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Modern deterrence theorists believe that if it’s likely you will be caught committing a crime, you will be deterred from doing it. The theory assumes you are rational and able to weigh gains and losses. Put simply, if the speed limits were not ever enforced — if you could blow past the highway patrol going 95 mph and know you will never be pulled over — we would all speed. Further, if you were told that it was OK to speed (say, all speed limits were repealed) you would surely put the pedal to the medal as often as you desired.
Which message did President Trump take after the Congressional impeachment inquiry? It was not, as Senator Susan Collins of Maine said, that he will be “much more cautious in the future.” The unfolding story at the Justice Department this week suggests just the opposite.
In all the criminal and ethical scandals that have dogged Trump, he has been assured by his lawyers that the rules can’t be enforced against him while he is in office, except of course through impeachment.
To Trump, no enforcement translated as: It was fine to do what the rules prohibit.
When Trump was told there was no way to enforce the conflict of interest rules against him, he figured he had full impunity. He could profit from the foreign leaders and Secret Service who stay at his hotels, he could invite U.S. military to his fancy golf club in Scotland and use public money to fill the coffers at Mar-A-Lago.
Be ready for [Trump] to do 300 mph in a 60 mph zone, switch lanes at will ... ignore all of the guardrails -- this time the constitutional ones.
When Special Counsel Robert Mueller said Trump can’t be prosecuted for obstruction of justice while president, the Trump spin was: Obstruction of justice is just fine!
So, Trump has been happily obstructing just about any investigation by anyone: the New York State criminal investigation into campaign finance violations, ordinary Congressional oversight investigations into Trump’s ethical violations, and of course, the House’s impeachment inquiry.
Further, when Mueller found evidence that the Trump campaign accepted Russian help in the 2016 election but concluded that it didn’t amount to a criminal conspiracy, Trump heard: keep it up in 2020! And now we know that the day after Mueller’s Congressional testimony, Trump was at it again, on a phone call with the president of Ukraine — soliciting foreign interference in the next election.
We know what happened next. Republicans’ impeachment defense morphed from, “The president can’t be prosecuted for what he was doing in Ukraine” to “What the president did was fine, even ‘perfect.'"
Alan Dershowitz led the charge. “If a president does something which he believes will help him get elected in the public interest,” he said on the Senate floor, “that cannot be the kind of quid pro quo that results in impeachment.”
Dershowitz tried to dial back his comments, but it was too little too late. They were parroted by Trump’s supporters in the Senate.
Worse, Trump heard it loud and clear, reinforcing his authoritarian view that Article II of the Constitution empowers him “to do whatever I want.”
This week, he did. After Justice Department lawyers filed a sentencing memorandum in the Roger Stone case, calling for a guideline sentence of between seven to nine years, Trump tweeted his opposition to the recommendation, saying "cannot allow this miscarriage of justice."
Attorney General William Barr surely got the message. He could have worked behind the scenes, instructing his line lawyers to say something like, “this is the guideline sentence, but we would understand if you, judge, went lower given Stone's age.” But that wasn't good enough. Barr chose to intervene directly and publicly, urging Justice Department lawyers to file a supplemental sentencing memorandum the day after the first, calling for one-quarter of the originally recommended sentence. (All four Justice Department lawyers working on the Stone matter withdrew from the case — and one quit his job outright — to their credit.)
The Trump-Barr message could not have been clearer or more clearly wrong: Don't worry, we — my DOJ — will take care of my political allies!
What’s next? A Trump announcement that the U.S. is leaving NATO to suck up to Putin for that coveted Trump Tower in Moscow, adding, as an afterthought, “Oh, and our allies don’t pitch in enough money?” Do not limit your imagination. Trump certainly won’t.
Be ready for Trump to take Dershowitz’s message — not “I can get away with it,” but “it’s OK to do” — and run with it.
Be ready for him to do 300 mph in a 60 mph zone, switch lanes at will, cut off political opponents, play fast and loose with foreign policy, ignore all of the guardrails — this time the constitutional ones. Deterrence theory is right; Susan Collins is not.
This president won’t be deterred.
Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.
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