The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


WTF is He Doing? [with Today's Quiz]

When do we decide that Trump's contempt for the law has crossed the line?


Yesterday, on the opening day of Paul Manafort's criminal trial, our President—the chief law enforcement officer of the United States—publicly described the investigation that led to Manafort's indictment as "a TOTAL HOAX" and a "witch hunt"; described the head of the prosecutorial team as "totally conflicted" and "a disgrace to USA"; and called the defendant a "Reagan/Dole darling" who "worked for Ronald Reagan, Bob Dole and many other highly prominent and respected political leaders."

The grotesque inappropriateness of these comments by our Chief Executive concerning an ongoing criminal trial should be obvious to all. It's never happened before.* I cannot even imagine what the outcry, and the scandal, would have been had any prior president tried it. It violates some of the deepest and most fundamental principles of due process, and of separation of powers, principles that are held dear by everyone reading this post, whatever their position on immigration, or the Wall, or tariffs, or tax cuts, or EPA regulation: the judiciary has the case, and it will be decided based entirely on the evidence and the arguments presented in the courtroom, weighed by a jury who are not to be cajoled or influenced or threatened by events taking place outside the courtroom. Least of all by comments from the capo di tutti capi, from the very top of the federal law enforcement pyramid, suggesting that even though (his) prosecutors think that Manafort is guilty, the capo doesn't, and would be very pleased if the charges went away. Why doesn't he just offer the jurors a personally-guided tour of the West Wing if they acquit Manafort—that oughta do the trick, no?

*At least, I am not aware of any prior president commenting, in public, about a criminal trial then underway, let alone publicly praising the defendant and disparaging his own prosecutorial team. But perhaps I am overlooking something. So that's today's quiz: if you can come up with a prior historical example of such a thing, I'd be interested to hear about it.

Part Two of the quiz (extra credit) is: can you come up with any plausible, reasonable, justification for these tweets? Any reason to think it is not what it appears to be: an attack on the federal criminal justice system?

Sarah Sanders, coming to Trump's defense, said "He's only expressing his opinion." I'm sorry, Ms. Sanders; there are some things the President does not get to express his opinion about, on account of the role he plays in the constitutional scheme, and the progress of an ongoing criminal trial is one of them.

I know, I know—"It's just Trump being Trump. No need for hysterics. It's no big deal, we've seen it all before, etc. etc."

The tweets are worth reproducing in full:

"This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!"

"Paul Manafort worked for Ronald Reagan, Bob Dole and many other highly prominent and respected political leaders. He worked for me for a very short time. Why didn't government tell me that he was under investigation. These old charges have nothing to do with Collusion—a Hoax!"

"Russian Collusion with the Trump Campaign, one of the most successful in history, is a TOTAL HOAX. The Democrats paid for the phony and discredited Dossier which was, along with Comey, McCabe, Strzok and his lover, the lovely Lisa Page, used to begin the Witch Hunt. Disgraceful!"

Put aside the vulgarity ("the lovely Lisa Page"). Put aside the eighth grade syntax and Capitalization (do we really have a president who does not know how to use capital letters?). Those are just distractions—possibly placed there intentionally just to distract us, possibly not. But no matter. How have we reached a place where we can shrug off comments like this by our president? I understand that he has demonstrated his contempt for the judicial system many times before; he is, after all, the "Lock Her Up" (without an indictment, let alone a trial) president, and the "a Mexican-American judge shouldn't hear the case against my fraudulent Trump University" president.

But isn't there a line? And hasn't he crossed it? And what should we do about that?