As the week began, it looked as though Donald Trump would finally face consequences — or at least, a consequence — for his actions.
Last month, a New York state trial court found the former president liable for inflating his net worth and misleading banks and insurers in order to receive favorable loans for his various businesses and commercial enterprises. The judge, Arthur F. Engoron, imposed a penalty of $454 million, to be paid into the state’s general fund. Letitia James, New York’s attorney general, gave Trump a 30-day grace period to secure bond as he pursued appeal of the judgment. “If he does not have funds to pay off the judgment, then we will seek judgment enforcement mechanisms in court, and we will ask the judge to seize his assets,” James said last month.
As of Sunday, Trump did not have the funds lined up. He could not find a company willing to pledge nearly half a billion dollars on his behalf. And even if he could, he would need to pledge at least as much in collateral to the company.
Almost any other defendant would have to face the consequences of coming to court empty-handed. It was in a criminal case, yes, but Kalief Browder — arrested at 16 for an alleged robbery — spent three years at Rikers, without trial, because his family could not afford a $3,000 bond. Not Trump. On Monday, the day the money was due, a New York appeals court said that it would accept a far smaller bond of $175 million, a significant and unexpected victory for the former president. He has 10 days to pay.
Consequences for Trump? Ah! Well. Nevertheless.
Although Trump is entitled to an appeal, which he is pursuing, it still feels outrageous that he would get this unexplained courtesy after years of willfully defrauding the public. At the same time, it feels typical of Trump’s relationship to the various institutions of American life. If there seems to be a different set of rules for Trump, under which there is always a reason to look the other way or give him a second chance, that’s because for all intents and purposes, there is.
At no point during his long career as a celebrity real estate mogul and businessman has Trump faced any meaningful consequences for his fraudulent, even criminal, behavior. He has operated for decades with a shield of impunity crafted from his shamelessness, his celebrity and his craven willingness to intimidate critics with litigation or even just the threat of litigation.
What is striking is the extent to which this shield of impunity has only been strengthened by the political and legal institutions of the United States. First and foremost among these is the Republican Party, which has never wasted a chance to thrust itself between Trump and the consequences of his actions. When it was the “Access Hollywood” tape, Republicans were there for Trump. They were there for him when it was his callous reaction to the white supremacist violence in Charlottesville. They were there for him when he was impeached for trying to coerce the government of Ukraine into supporting his political prospects, and they were there for him when he was impeached for trying to overturn the results of the 2020 presidential election.
The much-vaunted guardrails of the Constitution have not done much to stop Trump, either. As I’ve discussed many times, we have the antiquated rules of the Constitution to thank for his elevation to the White House. And those same rules facilitated his effort to deny the will of the voters and retain his grasp on power.
The law has not been much better.
If you helped Trump try to overturn the results of the previous election, up to and including the Jan. 6 attack on the Capitol, then there’s a good chance you’ve had to face your day in court. One of Trump’s lawyers, Rudy Giuliani, was ordered to pay nearly $150 million in damages relating to efforts to subvert the 2020 presidential election in Georgia. Another Trump lawyer, Sidney Powell, pleaded guilty to six misdemeanor charges relating to the effort to manufacture evidence of voter fraud in the same state. And this is to say nothing of the hundreds of rioters who have been charged and sentenced in federal criminal court.
So far, however, Trump has gotten away scot free. Yes, he has been indicted in federal cases related to Jan. 6 and his handling of classified documents. But the Supreme Court has in effect delayed his trial until the fall as it considers the absurd (but no less serious) question of absolute presidential immunity for criminal conduct in office. The judge in the documents case, Aileen Cannon, can’t claim to be tackling a serious constitutional issue. She seems, instead, to be looking for any avenue that allows her to dismiss the charges against the former president, who nominated her to the federal bench in 2020.
The upshot of all of this is that whether Trump will ever face consequences may well depend on the outcome of the 2024 presidential election. If he wins, he’ll use his powers to pardon himself and escape legal scrutiny, at least in federal court. If he loses, then perhaps his luck will have finally run out.
Over the weekend, the Republican pollster Frank Luntz issued a warning to Letitia James that seizing Trump’s properties would put him back in office. “If the New York attorney general starts to take his homes away, starts to seize his assets, it’s all going to be on camera,” he said on CNN. “Pundits are going to sit there and scream about this, ‘This man cannot be elected.’ You’re going to create the greatest victimhood of 2024, and you’re going to elect Donald Trump.”
This is exactly backward. It is the refusal to enforce the rules — enforce the law — against Trump that has put him in a position to win the White House a second time. It is the impunity, as much as if not more than the cultivated sense of victimhood, that anchors his political appeal.
As it stands, we’ll almost certainly be forced to wait on the verdict of the electorate to see if Trump ever answers for his crimes.
This, in turn, gets to one of the fundamental truths of the Trump era. There is exactly one force in this country that has disciplined Trump and held him accountable for his actions. It is the public.
The American people have been the single most reliable obstacle to Trump’s effort to impose himself, and his will, over our institutions. Let us hope that they have not given up the fight.
