Why is Trump Doing It?

 Trump’s major miscalculation and why he will continue to fight, even though they have zero chance of succeeding. Bear with me, because the legal stuff is at the end.

Throughout his administration, Trump has appointed people to major cabinet and other positions because he believed they would do his bidding. Cross him? You’re fired. During this same period, he appointed hundreds of highly conservative judges to life terms, including three members of the US Supreme Court. His miscalculation is that judges take an oath to uphold the Constitution of the United States, not to pledge fealty to the person who appointed them. Each and every one of his judicial appointments who have heard the post-election cases have ruled against him, usually summarily. Trump’s problem is that he cannot fire them. The best he can do, now that the meaningful litigation is over, is for him, Guiliani and his press secretary is to continue to lie about the process and what the courts did.

So why will he continue to fight? This isn’t about being a poor loser or continuing to raise money from a cadre of dupes. No, this is personal. He needs to remain President.

The courts historically have been extremely deferential to the office of the President, both due the doctrine of separation of powers and respect for the office itself. This means that presidents are generally not sued while in office. Perhaps as importantly, presidents can stonewall investigations, claiming confidentiality, attorney-client privilege, national security and the like. Once out of office, everything except attorney-client privilege goes out the window.

The reason Trump would need a second four-year term is to make sure that cases against him could no longer be brought against him due to the passage of time. This is called the statute of limitations. Depending on the kind of case, most actions must be commenced within a period of up to six years. So, if he is immune from suit for eight years, a large share of these problems go away.

Even the pardon process won’t protect him from potential liability. Pardons only apply to federal criminal offenses. Thus, even if he were to get pardoned, he (and his family) could still be held criminally liable in state courts and face a multitude of civil cases.

We now come full circle to the miscalculation mentioned earlier. Due to the independence of judges, even those he appointed, he will no longer be able to justify himself by claiming that the Democrats are conducting a witch hunt. He will be on his own. And that is terrifying to him. [Written December 12, 2020]