Republican tide turns against Trump – now let’s see if he loses protection against prosecution

Is the Republican Party, at least at the Congressional level, preparing to dump President Donald Trump after he departs the White House on January 20?

Until two days ago, no-one in the GOP would congratulate president-elect Joe Biden.  After the Electoral College effectively elected Biden on Monday with 306 votes to 232, however, the dam started to break.

First, Senate Majority leader Mitch McConnell, until then a hard-line Trump advocate, pronounced on the floor of the Senate that due process had occurred and Biden was the appointed president, to be sworn in on January 20.

Then in a conference call with Republican senators (they control the Senate) he and other seniors warned their colleagues against trying to further challenge the result when Congress meets to ratify the vote.  Two senators, John Thune and Roy Blunt, spoke.  They argued it would be a bad vote for senators running in the mid-term 2022 elections.  It’s no surprise that both are then up for re-election. 

The White House still can’t manage to pronounce the obvious. Press secretary Kayleigh McEnany declined to say whether President Trump accepted the Electoral College vote.

“Yesterday’s vote was one step in the constitutional process,” she said.

Ever the tweeter, Trump responded with a tweet on Wednesday:

“Mitch, 75,000,000 VOTES, a record for a sitting President (by a lot). Too soon to give up. Republican Party must finally learn to fight. People are angry!”

Another to break the silence was Senator Shelley Moore Capito, of West Virginia, who told reporters there was encouragement on the GOP call on Tuesday to accept the unfavourable presidential election result and “try to do what’s best for the American people, which is to look forward.”

She added:

“There wasn’t any pushback to it, there wasn’t anybody saying, ‘oh wait a minute.’ ”

Trump is expected to live at his Mar-a-Lago resort in Florida. Now his neighbours there are threatening legal action to block him using local government rules citing a risk to their safety.

He will leave the White House facing the prospects of personal criminal liability unlike any president since Richard Nixon, who was saved by a pardon granted by his successor, Gerald Ford

Trump, who will depart still complaining he was beaten by a fraudulent election, is unlikely to receive any similar such clemency from Biden.  His presidential reign has been marked by sustained abuses of convention, guidelines and the US constitution, legal and ethical norms, and the power of the president.

This raises the question of whether a former president can or should be prosecuted?

While in office, Trump has been protected by the Department of Justice.  Under Attorney General William Barr, who is the latest Cabinet level official to resign or depart under his own steam (take your pick), the department blocked attempts by the Manhattan district attorney, Cyrus Vance, to conduct a criminal investigation into possible tax fraud by the president.

No former president in US history has faced prosecution. Trump’s former lawyer, Michael Cohen, has testified Trump had in the past inflated or deflated the stated value of his real estate depending on whether he was seeking a bank loan or filing his taxes, raising questions of possible fraud that Vance’s office is already probing.

Trump’s conduct during the 2016 campaign has also been the focus of a federal investigation, specifically by prosecutors in New York who obtained the conviction of Cohen on campaign finance charges for paying hush money to a porn star who claimed an affair with Trump.  In that case, the president was referred to as “Individual One”.

Biden has distanced himself from these questions, stating repeatedly that he will maintain the independence of Justice. He has pledged to restore the walls that previously existed, beginning with a steadfast refusal to say one way or the other whether he thinks Trump should be investigated.

It is possible that nothing will happen at the federal level, leaving any action in the hands of state prosecutors in New York.  Trump may resign at the last minute, transferring power to Vice President Mike Pence who could then grant Trump and his family a pardon for federal (but not state) offences.

A further consideration is that when the Senate votes on Trump’s nomination for Attorney General, they will likely insist on an undertaking of no prosecution in exchange for supporting the nominee.

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