My first book on Donald Trump was an examination of one of the world’s most successful outlaws. Over the course of five decades, Trump had been accused of sexual assault, tax evasion, money laundering, non-payment of employees, and the defrauding of tenants, customers, contractors, investors, bankers, attorneys, and charities. Along the way Trump owned at least twenty different businesses that went “belly up” and six times he filed for Chapter 11 bankruptcies. Nevertheless, Trump managed to amass power alongside much of the wealth that his father had made and passed along to him. In short, Trump was never the successful self-made “art of the deal” billionaire that he claimed to be.
Trump’s political success, similarly, had nothing whatsoever to do with his understanding of domestic or international affairs. Nor did Trump win the 2016 race for the presidency based on his expertise in business, finance, or real estate. Rather, Trump’s unique ability to acquire power, even after losing the 2020 presidential election and his failed coup two months later, came from his perseverance and expertise as a huckster and conman, along with his uncanny ability over decades to double down on corruption, lawlessness, and deception.
Much of the empowerment of Trump has come from his understanding of the usefulness of tabloid journalism, labeling, branding, and social media combined with his innate talent for self-promotion. As the host of the acclaimed TV series “The Apprentice,” with the catchphrase “You’re Fired!” Trump nurtured his celebrityhood.
The power of Trump has stemmed from his shrewd salesmanship and hustler like abilities to alter the social realities for tens of millions of Americans — even though the majority of people in the US know that there is not a grain of truth to any of the lies or poppycock that he and his cronies are forever spreading throughout the body politic. Nevertheless, at this moment in time, Trump and his organized crew have been able to win the political narrative with the idea that “no matter how vile and seditious Trump may be, Joe Biden and the Democrats are always worse,” as Will Saletan recently stated on The Bulwark Podcast.. As I have argued in The Crime Report, however, I believe that this narrative will no longer suffice once Trump has been convicted of the January 6 charges against him by a jury of his peers.
Trump’s “art of the steal” and his very skillful gaslighting can also be described as the art of the fairground barker à la P.T. Barnum. The American showman, businessman, and politician best remembered for founding the Barnum & Bailey Circus and for promoting celebrated hoaxes, such as the Feejee Mermaid, the Cardiff Giant, and Tom Thumb’s Baby.
In my first account of Trump’s lawlessness, I explained how the fraudulent behavior of the Houdini of white-collar crime escaped the clutches of the long arm of the law with only some minor scratches. And without so much as one criminal indictment. I described how the racketeer-in-chief used his four years in the White House to broaden his financial schemes or rackets, such as selling pardons to name my favorite. I also revealed how Trump expanded his criminal enterprise by monetizing the powers of the presidency for the benefit of himself, the Trump Organization, and his children. All of these corrupt activities fell in line and conformed with a wide array of his other scams from a lifelong pattern of mixing legitimate and illegitimate business transactions.
In the words of Steve Bannon, throughout the reign of Trump, his administration sought to deconstruct the state and to weaponize the political apparatus, including workstations and headquarters, for example, of the Environmental Protection Agency, the Consumer Protection Agency, and the Department of Justice (DOJ). The politicization of the DOJ with the cooperation of Trump’s third attorney general, Bill Barr, involved several criminal prosecutions and was as blatant as interference can become. In addition not only to delaying the release of the Mueller Report, so that Barr and Trump could falsely spin the findings about the 2016 Russian interference into Trump’s first presidential election, the two men appointed the hard-nosed prosecutor John H. Durham as a special counsel to discover any wrongdoing behind the Russian investigation as evidence of a “deep state” conspiracy by either intelligence or law enforcement to go after Trump in order to eliminate him from the competition.
According to The New York Times, during the time between the Mueller investigation in 2016 and the release of Durham’s final report in May 2023 that revealed his inquiry had failed to find any wrongdoing in the origins of the Russian investigation, two of its “field investigators” on the case were Rudy Giuliani and Bill Barr on assignment in Italy to discover any evidence of persecution or witch-hunting. There was none, but they did manage to gather some worthy tips that connected Trump to some unrelated criminality. Not surprisingly, Durham never bothered to follow up on this information, preferring instead to “deep six” any incriminating evidence against the then-president.
Subsequently, when Durham delivered his final report after four years taking nearly twice as long as the Mueller investigation had taken, the special counsel thanked President Biden’s Attorney General Merrick Garland for his continued support of an independent investigation into the investigation that had previously been investigated to no avail by Trump’s inspector general.
