BATON ROUGE – Facing criminal indictments in connection with a hush-money payment to an adult-film actress and his efforts to overturn the result of the 2020 US presidential election, Donald Trump claims that, as a former president, he enjoys blanket immunity from prosecution. The US Supreme Court will now decide if he is right. US Special Counsel Jack Smith’s filing to the Court makes a convincing argument that the weight of history – and three precedents, in particular – invalidate Trump’s claim.

The most obvious precedent is the Watergate scandal, which led to an impeachment inquiry and President Richard Nixon’s resignation from office in 1974. Smith stresses that President Gerald Ford’s pardon of his predecessor fully acknowledged “criminal liability,” and that Nixon’s acceptance of the pardon represented a “confession of guilt.” Without Ford’s pardon, Nixon likely would have faced criminal prosecution. If absolute immunity is an inherent power of the presidency, as Trump claims, no pardon would have been necessary.

The other two precedents, Smith argues, are landmark cases more than two centuries apart: the 1807 prosecution of Thomas Jefferson’s former vice president, Aaron Burr, for treason, and the Supreme Court’s decision in Trump v. Vance in 2020.

In the Burr trial, which took place around two years after the defendant left national office, Chief Justice John Marshall weighed the charge that the defendant had tried to foment a rebellion in the western states in order to form his own country. In fact, Burr’s actual purpose had been to organize a filibuster (a private military force) to exploit land claims in the event of a war with Spanish Mexico. The so-called “Burr conspiracy” was based on rumors peddled by biased newspapers; in the end, Burr was acquitted.

But the more recent precedent makes Burr’s case newly relevant. In Vance, the Court rejected Trump’s efforts to quash a subpoena and avoid handing over his financial records in the hush-money case for which he is now on trial in New York. Let that sink in: the Supreme Court already shot down Trump’s claim of immunity four years ago.

According to Smith, United States v. Burr and Vance are the “actual historical bookends” of the current prosecution. Each confirms “the principle that presidents are amenable to judicial process and that no person is above the law.” In Vance, Chief Justice John Roberts wrote the majority opinion and placed much emphasis on the Burr precedent. During the 1807 trial, Marshall had issued a subpoena duces tecum to the sitting president, which meant that Jefferson had to hand over certain requested papers, and possibly appear in court. In the end, as Roberts concluded in Vance, Jefferson was shown to be subject to the law.

Smith’s brief doubles down on this precedent, quoting Marshall in the Burr case: “The president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” The principle of rotation in office – that a president served a term of four years – is one of the most fundamental limits on executive power. It ensures that a president in no way resembles a monarch, who always remains above and apart from the people. Only monarchs can claim absolute immunity; US presidents’ powers and titles are only temporary.

Nor does the significance of the Burr case stop there. Burr had left office as vice president when he was put on trial, and it was Jefferson, in his second term, who led the charge against him. In the 1800 election, Jefferson and Burr were the candidates vying to replace the sitting president, John Adams. Unlike today, the Constitution did not distinguish between president and vice president in the Electoral College; instead, the candidate who received the most electoral votes became president, and the second highest vote-getter became vice president.

Four years earlier, Jefferson had opposed Adams, and ended up serving as his vice president. In 1800, Jefferson and Burr received the same number of votes, making them both “president-elect” until the tie was broken in the House of Representatives.

The problem was removed in 1804 with passage of the Twelfth Amendment, establishing the familiar presidential/vice presidential ticket. That same year, Jefferson exchanged Burr for a much older and less dynamic vice president, New York Governor George Clinton.

As imperfect as it was – and is – the Constitution never granted a president or vice president absolute immunity. To do so would be an admission that the executive is nearly an “elective monarchy,” which the founders, with few exceptions, would never have tolerated. At the Constitutional Convention, Smith notes, James Wilson of Pennsylvania, before becoming an associate justice of the Supreme Court, stated clearly that every president was subject to criminal prosecution for his private misdeeds, while impeachment applied to his “public character” or violations of his official duties.

From whatever angle one views the Burr trial, the constitutional issues involved merely reconfirm the obvious: no one is above the law. Anyone who agrees that a former vice president (one who nearly became president) can be prosecuted for treason will be hard-pressed to argue that somehow a halo of immunity follows a former president for the rest of his days. “As Marshall explained,” writes Roberts in the Vance majority opinion, “a king is born to power and can ‘do no wrong.’ The president, by contrast, is ‘of the people’ and subject to the law.”

