President Loophole on Trial

February 8, 2021

“I don’t want to know what the law is, I want to know who the judge is” — Roy Cohn

Cohn was a New York lawyer who mentored two of America’s most notorious political figures — Donald Trump and Joseph McCarthy. Both these men went on to dominate American politics, for four years apiece while in positions of public trust, by circumventing laws, rules, norms, and regulations.

This week, Cohn’s prize pupil — President Loophole — is on trial in the Senate for inciting an insurrection. And Trump’s done his homework and knows all about who the “judge” is: It’s the 100-member Upper Chamber of Congress, or the Senate, which acquitted him in a similar trial one year ago for abuse of power and obstruction of justice.

The Constitution’s impeachment process is not juridical, but political. The “judge” and “jury” are the same, and all are politically biased. Many will cast votes based on the evidence and the law, but many will vote in the interests of their political futures or personal safety. Acquittal once more is all but guaranteed unless television coverage sways public opinion dramatically.

For Trump, this is Deja vu, and simply another version of a career built on shady tax abatement deals, zoning variances, legal dodges, sweetheart deals with city hall and union bosses, lavish gifts, or threats delivered by others on his behalf. Naturally, his focus hasn’t been on his defense. He’s not preparing to testify. He’s been busy on the phones and in-person tampering with the “jury” to make himself undefeatable.

The prosecution will present compelling video and digital evidence linking him to the riot. But principled legal experts and evidence on television, may not suffice. The team needs Roy Cohn tactics to win, and here are a few that should be tried, even if doomed to failure. (Cohn’s playbook was to never let the law or the facts get in the way of a good strategy. Just do it and see where it goes.)

For starters, the Democrats must demand that the 45 Republicans, who voted against the trial on the basis that it was unconstitutional because Trump is out of office, must recuse themselves as jurors. If they do not, this will be publicized and de-legitimize the process. If some or all recuse themselves, then only five Republicans would remain, plus 50 Democrats and Independents, a conviction would be certain. The Cohn loophole here? Impair the “judge”. The constitution states that two-thirds of the Senators who actually vote can convict which means that 45 recusals would lower the grand total to 55 and a two-thirds majority of that would be only 37 votes.

Of course, that’s pie in the sky, but Democrats should also insist on an impeachment vote by secret ballot to protect the Republicans who are too frightened to vote for conviction. Guesses are that up to 30 might join the Democrats to convict Trump, but won’t in public. This suggestion has been rebuffed by the Republican leadership, of course, but a secret ballot request can be introduced before or anytime during the trial. The Cohn gambit? The vote on a secret impeachment ballot needs only a majority vote approval or 51 Senators and Democrats can pull that off. Even if disallowed, Republicans will be tarnished.

Another potential loophole involves the word “present” in the law, according to a Washingtonian piece. “The Constitution doesn’t indicate that removal from office requires two-thirds of the Senate. It requires two-thirds of senators present for the proceedings.” This means that if 16 Republicans skip the vote by not being physically present when it is taken, the total tally will amount to 84 and the two-thirds threshold will be reduced to only 56 votes. To pull this off, the Senators must be absent because if they merely abstain, their vote will be recorded as a “not guilty”. So, Democrats should get busy convincing or co-opting or pressuring at least 16 Senators or more to disappear that day. The President is missing in action, why shouldn’t they?

Finally, when (or if) Trump is acquitted, his foes must immediately table a recommendation, based on the 14th Amendment, to bar him from holding office again for engaging “in insurrection or rebellion”. Cohn loophole? He only has to be engaged, not the ringleader, in such seditious events, and, besides that, the Constitution is silent as to whether a simple majority for this is required or not. If not, it’s a slam dunk.

Whatever the verdict, America’s Constitution needs a major refresh. A lame-duck cannot be allowed to remain in office for 72 days without supervision. Supreme Court judges cannot be replaced just before an election. Public officials cannot get on a ballot without disclosing all their financial, tax, and health records. Presidents cannot appoint “acting” officials indefinitely in order to circumvent Senate confirmation procedures. Presidents cannot order government employees to ignore Congressional subpoenas. And, most of all, no President should be immune from criminal charges as stated in the 1973 Department of Justice memo concocted during the Nixon era.

This memo singlehandedly prevented Robert Mueller from recommending charges be laid against Trump. A veteran loophole-spotter, Trump was well aware of his blanket immunity … even in 2016 when he told an Iowa campaign rally that he could “shoot somebody on 5th Avenue in New York, and wouldn’t lose any voters”. As his lawyer later stated, he wouldn’t go to jail, either.

Trump’s moral compass has always been Cohn’s Code and consists of three tenets: Never settle or surrender; counter-attack and counter-sue immediately; and no matter how much trouble comes along always claim victory and never admit defeat. This is the mantra of all hustlers, and is why loopholes are for sale across America and why laws must be toughened.

Hopefully, the trial will be brief. If Trump is acquitted, he will crow about vindication. If he’s censured, he’ll crow about cancel culture. So, sharper measures will be required to mute or purge President Loophole. If Cohn were around — fighting against, not with Trump — his advice would be that, if he’s acquitted, Democrats must help local authorities lay charges against him and all participants in the Washington riot. Then they must attack the brand. Perhaps Congress should name a prison, instead of a bridge or a college, after Trump. Maybe that would shut him up for a while.

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Note: Photo of Cohn and Trump from Vanity Fair
Cartoon from The Baltimore Sun

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