s Treason Clause requires, in addition to 2-witness testimony or a defendant confession in open court, that federal prosecutors prove the alleged traitor:
    1) performed one or more CONCRETE ACT(s) to aid a defined U.S. enemy
    a) that is not merely expression, but indeed CONDUCT
    b) that does, in fact, actually aid the enemy;
    and that the alleged traitor:
    2) purposefully intends to BETRAY the NATION, and
    a) not simply intends to “impair our [country’s] cohesion and diminish our strength,” but intends TO BE DISLOYAL to the United States, and
    b) which must be inferable from the criminal act itself and not based on the testimony of a witness who could “not meaningfully know a defendant’s internal state of mind.”

    https://constitutioncenter.org/the-constitution/articles/article-iii/clauses/39

    Should #2 above inform our debate here about what constitutes treason when performed by a former US President?

        • Pat Neomi says:

          This is fair–but only to a point. Marcy explicitly notes that all the things Trump’s lawyers imply may be treason are in fact NOT treason. At the risk of speaking out of turn, it seems like bmaz is frustrated with things like tje.esq@23’s comment that insist on trying to force the square peg of treason through the round hole that is Trump.

          The shit Trump has/may have done can be sufficiently terrible and/or illegal without needing to invoke treason to convey this.

        • tje.esq@23 says:

          trying to force the square peg of treason through the round hole that is Trump.

          Actually, THAT WAS MY POINT! I don’t think the word ‘treason’ fits very well here, and I highlighted element #2 to gently suggest it might be reasonable to (rebuttably) presume by role alone that a U.S. president, former or current, was not INTENDING to BETRAY his country.

          In the interest of brevity, I cut my last 2 paragraphs and link to an Atlantic article that inspired my post, thereby confusing (misleading ??) bmaz, my brevity-role-model, and others.

          Here’s what got cut —

          “The rarity with which treason has been successfully criminally prosecuted in US history should, perhaps, inform its frequency-of-use, because it’s often an ill-fitting descriptor of acts by the political elite, among others. It’s also a tough legal standard to reach, that former VP Aaron Burr’s war planning didn’t even meet. Think how a jury today, in our current partisan climate, might try to weigh 2a and how politically divisive it would be. Jury instructions based on sparse case law would not help.”

          “Is there room here for a more fitting, descriptive term(s)? No slight to Marcy here, I just found this argument by US War College Emeritis Professor Tom Nichols to be relevant here. It’s about a different, recently-overused-term, that, like ‘treason,’ might have been earnestly invoked to rescue us from the historical moment we find ourselves in, but its overuse comes at a cost.”

          https://www.theatlantic.com/newsletters/archive/2023/10/the-meaning-of-terrorism/675793/

        • SteveBev says:

          Err No she didn’t

          She quoted and highlighted the fact that Trump’s motion referred to

          “ the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. ”

          And later said ‘there was nothing on the list resembling treason’

        • ExRacerX says:

          *shrugs* Marcy brought up the topic both in the headline and in her post.

          If I claim an apple isn’t an orange, do I not bring oranges into the conversation?

        • Artzen Frankengueuze says:

          “If I claim an apple isn’t an orange, do I not bring oranges into the conversation?”

          Did you used to hang out in the old F1 live forum? There was an “apples and oranges” thread, and a person by the name of Racer X.

          Or perhaps it is just part of that “lattice of coincidence” Miller spoke of in Repo Man.

          Reply

        • Greg Hunter says:

          Important point as I intuited it to be a Freudian thing as the lawyers that wrote this got a look at what Trump had and immediately thought, then wrote, treason?

        • SteveBev says:

          It is very Trumpian to exaggerate prosecution statements and arguments the better to present himself as a victim of unjust process at the hands of ‘deranged thugs’ (TM)

          The claim of a ‘treason’ accusation here also serves the useful purpose – it is Trump’s own (unwarranted) social media smearing of Milley with such a charge, about which he insinuated the death penalty would be appropriate, formed part of the prosecution complaints resulting in the restriction on statements targeting witnesses.

