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Intelligencer, February 19, 2019

President Trump spent the weekend decrying the “coup” against him, demanding the imprisonment of federal investigators, and calling for retribution against those who mock him. Below the surface, though, a more serious argument is taking shape. While Congress is opening probes of a wide array of apparent crimes by Trump and his family business, the president is not likely to cooperate or accept the legitimacy of the investigations at all.

A recent Wall Street Journalop-ed by David Rivkin and Elizabeth Price Foley is a blinking red sign of what’s to come. Rivkin, a veteran of the Reagan and George H.W. Bush administrations, is perhaps the state-of-the-art conservative-movement legal apparatchik, regularly published in the Journal and quoted in the mainstream media arguing that the Constitution demands whatever the party happens to need at any given moment. Rivkin’s latest essay blazes a new trail in Trump’s legal defense. It asserts Congress has no right whatsoever to investigate anything Trump did before assuming the presidency.

Trump of course faces massive political and legal vulnerabilities not only for collusion with Russia during the presidential campaign, but also secretive financial ties to Russia and other authoritarian states, tax fraud, campaign finance violations, abuse of a pseudo-charitable foundation, and embezzlement of inaugural funds. This is a non-exhaustive list of potential crimes that precede Trump taking the oath of office. Rivkin and Foley argue that Congress cannot investigate any of these things.

The obstacle to this claim of legal impunity is the legal precedent in the case Clinton v. Jones. This was a lawsuit brought by Paula Jones, against President Clinton, and which created the precedent that presidents can be sued for behavior that occured before their presidency. Conservatives enthusiastically supported this precedent when the target was a Democrat. Indeed, the notion of investigating the president’s pre-presidential conduct drew rabid support on the right. The Wall Street Journal published so many editorials demanding investigations of Whitewater (a Bill Clinton Arkansas-era deal) that the books republishing them ran well over 500 pages. After eight years fanatically hounding a president over a land deal, and producing no evidence of a crime, it is astonishing to see the Journal turning around and insisting pre-presidential conduct should never be investigated at all.

What is the difference between the cases of Clinton and Trump? Rivkin and Foley’s explanation is hilarious. They argue that the investigations of Clinton were found not to threaten “interference with the President’s duties.” By contrast, the investigations of Trump do:

Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.

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