Jonathan P. Baird lives in Wilmot.

When former President Donald Trump was indicted in New York, it seemed like a milestone. The media treated it as a big deal, like some kind of taboo was broken. Sen. Joe Manchin (D.-WV) and Gov. Kim Reynolds (R.-Iowa) both said “it was a sad day for America.”

TV coverage treated Trump’s drive to the courthouse like a breathless O.J. moment that was stunningly unimaginable. As he always has done when held to account, Trump cried “witch hunt.” Talking heads said the prosecution of Trump was dangerous because it could lead to the prosecution of future presidents.

I would suggest this framing of Trump’s indictment could not be more off base. Presidents in America have long been above the law. Not holding presidents accountable for crimes they have arguably committed is an American tradition.

Going back, I would cite: George W. Bush and the Iraq war; Barack Obama’s kill list and his use of drones for assassination; Ronald Reagan’s back channel Iranian hostage negotiating; and, of course, Richard Nixon, who was famously pardoned for all crimes by President Gerald Ford. As the writer Chris Lehmann has written, “…the Executive Branch has operated in a zone of near-total extra-legal impunity.”

Rep. Jamie Raskin (D.-Maryland) has described Trump as “a one man crime wave.” That is getting closer to the truth. What is shocking is how long it has taken to indict him. No president has ever been accused of so many crimes. Bubbling up now, besides the Manhattan case, are the Fulton County Georgia case and Special Counsel Jack Smith’s cases around January 6 and Trump’s handling of presidential documents. Nor should we forget E. Jean Carroll’s sexual assault-related case.

During his life, Trump has been a litigant in 3,500 cases but he has never done jail time. He always skated through. From early on he deployed an attack-heavy, delay-and-deny, anti-legal game plan he learned from his mentor Roy Cohn. Trump has always cast himself as a victim while he aggressively smeared adversaries.

There is nothing sad about D.A. Alvin Bragg’s prosecution. It’s a first step toward accountability. Our founding fathers did not want the president to be a king, above the law. They had an appreciation for the checks and balances they built into the constitutional structure. But Trump has said, “...I have an Article 2, where I have the right to do whatever I want as president.” He was following the Richard Nixon understanding of the Executive Branch. Nixon said, “When the president does it, that means it is not illegal.”

Besides the grift that is part and parcel of his new run, Trump’s desperation to become president again is rooted in thinking that becoming president is the best way to avoid further prosecution. If elected, it would also enable him to try and pardon himself. Can there be any doubt that Trump would have the chutzpah to bring such a case?

I would locate America’s unwillingness to prosecute and hold presidents accountable inside our broader pattern of failing to prosecute white collar crime. As Jennifer Taub has written in her book “Big Dirty Money,” there is a double standard in our criminal justice system that reflects and perpetuates inequality. We have mass incarcerated poor young people, especially young Black men, while we coddle rich white men who have committed far more significant crimes.

Garrett Graff, author of “Watergate: A New History,” has written, “The story of the Trump years is the sort of downstream unfortunate consequence of America’s chronic non-prosecution of white-collar crime. Even before you get to the specific precedent of prosecuting a president, if America prosecuted white collar crime at anywhere the level of the War on Drugs, the war on marijuana, all the mandatory-minimum sentencing for drug dealing, Trump’s presidency isn’t thinkable.”

Trump is the beneficiary of a system that stereotypes Black men as the face of crime. The treatment received by a George Floyd or an Eric Garner would never happen to corporate defendants who don’t fit the “normal” racist model of what a criminal is. Judges have a track record of showing more leniency toward rich white people with whom they identify as members of the same social class.

Law professor J. Kelly Strader of Southwestern Law School has called the pattern the “white collar paradox”. Strader analyzed Supreme Court justices’ votes over a 24-year period. He found conservative justices, who typically vote to uphold criminal convictions, often did not do so for white collar criminal defendants.

In an article, “The Judicial Politics of White Collar Crime,” he produced statistical support for his proposition. He found Justice Scalia voted for defendants in fewer than 7% of non-white collar criminal cases and nearly 82% of white collar cases. Chief Justice Rehnquist voted for the defendant in just over 8% of non-white collar criminal cases and almost 62% of white collar cases.

There is quite an irony in Trump always tweeting out “law and order.” Law and order doesn’t apply to white collar criminals from his own social strata. It is hard not to mention the complete lack of criminal accountability for those rich white people who crashed the economy during the 2008 financial crisis. No Wall Street executives ever went to jail. The double standard remains in effect for corporate criminals.

It’s worth thinking more about why Trump and others of his social class have gotten such a pass. Criminal business people very rarely get thrown in jail. Around 100 years ago, Eugene V. Debs wrote, “There is something wrong in this country; the judicial nets are so adjusted as to catch the minnows and let the whales slip through.”

That is still true.

]]>