President Trump spent the weekend decrying the “coup” against him, demanding the imprisonment of federal investigators, and calling for retribution against those who mock him. Below the surface, though, a more serious argument is taking shape. While Congress is opening probes of a wide array of apparent crimes by Trump and his family business, the president is not likely to cooperate or accept the legitimacy of the investigations at all.
A recent Wall Street Journal op-ed by David Rivkin and Elizabeth Price Foley is a blinking red sign of what’s to come. Rivkin, a veteran of the Reagan and George H.W. Bush administrations, is perhaps the state-of-the-art conservative-movement legal apparatchik, regularly published in the Journal and quoted in the mainstream media arguing that the Constitution demands whatever the party happens to need at any given moment. Rivkin’s latest essay blazes a new trail in Trump’s legal defense. It asserts Congress has no right whatsoever to investigate anything Trump did before assuming the presidency.
Trump of course faces massive political and legal vulnerabilities not only for collusion with Russia during the presidential campaign, but also secretive financial ties to Russia and other authoritarian states, tax fraud, campaign finance violations, abuse of a pseudo-charitable foundation, and embezzlement of inaugural funds. This is a non-exhaustive list of potential crimes that precede Trump taking the oath of office. Rivkin and Foley argue that Congress cannot investigate any of these things.
The obstacle to this claim of legal impunity is the legal precedent in the case Clinton v. Jones. This was a lawsuit brought by Paula Jones, against President Clinton, and which created the precedent that presidents can be sued for behavior that occured before their presidency. Conservatives enthusiastically supported this precedent when the target was a Democrat. Indeed, the notion of investigating the president’s pre-presidential conduct drew rabid support on the right. The Wall Street Journal published so many editorials demanding investigations of Whitewater (a Bill Clinton Arkansas-era deal) that the books republishing them ran well over 500 pages. After eight years fanatically hounding a president over a land deal, and producing no evidence of a crime, it is astonishing to see the Journal turning around and insisting pre-presidential conduct should never be investigated at all.
What is the difference between the cases of Clinton and Trump? Rivkin and Foley’s explanation is hilarious. They argue that the investigations of Clinton were found not to threaten “interference with the President’s duties.” By contrast, the investigations of Trump do:
Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.
In other words, Trump can’t be investigated because he is such a massive crook. The president could function when he was defending one private lawsuit and one financial investigation, but not when he is defending a series of elaborate global rackets. It’s just a simple matter of time management. Trump can’t do his job if he has to defend all these crimes.
Rivkin is probably correct that, when the Supreme Court predicted defending against a lawsuit would not interfere with a president’s official conduct, it was not anticipating that one day the president might be a professional money launderer. Still, it seems just a bit unfair that the law would allow Congress to investigate a president for what turned out to be a nonexistent crime while forbidding it to investigate a president for decades worth of extremely serious crimes, some of which, by rendering him indebted to hostile foreign states, compromise national security.
It seems awkward that the rationale for this double standard is that the president is just too darn busy to cooperate with any investigations — even Rivkin and Foley say, to turn over his tax returns. It seems especially unfair that the too-busy defense should be made on behalf of a president who has a policy of holding no meetings before 11 a.m., who binge-watches hours of cable television and frequently livetweets his responses, who visits his golf clubs constantly and who recently shelled out $50,000 for a golf simulator for the White House.
Yes, congressional investigations of Trump’s misdeeds and vulnerability to foreign blackmail will cause him to miss some of his favorite shows. Is that Rivkin’s real concern?
I ask because Rivkin has previously argued that Trump is under no obligation to divest or pause his business while serving as president; that Robert Mueller cannot issue a subpoena to compel Trump’s testimony; that Trump can thwart any investigation by pardoning all his accomplices and himself; and that Mueller’s investigation is so biased it must be shut down.
Given his belief that Trump is free to profit from his position while in office, and that both the Department of Justice and congressional investigations into any criminal history are illegal or illegitimate, it seems to leave very few avenues of legal accountability. Why, it’s almost as if Trump’s legal supporters want him to be able to get away with crimes!
