Last week, I discussed Trump’s threats to sue his critics and the possibility that, when it came actually to filing a lawsuit, his lawyers’ overriding duties of professional responsibility became a restraining influence. Even so, the threats themselves — like those Trump reiterated on October 22 to sue any and all accusers who have or will come forward to confirm his boasts about being a sexual predator — have a chilling impact. If an accuser with a truthful story remains quiet, Trump wins without firing a shot or paying a filing fee.
Anyone who doubts the effect of even an idle Trump threat should consider the American Bar Association’s recent actions. The New York Times reports:
“Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a ‘libel bully’ who had filed many meritless suits attacking his opponents and had never won in court. But the bar association refused to publish the report, citing ‘the risk of the A.B.A. being sued by Mr. Trump.'”
The Media Law Research Center posted the report.
If candidate Trump can achieve that type of chilling effect on the nation’s largest professional association of attorneys, imagine the impact of a President Trump who would select the country’s top law enforcement officer, namely, the attorney general of the United States.
Even Worse Threats
“You’d be in jail.”
Donald Trump interrupted Hillary Clinton to deliver that warning during their second debate. Moments earlier, he’d provided the context.
“If I win,” he said, “I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”
As Trump landed another blow against the rule of law, his supporters in the audience howled, “Lock her up” — a standard chant at Trump rallies.
The process for appointing a special counsel doesn’t give any president the power Trump says he’d wield. The last president to have any influence over a special prosecutor was Richard Nixon. Esteemed Harvard Law Professor Archibald Cox had the job, and it didn’t end well for Nixon or the country.
When Cox subpoenaed the president’s Oval Office tape recordings, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused, so Nixon fired Richardson. When his successor, Deputy Attorney General William Ruckelshaus, likewise refused to discharge Cox, Nixon fired him, too. After Solicitor General Robert Bork was sworn in to replace Ruckelshaus, he executed Nixon’s command.
Eventually, the U.S. Supreme Court ordered Nixon to release the tapes. Nixon’s own voice proved his personal involvement in efforts to cover-up the 1972 burglary of Democratic National Committee headquarters – the Watergate break-in. The incriminating evidence led the House of Representatives to issue articles of impeachment. When it became clear that fellow Republicans in the Senate would provide enough votes to convict him, Nixon became the first U.S. president to resign his office.
The “Saturday Night Massacre” that cost Richardson, Ruckelshaus, and Cox their jobs led Congress to enact the Ethics in Government Act of 1978 that removed the president from the independent prosecutor process. In 1999, the legislation lapsed under a sunset provision. Today, the Code of Federal Regulations – which has the force of law – governs. The decision to appoint a “special counsel” to conduct investigations or prosecutions of particular matters on behalf of the United States belongs to the attorney general, not the president.
Nixon’s appointees, Richardson and Ruckelshaus, lost their jobs because they refused to do Nixon’s bidding. Trump’s attorney general would have to embrace his illegal post-election assault on a political adversary. To fulfill his banana republic-like promise to imprison a political opponent, Trump would need someone who bowed unquestioningly to his wishes.
Who might use the power of high office for such retribution? There’s an obvious candidate: New Jersey Governor Chris Christie. After all, at the Republican National Convention, he prosecuted the case against Hillary Clinton and invited the audience to roar, “Guilty.”
As for a willingness to use political power for payback, Trump has a favorable view of Christie, too.
“He knew about it,” Trump said during a Republican presidential primary rally in December 2015. “He totally knew about it.”
During a December 2013 news conference, Christie had staked out a different position: “I didn’t know anything about it.”
The “he” was Christie. The “it” was Bridgegate.
On September 9, 2013 – the first day of the school year in Fort Lee, New Jersey – commuters to New York City found themselves in a traffic jam on the George Washington Bridge. Without advance notice to local officials, the Port Authority of New York and New Jersey reduced from three to one the number of lanes and tollbooths available to vehicles accessing the bridge from Fort Lee.
Even by New York standards, the resulting gridlock on the world’s busiest bridge was monumental. Some motorists were stranded for hours. Public health and safety became serious concerns. Was it just a coincidence that the Democratic mayor of Fort Lee had refused to endorse Christie for a second term as governor?
As the debacle developed, what did Governor Christie know and when did he know it? Senator Howard Baker had made a similar question famous during the Watergate hearings, and it still resonated.
The next installment in this series will take a deeper dive into the criminal trial that has inflicted significant collateral damage on Christie — the head of Donald Trump’s presidential transition team.
Loved the blog as always. I think Trump may surpass Nixon in his effect on the climate of the country.
Lawyers everywhere should be ashamed and outraged that the ABA is so gutless.
I posted the Times story on the ABA’s Facebook page and simply requested they comment. They deleted it instead.