          I immediately intuited it was an opportunity to muddy the waters gleefully seized on.

    • Pat Neomi says:

      It doesn’t make sense to consider #2 above if #1 doesn’t apply. The way you’ve presented it, #1 and #2 are conjunctive (not disjunctive), so one would have committed treason only if BOTH 1 and 2 have obtained (not if either/or have obtained).

      With respect to #1, then, what defined enemy has Trump aided? “An enemy, for purposes of the treason clause, is defined as only ‘subjects of a foreign power in a state of open hostility’ towards the U.S.” https://uclawreview.org/2018/10/15/treason-what-is-it/#_ftn6 , citing United States v. Greathouse, 26 Fed, Cas. 18 (C.C.N.D.Cal 1863)

      Given the fast and loose manner in which many people bandy about the terms treason and traitor, I understand bmaz’s frustration on this.

      • Fran of the North says:

        It is precisely that definition of ‘open hostility’ in a time of war that makes the use of ‘treason’ inappropriate.

      • tje.esq@23 says:

        Well said! Thanks for the cite!

        Cramer v. United States, 325 U.S. 1, 30 (1945), is where J. Jackson begins discussing the conjuctive requirement you keenly point out:
        “While to prove giving of aid and comfort would require the prosecution to show actions and deeds, if the Constitution stopped there, such acts could be inferred from circumstantial evidence. This the framers thought would not do.” Direct evidence of “adherence to the enemy” (disloyalty) is what the constitution also requires, he goes on to argue.

        Like other Jackson opinions, it’s a beautiful read!

    • earlofhuntingdon says:

      The concept of “enemy” is ordinarily interpreted as an enemy during time of war. Nothing we know about what Trump might have done would fit that definition. Marcy’s point is that Trump is worried about it, not the govt.

      • FL Resister says:

        This batch of Christo-fascist Republicans will let Trump have what he wants because he will not interfere with their grand plans.
        Trump is a useful tool for the Opus Deus and billionaire crowd and non democratic forces as well. So he is for rent, lease and sale to all bidders.
        It’s no wonder if he feels like a traitor.

  11. Doug Heath says:

    “Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here.”

    If a President commits such an act toward the end of his/her presidency but without enough time for the act to be adequately known and a House impeachment/Senate conviction to occur before the President leaves office, the process as described above would break down.

    • bawiggans says:

      …” would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution.”

      The grammar and context here suggest that Trump is asserting that for offenses committed within the perimeter of the president’s duties impeachment by the house and conviction by the Senate are prerequisites to prosecution.

      • Doug Heath says:

        Agree. From what I have read, impeachment by the House and conviction by the Senate of a former official who did not resign is without precedent and the feasibility of such action is unknown.

      • BRUCE F COLE says:

        Here’s clause 7 in its entirety:
        **Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.**

        Trump’s twisting of that clause is perverse because there’s absolutely no predication there. It only states that legal remedies for offenses for which a President has been impeached and convicted would not be precluded by that Senate conviction.

        To put it another way, it’s a “not only this can happen, but that as well” statement, not a “that can only happen after this happens” statement. It’s like English is a foreign language to these idiots.

    • earlofhuntingdon says:

      More fundamentally, impeachment is a civil remedy. Penalty for conviction is removal from office and possibly a prohibition on holding federal office again. The criminal justice system is entirely different, including different proof standards and penalties.

  12. harpie says:

    TRUMP’s footnote 10:

    10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”).

    It’s interesting that in that first hypothetical, TRUMP left out the words “orders the National Guard to” which would definitely be “within the outer limits” of a President’s official duties.

    • harpie says:

      TRUMP, footnote 9:

      9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon.