The matter before the Supreme Court today is cut and dried. No president has absolute immunity. To decide otherwise would make America’s founders turn in their graves.

CHICAGO – As the first criminal case against Donald Trump gets underway in New York City, the media have forgone their customary practice of declaring the “trial of the century.” Trial of the month is more like it, since three more are set to follow. The sheer number of criminal trials involving different allegations – hush money payments, retention of confidential documents, and election interference – would seem to guarantee a conviction and Trump’s final ejection from public life.

A conviction is indeed possible, even likely. But neither a conviction nor even jail time would disqualify Trump from running for the presidency. The important question is what impact a conviction might have on voters’ choices on election day. Given that most people have already made up their minds about Trump, we are talking about a small, obscure group of undecided voters in a handful of swing states. And given that most of these people seem to have little interest in, or knowledge of, politics, they likely know very little about the accusations against Trump. The media deluge from the trials may finally end their ignorance.

The trial in New York is about business records, not insurrections or national security. The indictment accuses Trump of violating a New York statute under which a person who, with fraudulent intent, “makes or causes a false entry in the business records of an enterprise” is guilty of a felony if he intended to conceal or commit another crime.

The “other crime” is not clearly identified in the indictment, but the focus of the trial is likely to be a federal campaign-finance violation (or possibly a violation of New York election law). Trump’s then-lawyer, Michael Cohen, paid hush money to the adult-film actress Stormy Daniels, who had threatened to disclose to a tabloid a sexual encounter with Trump. Paying money to someone to help a campaign is a campaign expenditure, and Cohen admitted to violating the law both by making a payment in excess of legal limits and failing to report it. Trump is accused of orchestrating this scheme, though he has not been indicted for the alleged campaign-finance violations.

The legal issues and the facts of the case are weirdly intricate. The US government did investigate Trump for violating federal campaign-finance law, but government lawyers probably feared that a jury would find that he concealed the hush-money payoff because it was personally embarrassing, not because it helped his campaign. That is what happened when the government prosecuted but failed to convict John Edwards in connection with the coverup of an extramarital affair during his 2008 Democratic presidential primary campaign.

Alvin Bragg, the New York district attorney, is not required to prove that Trump violated the campaign-finance law, only that he intended to do so. The federal government’s failure to indict Trump for campaign-finance violations suggests that Bragg may need to prove to a jury that Trump intended to commit a crime that the jury won’t think he actually committed. In making the journey into Trump’s brain to discover what exactly the man was thinking eight years ago, Bragg’s Virgil will be Cohen, an ex-con and admitted perjurer. Daniels will also testify.

You might think that this circus of seedy characters and events would end Trump’s electoral chances for good, just as Edwards’s dalliance destroyed his political career. But that would be a mistake, one that has been made a thousand times before. For Trump’s supporters, every new disclosure about his shocking behavior and repulsive character merely confirms the malevolence of the disclosers. In their view, Bragg’s prosecution of Trump for a business-records violation is actually an attempt to derail Trump’s campaign for the presidency by distracting him and exposing him to public embarrassment.

Exhibit A for this theory may be that Bragg has styled his business-records case as an election interference case rather than as a minor financial peccadillo. Bragg argues that Trump is a threat to New York’s reputation for business probity and to US democracy, bridging this yawning gulf by pointing out that the false business records concealed a campaign-finance violation that would have persuaded people to vote against Trump back in 2016 if they had learned of it. Hence, minor financial fraud is transmuted into major election interference. But the logic assumes that a substantial number of voters would not have supported Trump if they had known about the Daniels affair – an unknowable and perhaps implausible proposition. It also stumbles on the inconvenient fact that the business-records falsification occurred after the election, not before it. Trump may have attempted to interfere with the election by depriving voters of information about (parts of) his scandalous past, but it is not clear that it affected the outcome.

So, how much will this trial matter? It won’t change Trump voters’ support and may be too confusing to influence those independent voters who have not been paying attention to electoral politics. Maybe all that matters is the symbolism of the thing. If Trump is thrown in jail, he will surely present himself as a political prisoner in the mold of Aleksandr Solzhenitsyn or Alexei Navalny. But the image of Trump being led off in handcuffs, or the (mental) image of him being strip-searched upon his reception into jail, will probably have more impact on people than anything that is revealed at the trial. Are Americans ready to elect a jailbird?

Well, that possibility cannot be ruled out.