Less than two years after being sworn into office, Trump armed with the help of a handful of billionaires, the Fox News corporation, his devoted MAGA base, and such media platforms as Twitter, Facebook, and YouTube took control of the Republican Party. After his re-election loss to Biden by more than seven million votes, #45 spent his final days in office not as a lame duck about to hand over the keys of the White House to occupant #46.
Instead, the soon to be former president had become “obsessive-compulsive” about resisting by any means necessary his electoral defeat to the same Joe Biden who had garnered seven million more popular votes than Trump. This included the orchestration of bogus lawsuits as well as government officials, political hacks, and fake electors to overturn a fair election and to violently interfere with the congressional certification of the president on January 6, 2021.
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No question that Trump’s shamelessness in addition to his vibrant sociopathic personality are key attributes that have well served the former president. However, what has allowed Trump to evade prosecution and ruin all these years is captured best in the various struggles to impeach and/or criminalize the ex-president, who is only three months away from Super Tuesday and on the road to securing the 2024 GOP nomination for president. I am referring to Trump’s acute abilities to corral and maximize economic and political power, on the one hand, and, on the other hand, to his mobster like proclivities for corrupting, fixing, resisting, and intimidating not only ordinary people, politicians, victims, witnesses, and jurors, but even those members from law enforcement and the judicial communities.
Speaking to reporters on March 13, 2023, aboard Trump Air Force One on his way to Davenport, Iowa, the 2024 presidential candidate rebuked his former vice-president, Mike Pence, for a speech that he gave the night before at the white-tie Gridiron dinner in DC. Pence’s gaffe had been to state that Trump should be held accountable for the events of January 6. As usual Trump was blaming others for his crimes saying to the contrary, “don’t blame me, blame Mike. It was all his fault.”
Trump continued “‘Had he sent the votes back to the legislatures, they wouldn’t have had a problem with Jan. 6, so in many ways you can blame him.’” Trump was referring to Pence’s refusal to lawlessly reject the electoral college votes in Congress as the lame duck president had wanted him to do. Trump tersely explained: “Had he sent them back to Pennsylvania, Georgia, Arizona…I believe, number one, you would have had a different outcome. But I also believe you wouldn’t have had ‘Jan. 6’ as we call it.”
Placing Trump’s lawlessness and unaccountability for his crimes into the context of the crimes of the powerful and their lack of crime control, the privileged more often than not are not concerned about certain legalities and their consequences. Conversely, everyday people especially “the poor, the working class, Black and brown folks, a large majority of women, LGBTQ people and members of other vulnerable and disadvantaged communities do not have the privilege of ignoring” the law or thinking that it does not apply to them.
One constant in the differential or selective administration of criminal justice is that ordinary persons without privilege are criminally indicted every day without unreasonable delays. Their criminal charges are not subject to prosecutorial discretion over whether a conviction beyond a reasonable doubt can be absolutely secured by a jury of their peers before indictments are brought forth. Mostly this is because less than five percent of their cases will ever go to trial.
Moreover, the typical crimes of the powerful are not offenses committed by ordinary people nor are they delt with as matters of criminal law though they could be. Rather, these are elite offenses committed by powerful persons who use their economic wealth and privileged statuses to enable their crimes and to resist their capture. Structurally, elite or privileged transgressions of the law are not normally subject to criminal sanctions or to the loss of liberty. Typically, there are only civil liabilities and/or compensatory damages at stake. Unlike the offenses of the powerless who are almost exclusively subject to criminal sanctions and not to civil, administrative, or tort resolutions of conflict.
What makes Trump and his legal teams’ defense tactics and strategies so interesting is that they represent the same types of practices or services that white-collar and corporate defense lawyers normally provide for their clients at more than $1000 per hour, such as prefrontal litigation or argumentation as a means of avoiding trials altogether or resolving complaints rather than prosecutions by stay if not dismissal. In criminal cases, these types of pre-trial activities are quite rare, short of guilty plea deals as contrasted with white-collar and corporate non-prosecutorial agreements. Putting aside the statuses of Trump as a former president and 2024 presidential candidate, neither the leaders of the Proud Boys or the Oath Keepers, who were convicted of seditious conspiracy related to the U.S. Capitol breach on January 6, for example, mounted any kind of prefrontal white-collar or corporate like defense.