      • earlofhuntingdon says:

        Ignores the majority of contrary thought and the text of Gerald Ford’s pardon, carefully vetted by White House Counsel, following the thinking of the day, including that of Yale Law School-trained Ford, which explicitly contemplates Nixon being subject to potential prosecution. Its pertinent part:

        As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.

        As you point out, it also ignores that most or all of Trump’s conduct at issue here was personal, not presidential.

  13. Molly Pitcher says:

    When I can’t sleep and spend the time ruminating, this always comes to mind:

    “There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”

    Donald Rumsfeld

    A despicable human being, but an accurate statement, applicable to my anxieties.

    What has Trump done that we don’t know about ? I want to have been a fly on the wall in the room where the conversation happened between Trump and Putin in Helsinki. The look on Trump’s face, the change in his demeanor when he approaches the presser after his one on one with Putin, haunts me.

    What trouble are we in that we don’t even know about ?

  14. CaptainCondorcet says:

    As always, an informative take on a topic worthy of such analytical deep diving as Dr. Wheeler does best…. but I cannot shake a feeling that the inflammatory t-word (censored for certain people’s sensibilities since Congress has not currently declared war against a foreign power) was used in the briefing just so that it could get picked up. Since the likelihood of any of the “faithful” looking behind the curtain approaches zero, this then lets the far right-wing complete the b*llsh*t loop and allow their alt-media sources to talk about “dangerous left-wing accusations”.

  15. Old Rapier says:

    I was totally confident the altered note would never be addressed by this DOJ, once we knew it would be a Democratic administration, not that anyone would ever ask them to. Nobody wants to get within 2 degrees of questioning former Justice Minister G̶ü̶r̶t̶n̶e̶r̶ Barr. He of the unitary executive theory, “If you cannot recognize the will of the leader as a source of law, then you cannot remain a judge.” school of justice. No biggie really.

  16. David F. Snyder says:

    … Those documents have never been located. …

    … that we know of (?). I’m asking, would the general public be told at this point if it was found those missing documents did get passed into the wrong hands?

    • earlofhuntingdon says:

      Potential for perjury and/or violation of his release conditions for Weisselberg. But As Rubin points out, James may be more concerned about the Trump Org and its vendors’ failures to disclose subpoenaed information. Engoron has apparently asked the Trump Org monitor, Barbara Jones, to report to him about the company’s IT systems regarding legal compliance, which seem, um, to have a few gaps in them.

      Unless Engoron’s order regarding the appointment of a receiver is overturned on appeal, none of that bodes well for how thoroughly the receiver will audit Trump’s companies as they prepare to liquidate them – and the Trump’s presence in NY real estate, which would be a well-deserved end of an era.

  17. Matt Foley says:

    Off topic:
    How are search results sorted on this site?

    Sometimes they’re newest to oldest; sometimes not.

  18. wetzel_rhymes_with says:

    < Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict.

    That's a good joke.

    • BRUCE F COLE says:

      To them it is. It’s a knee slapper and they haven’t stopped laughing yet.

      Here’s another joke to choke on: pardons.
      ___________________________________
      Proposed 28th Amendment to the US Constitution:

      No Pardon shall be issued by the President that would be bestowed on any political, personal or professional associate, family member, or benefactor; nor shall any Pardon be issued in consideration of any favor or benefit, direct or indirect, to the pardoner. Pardons shall only be issued for specific convictions of specific individuals.

      Any pardonee who is subsequently convicted in a court of the United States, or any State or Territory thereof, for another crime shall be then subject to the remaining penalty attached to the conviction(s) for which any prior State or Federal Pardon may have been received of them. Any criminal conviction attached to any Pardon thereby rescinded shall be deprived of further Appeal.

      These strictures attached to the power of the Pardon shall be equally attached to that of all States and Territories of the United States.
      ______________________________

      Steve Cohen of TN (Dem) has several times introduced something like this:
      https://www.congress.gov/bill/117th-congress/house-joint-resolution/4/text
      …but it’s not exactly what the draft above contains, which is broader in scope.

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