WASHINGTON, DC – Donald Trump was the unlikeliest of American presidents. When he launched his campaign in 2016, the closest he had come to executive authority was pretending to fire contestants on a business-themed reality show. As ridiculous as it seemed, the image of Trump sitting behind a massive boardroom table uttering his imitable catchphrase – “You’re fired” – convinced millions of American voters, including many who hadn’t voted previously, that he was a man who knew how to get things done.

That impression, together with good timing and good luck, enabled Trump to defeat political icon Hillary Clinton in a race that appeared tailor-made for her. But contrary to what Trump might claim, his victory was extremely narrow. In fact, he lost the popular vote by 2.8 million votes – a larger margin than any other US president in history.

Since then, Trump has proved toxic at the ballot box. In the 2018 midterms, the Democrats trounced Trump’s Republican Party. In the 2020 presidential election, Trump lost narrowly in the Electoral College, and in a landslide in the popular vote. In the 2022 midterm elections, Trump’s handpicked candidates were routed across the country, and Democratic candidates either held their seats or won Republican seats in key states – including Arizona, Michigan, Pennsylvania, and Wisconsin – often by wide margins.

While these failures might have inspired some Republican grumbling, Trump ended up firmly in control of the party apparatus, its leadership, and its most extreme members. It is a pattern the GOP will come to regret later this year, when both Trump and the Republican Party face what is likely to be a devastating electoral defeat.

Trump’s erratic behavior, anti-democratic rhetoric, and threats against his opponents will contribute to his loss in November’s presidential election. But it is America’s demographic makeup that will ultimately send Trump into permanent retirement. The old wisdom that “demographics is destiny” – coined by the French philosopher Auguste Comte – may well be more relevant to the outcome than it has been to any previous presidential election.

Between the 2016 and 2024 elections, some 20 million older voters will have died, and about 32 million younger Americans will have reached voting age. Many young voters disdain both parties, and Republicans are actively recruiting (mostly white men) on college campuses. But the issues that are dearest to Gen Z’s heart – such as reproductive rights, democracy, and the environment – will keep most of them voting Democratic.

The reality is that since Trump entered US politics in 2016, the Republican Party has become older, whiter, more male, and more extreme. It is also smaller, and Trump’s unwillingness to cross his base makes it difficult, if not impossible, to attract moderates and independents.

US President Joe Biden has more voters available to him than Trump does. That does not mean victory will be easy, but it does mean he can survive more voters staying home. If Trump is to win, he will need every possible voter in his party to show up, and he must pick up votes from as-yet-undecided Americans who might have long ago soured on him, not only because of his personal behavior, but also because of policy.

The Republican Party is on the wrong side of every major issue facing the American people. Consider reproductive rights. The Republican-hijacked US Supreme Court decided in 2022 to overturn Roe v. Wade, which had ensured abortion rights for half a century. Ultra-conservative state legislatures have outlawed abortion even in cases of rape or incest. And the Alabama Supreme Court recently delivered a ruling equating frozen embryos with children. This trend has pushed women and moderates even more firmly into the arms of the Democrats – or, at least, into the undecided or “anyone but Trump” camps.

On national security, Trump has often aligned himself with America’s traditional adversaries, thereby upsetting, angering, or confusing a key electoral cohort. Many older Republicans still carry the spirit of Ronald Reagan in their hearts, and view America as a “shining city on a hill,” a beacon of freedom and democracy to people around the world. For those who are old enough to remember the Cold War, Russia is an American foe through and through.

These Republicans largely find Russia’s invasion of democratic Ukraine unacceptable: one recent survey found that 43% of Republicans believe the United States is providing either too little or the right amount of aid to Ukraine. They certainly do not approve of Trump’s threats to abandon NATO and even encourage Russian aggression against members that do not meet their military-spending obligations. Trump’s affinity for authoritarian states – from Russia to Hungary to Saudi Arabia – is anathema to them.

Until this week, Republicans still had another option: Nikki Haley, a former US ambassador to the United Nations. Haley’s escalating attacks on Trump’s policy record seem to have had an impact. In the New Hampshire, Nevada, and South Carolina primaries, she captured about 30% of the vote. But Haley has now ended her presidential campaign, after losing the “Super Tuesday” primaries in 14 states.

So far, however, Haley has declined to endorse Trump, declaring that it is up to him to win the support of her voters. And there is good reason to doubt that he will succeed. In fact, rather than voting for Trump in November, many of Haley’s supporters are likely either to stay home or to vote for Biden. In Iowa, 49% of self-identified Haley caucus-goers said they would do just that.

