So now Donald Trump is being investigated for obstruction of justice. Not such a big deal.

That investigation is not, nor is any other the ongoing inquiry, going to give Trump opponents what they want when they want it.

In fact the legal process, including congressional investigations, can hamper the opposition because legal procedures are slow, narrow and confining. 

Ironically, the legal process might even help create a more sympathetic a portrait of Trump.

There may be plenty of legal cases to be made against President Donald Trump, but none will be made quickly.

Flickr: Gage Skidmore

Media Time Versus Legal Time

Journalists regularly talk about “breaking news” and “turning points” in Trump investigations.  That is media time: look at what’s been happening with congressional hearings.

Legal time is very different. Legal procedures are long and drawn out with all kinds of opportunities to delay.

Take impeachment. As Elaine Kamarck says in her recent article about impeaching the president,  “history makes it clear that this (impeachment) would involve a long, delicate, and complicated process fraught with significant political and legal ramifications.”

It was over two years after the Watergate break-in before Nixon was impeached. 

Lawyering up is another way of saying, “I’ll see you tomorrow. And the day after that. And the day after that. And …”

As for obstruction of justice, even if that turns out to be true, there is no legal precedent for indicting a sitting president.  So testing that in court will take time, a lot of time with of course no guarantees.

And then there is Attorney General Jeff Sessions’ testimony before the Senate Intelligence Committee. New York Times columnist Frank Bruni described Jeff Sessions’ answers before the committee as “gauzy and useless.”

Well, of course they were. That’s how the process works. You expected mea culpa or even a definitive answer to the senators’ questions?

These hearings are incremental, a cat and mouse game.

The Intelligence Committee may decide to follow up, possibly even citing the attorney general with contempt of Congress.

But that all takes time, with the possibility of more hearings and challenges to a contempt citation, or executive privilege, all ending up in court.

The legal process will go on well past the 2018 elections, and as a favorite make-out song in my college years put it, “that’s a long long time.”

Law’s Entrance Barriers

“He’s violating the Constitution!” you say. From your mouth to the court’s ears.

But not really. The legal process does not click in automatically. Someone has to bring a case. Courts have rules that can make this difficult.

With all the investigations and accusations going on, think of how little litigation or the like has been filed against the president.

Remember, prior to the inauguration, all that confidently indignant talk about Donald Trump’s constitutional violations, like his refusal to divest himself from his businesses?

Well, Trump’s response to the pressures for divestiture came down to this: I won’t, and I get to decide what’s right. That ended that. No legal challenges.

How about the Constitution’s emoluments clause, which to Trump critics looks like so obvious a standard that it’s become the abracadabra of Trump resistance?

To challenge the president on the basis of that clause, which forbids government officials from accepting payments and gifts from foreign governments, you have to have legal standing. That means that before any argument can be made on the merits of the case, the complaining party has to show that she was directly and sufficiently harmed enough to qualify as a plaintiff.

No success so far. Maryland and the District of Columbia are trying to sue on these grounds right now.

Let’s not get too technical here. Just understand that because of the barriers that the standing requirements create, litigating these issues will be a long, involved crapshoot.

Marc Kasowitz, who is now the president’s personal lawyer, is an expert in keeping issues involving Trump from being litigated. One profile of this attorney called him “a legal fixer.”

This is what Kasowitz fixes. And that’s why the president has hired him.

Lawyering up is another way of saying, “I’ll see you tomorrow. And the day after that. And the day after that. And …”

Law’s Narrowness And Confinement

Framing the issues in legal terms like obstruction of justice, contempt of Congress, or violations of the Constitution misconstrues the real issues because it paints a narrow, soft portrait of the president.

Lee Smith, a conservative critic of Trump, criticizes the legal perspective this way:

“He (Trump) is dangerously erratic and volatile. He makes things up. He is surrounded by opportunists who seek to bend his presidency to serve their own bureaucratic or personal interests. These are serious faults in a man chosen to lead the United States.”

“So,” Smith says, “Why not concentrate on those?”

Why not indeed?

Notice that there isn’t one legal term in that list of Trump’s wrongs. The list is more open and less confining, going well beyond legal issues, as it should.

Do you want the president’s behavior to be assessed simply on the basis of whether it’s legal or not?

Or put that another way, will the failure to prove those violations, certainly possible, vindicate Trump in your eyes and make him an acceptable president?

Arguing about “serious faults” is a broad, open process that is not confined by legal procedures.

It involves everyday politics and everyday language — the 2018 mid-term elections, rather than the courts. 

That may seem pretty discouraging for Trump critics who look to the law as the answer. Where’s the justice?

Justice. When I was a university ombudsman, I dealt with many angry people who were certain that their sense of justice had been violated. They wanted me to point them to that singular place, that singular forum that would definitively vindicate them.

I hated those cases because typically there was no such place, nowhere guaranteed to be both definitive and sympathetic.

Don’t let your own sense of justice about Donald Trump create false optimism about certainty and sympathy. Don’t let passion cloud your understanding of the political work that has to be done.

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