In all of the analysis of the various indictments of Donald Trump, one obvious fact has gone unspoken. I shall speak it: The United States is in a constitutional crisis.
So what, exactly, does that mean? It means that the country is facing a political situation that is not explicitly addressed in the written Constitution and for which few, if any, legal precedents or democratic conventions exist (the unwritten constitution).
It means there are a series of questions that have never been contemplated and have no clear answer, such as:
Can a judge order a former president and current candidate to refrain from commenting on his case? If Trump doesn’t comply, will he be held in contempt?
Could the judges of the various cases against Trump impose a collective trial schedule so onerous that the former president, current candidate, and likely nominee could not effectively campaign? How would his supporters react to that? Would they feel a certain degree of persecution themselves?
In the unlikely event Trump is convicted before his all but certain nomination, would he be allowed to remain free until the election? If not, would he be allowed to campaign from a prison cell? Or would the sentence be to house arrest? Or probation? If it is just house arrest or probation, would Trump’s opponents accept the former president lounging around Mar a Lago as adequate punishment?
If Trump were elected (highly unlikely) and not yet convicted, could he force his attorney general to drop the federal charges (the reader might remember the outrage when former Attorney General Jeff Sessions simply recused himself from the Russia investigation or when Trump fired then-FBI Director James Comey)?
If a convicted Trump were elected, could he pardon himself of the federal convictions?
Assuming Trump is elected and the state trials have not begun, could state attorneys force a sitting president to appear in court, or would he be tried in absentia?
And what of a state conviction? Could a sitting president be forced to serve time in some dingy goal in New York or Georgia? Could state courts force a sitting president to do anything?
What will be the Left’s reaction if Trump beats all the charges? Will its foot soldiers again resort to righteous violence, the kind of which we saw throughout the Trump presidency?
More broadly, can the concept of the “Loyal Opposition,” a tradition developed over hundreds of years of English jurisprudence and passed on to us, survive an assault by the full panoply of state power directed against the leader of a legitimate and significant political movement?
Will every instance of political maneuvering and strategizing—which very often contemplates actions that border on the unethical, and even the illegal—be open to prosecution by some ambitious district attorney somewhere who thinks she has a case?
And then there’s the ultimate “what if”: If Trump, particularly a convicted Trump, legitimately wins the election (again, highly unlikely), will the Democrats accept the outcome, or might (with the backing of legislators and perhaps even military leaders) President Biden insist that—in the interests of democracy—he simply must stay in office until a more acceptable resolution can be reached.
The possible scenarios are endless. We have some precedent with Paula Jones’s suit against Clinton, but that was a civil proceeding, not a criminal one.
There is also the parallel investigation of the Biden family which could lead to the current president’s impeachment. Can the country survive an election pitting an impeached president against his indicted opponent, who is also a former president?
It may just seem like a circus now—akin to the OJ trial or the Clinton-Lewinsky scandal—but make no mistake; America is staring into the abyss. Our constitutional crisis will be impossible to deny once the courts, or Congress, or the DOJ, or perhaps even the sitting president intervenes where the law and custom are silent.
J.S. Scifo is a North County resident who has worked in national and state politics.