Trump lost the 2020 election, and then incited an insurrection. Since then, he has moderated neither his rhetoric nor his behavior; on the contrary, he has become more extreme. If this depresses Republican voter turnout even marginally, Trump is in for a major defeat. There simply aren’t enough American voters willing to put him back in the White House.

NEW YORK – Robert F. Kennedy, Jr., scion of one of America’s most storied political families, is running for president of the United States. But unlike his late uncles – President John F. Kennedy and Senator Ted Kennedy (who unsuccessfully ran for president in 1980) – or his late father, Senator Robert F. Kennedy (who was assassinated during his own presidential run), RFK Jr. is not campaigning as a Democrat. Instead, he is running as the head of a newly formed third party, We the People. Thus unfolds the latest chapter in the bizarre and increasingly dangerous deformation of contemporary American politics.

Many political commentators have taken Kennedy to task for launching a spoiler campaign that could peel disenchanted Democrats away from President Joe Biden and hand the White House to Donald Trump. According to a Siena College poll of voters in six battleground states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin), more Democrats than Republicans (18% versus 16%) appear likely to back Kennedy. Little wonder the billionaire Republican megadonor Timothy Mellon has been bankrolling Kennedy’s super PAC (an ostensibly independent organization that can legally raise and spend unlimited sums on a candidate’s behalf).

Kennedy’s choice of running mate, Nicole Shanahan, a 38-year-old patent attorney and past supporter of Democratic causes and candidates, offers further evidence that Kennedy is targeting Democratic voters. Shanahan calls herself a disenchanted Democrat, and she has publicly invited like-minded others to jump onto the Kennedy bandwagon. As part of her 2023 divorce settlement with Google co-founder Sergey Brin, she reportedly sought more than $1 billion (a mere 1% of his estimated net worth). That sum would place her in an uncommonly advantageous position to help finance the complex and expensive effort to get Kennedy on the ballot in all 50 states.

Notwithstanding all the uncertainties Kennedy’s campaign has created, one thing is clear: populism is on the rise in both parties, from the left and the right. Both Trump and Kennedy have converged on classic populist themes, though with a few intriguing variations. For example, compare Trump’s 2017 inaugural address to Kennedy’s recent “state of the union” speech. Their central trope is identical: the loss and restoration of American greatness.

Trump’s grim narrative of America’s fall from greatness features “rusted-out factories scattered like tombstones,” infrastructure that “has fallen into disrepair and decay,” with the “wealth of our middle class … ripped from their homes and distributed across the entire world,” and with “millions and millions of American workers left behind.” While Washington elites prosper, “the people have borne the cost.” Trump promises to reverse the decline by putting “America first.”

Kennedy, too, sees a landscape littered with carnage. But his narrative gives prominence to “chronic illness,” “depression,” “mental illness,” and “loneliness.” Like Trump, he complains of dilapidated infrastructure and a middle class that has been “hollowed out.” And like Trump, he blames the elites: “All the new wealth of the last generation has gone to the billionaires and to transnational corporations.” But, from Kennedy’s perspective, the greatest evil of all is that America has become “the sickest country on Earth.” His pledge is to ‘make America healthy again.’

Kennedy’s emphasis on health reflects his public work as an environmental lawyer and, in recent years, as a staunch anti-vaccine crusader. He sees a cabal of sinister corporations and public officials conspiring to poison the environment and the body politic – one body at a time. At the height of the pandemic, he falsely claimed that the COVID-19 vaccines were “proven to have negative efficacy, causing people to be more prone to infection than doing nothing at all.” He reportedly even went so far as to assert that COVID-19 was “ethnically targeted” to spare “Ashkenazi Jews and Chinese people.”

If Kennedy’s emphasis on healing suggests someone who has been through “recovery,” that is because he has. Following the trauma of losing both his father and his uncle to assassins’ bullets, Kennedy battled, and ultimately overcame, an addiction to heroin.

Like Kennedy, Shanahan also appears to be channeling personal affliction. She describes grappling with infertility, as well as the difficulties associated with raising her five-year-old daughter, Echo, who suffers from autism, which Shanahan says she spends 60% of her time researching. “Our children are not well,” Shanahan tells us. She firmly believes, despite numerous scientific studies disproving the claim, that vaccinating children has caused a steep rise in autism cases. She wants to stop pharmaceutical corporations from “contaminating” science and “capturing” regulatory agencies. Evincing a distinctly QAnon-style paranoia, she demands that they stop “guarding” the “mysteries” that “we can solve.”