Because of the intersecting legal arrangements of elite accountability, Wall Street institutions and securities financiers, and multinational corporations and their CEOs, for example, or wealthy and corrupt former presidents, they will often remain for very long periods of time – if not indefinitely – beyond legal incrimination. Think of Too Big to Fail, Big Tobacco, Big Chemical, Big Oil, Big Pharma, and so on. As an informal rule, only when on those occasions where there has been enough social pressure built up over many years, sometimes over decades, do these powerful offenders find that they are no longer beyond the reach of the law. And only then are they ever held criminally accountable for what generally amounts to short prison sentences and fines at a fraction of the value of the harms or injuries they have caused.
Ergo, the myth that no persons or corporations are above the law has little to do with the workings of law enforcement and criminal justice in the United States. Special treatment of privileged people, especially those who have reached the pinnacles of economic power and political authority are often held conspicuously unaccountable for their misdeeds, criminal or otherwise.
In the spring of 2023, former head U.S. Attorney for the Southern District of Alabama Joyce Vance wrote about Supreme Court Justice Clarence Thomas in the legal context of the difficulties of suing Fox News and the Trump Organization. When Thomas’ conflicts of interest and alleged criminal conduct had become a judicial scandal, and after Chief Justice John Roberts had declined an invitation to testify before the U.S. Congress about SCOTUS’ lack of a judicial code of ethics or oversight, the distinguished Alabama law professor underscored that “much of what we are experiencing comes down to a single flaw in our system: High-level officials are not held to the same standards of accountability that the rest of us are.”
Or as George W. Bush’s ethics czar Richard Painter stated on MSNBC’s “The ReidOut” at the time, “Justice Thomas has clearly violated the ethics regulations of SCOTUS as well as the law and should be impeached by the U.S. Congress and removed from the court at a minimum.”
When it comes to the normalization of crime and criminalization, the powerful and privileged have always had institutionalized advantages, and the powerless and oppressed have always had institutionalized disadvantages. These inequities or biases in the substantive laws have over time become routine through the legal formalities and discretionary informalities of the procedural law. From this perspective of justice evolution, the variance in the accountability and management of criminals and the distinct systems of social control that are in play should be viewed legalistically – conforming with the state definitions of harm and injury – and extra-legalistically – conforming with the ideologically informed practices of law enforcement and the administration of justice. In other words, when it comes to specific laws and the different institutional relations of resolving conflicts and administering criminal justice, people’s choices of crime and their forms of social control are not at all equal or subject to the same due process of law.
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Structurally, the crimes of all people are mostly shaped by their differential access to legal and illegal opportunities and the types of punishments they receive are mostly shaped by the intersections of their socioeconomic statutes and the substantive laws they break. For example, rich people do not hold up 7-Elevens for a few hundred dollars a heist and poor people do not fix prices for hundreds of millions of dollars looted over months or even longer. Meanwhile, law enforcement does not care nearly as much about looting capitalists as it does about pilfering workers even though the costs of the former are one-hundred times more costly than the latter. This corporeality is also evidenced by finite resources and the allocation of an underabundance of money spent for policing “suite” crimes as compared with an overabundance of money spent for policing “street” crimes.
Legal myths aside, before becoming president-elect in 2016, Donald Trump, his organization, shell companies, and employees were at every level of government subject to a wide range of 13 major legal probes between 1973 and 2016. Prior to Trump becoming president, the criminal matter of indicting him had always begged the question: “How many years of accumulated lawlessness and abuse of power would it take before the criminal law would, if ever, catch up with Teflon Don?” Until recently, the answer had been for more than 40 years and counting.
After Trump became the former POTUS the question was reframed: “How long would it take for a twice impeached Commander-in-Chief undergoing a countless number of criminal and civil charges including stealing highly classified documents from the United States and a presidential election from the American people, before he would finally be charged and held accountable for at least one of his dozens of serious felonies?”
The answer to the first reframed question came on April 4, 2023, when Trump was arraigned in Manhattan and charged by the people of New York with 34 counts of falsifying business records related to violations of election and tax laws used to cover-up hush money payments made to suppress two of his extramarital sexual liaisons from becoming public knowledge only days before the 2016 election for the presidency. At the time, such public knowledge may very well have tipped the scales and prevented Trump from narrowly winning that election with three million fewer votes than Hillary Clinton received.
The answer to the second question will not be known until after Trump’s upcoming 2024 criminal trials have concluded.
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