No one seriously believes Kennedy can win the presidency. But there is good reason to believe he could tilt the balance toward Trump by luring Democrats (including younger voters like Shanahan), some independents, libertarians, and devotees of new-age healing, as well as aging idealists still inspired by the candidate’s father and uncles.

Armed with paranoid conspiracy theories about America’s descent into chronic sickness, loneliness, and depression, Kennedy has heedlessly spread lies about the putative dangers of life-saving vaccines while mouthing platitudes about resilience and healing. To all appearances, he remains caught in a twisted fantasy that he just might be the one who will realize his father’s idealistic dreams of a better America.

The likelier outcome is a waking nightmare: an illiberal America presided over by someone RFK Jr.’s forebears would consider the country’s most dangerous domestic foe.

NEW YORK – Donald Trump knows a thing or two about defaulting on debt. His businesses have filed for reorganization under Chapter 11 of the US Bankruptcy Code at least four times to overcome excessive indebtedness – first with Trump Taj Mahal in 1991, then Trump Plaza Hotel in 1992, Trump Hotels and Casino Resorts 12 years later, and Trump Entertainment Resorts in 2009.

Moreover, Trump openly boasts about this strategy. “I have used the laws of this country just like the greatest people that you read about every day in business have used the laws of this country, the chapter laws, to do a great job for my company, for myself, for my employees, for my family,” he said in 2015. No wonder there has been speculation that he may choose bankruptcy over paying the $450 million penalty that he owes to the state of New York following his civil conviction for fraud.

While personal bankruptcy would be a matter between Trump and New York, his fondness for “the chapter laws” ought to concern us all. If Trump is elected president in November, he will face a similar but far larger credit problem: the US government’s growing debt burden. Trump might try to resolve the issue by defaulting, just as he has done for his businesses. This is a low-probability event, but one that would have catastrophic consequences, which could help explain the rise of the price of gold to all-time highs this year as Trump’s presidential prospects have grown.

To be sure, there is no provision in the current bankruptcy code for the federal government to seek protection the way a business or an individual can. Even state governments cannot declare bankruptcy (though municipalities can). But as president, Trump could order the Secretary of the Treasury to abstain from paying interest or repaying the principal on the federal debt. Missing a payment would put the United States in default. But since bond holders could do little more than sue the US Treasury to get their money, Trump may believe that he can negotiate a deal with America’s major creditors.

Of course, a default would destroy the image of US debt as the safest investment available – the keystone of the contemporary financial world. But why should that stop Trump? He likes to take risks with other people’s money, especially when his own exposure is limited. As he says in The Art of the Deal, “Protect the downside and the upside will take care of itself.” Moreover, second-term presidents tend to become more reckless because they are no longer restrained by the ballot box. Their limited downside encourages risk taking.

For example, Republican Presidents Richard Nixon and Ronald Reagan, and Democratic President Bill Clinton, all found trouble in their second terms. Nixon covered up the Watergate burglary, Reagan admitted to trading arms for hostages in the Iran-Contra scandal, and Clinton was impeached for perjury and obstruction of justice.

But these are just selective anecdotes. To demonstrate convincingly that the “downside protection” of lame ducks encourages risky undertakings would require a rigorous experiment. If only we could put the chief executive on a reality TV show, manufacture similar dangers during both terms, and compare the outcomes.

In fact, two natural experiments in the twentieth century come quite close to this. President Woodrow Wilson was elected in 1912, re-elected in 1916, and faced the problem of World War I during both terms. He avoided entering the Great War during his first term, despite pressure from his closest advisers and Germany’s sinking of the Lusitania in May 1915 (which cost 128 American lives). But on April 6, 1917, five months after his re-election, he scrapped his campaign slogan, “He kept us out of war,” and declared war against Germany.

The second experiment involves Franklin D. Roosevelt, a presumptive lame duck when re-elected to a second term in 1936. Roosevelt had discussed with his cabinet an aggressive move to pack the Supreme Court in 1935 to curb its power, after the Court had struck down key parts of his New Deal legislation. But his advisers considered the upcoming 1936 election too close to call, so Roosevelt delayed his plans. Then, on February 5, 1937, three months after his landslide victory, he proposed legislation to increase the number of Supreme Court justices from nine to 15.

Downside protection encourages risk taking. If elected to a second term, Trump could join the list of reckless lame-duck presidents by putting the US into default on its bonds. US debt would lose its exalted position and all the privileges that come with it, and Trump would just blame the Democrats for their excessive spending.