Nathan Wade — prosecutor, former lover of Fulton County, Georgia, District Attorney Fani Willis, and unlikely wrench in the gears of the lawfare campaign against presumptive GOP nominee Donald Trump — has a poor grasp of discretion, as we now well know.
To that, we can add that he has a poor grasp of the significant body of constitutional scholarship, which states that a sitting president can’t just be dragged into a court of law.
This revelation came as part of Wade’s interview on CNN Wednesday with Kaitlan Collins, which focused — as you might expect — on his amorous dalliance with the Fulton County DA trying to nail Trump and his associates on RICO charges based on their attempts to challenge the results of the 2020 election.
That effort wasn’t exactly going stellar before the evidence of their relationship came to light. Without going through a full rehash of l’affaire Willis/Wade — which did indeed provide some much needed levity to an otherwise dreary, underwhelming set of proceedings — Wade was forced off the case, and Willis was given a strong rebuke but allowed to continue as lead prosecutor. Trump’s lawyers are appealing that decision, which has pushed the start of the case off indefinitely.
However, you can’t fill a full interview with the legal consequences of intraoffice hanky-panky, so Collins asked about what would happen if the case was pushed off past the election and Trump were to win.
“If Trump wins the election, and the district attorney, next spring, when this — when this does go before the Court of Appeals is not disqualified from that, is it constitutional, for a district attorney, to put a sitting president on trial, and if he’s convicted, and jailed, potentially?” Collins asked, according to a CNN transcript.
“So, let’s look at the question in reverse. Is it — are you asking me, if there’s anyone, who’s above the law at any point in time, and they’re allowed –” Wade responded.
“No, but I don’t think it’s been litigated about a sitting president, of course, going on trial,” Collins noted. “We’ve never seen that.”
“Never seen it. Never expected to see it, which is why a lot of the questions about experience,” Wade said.
Will Donald Trump go to jail?
“No one has ever done this before. No one. This is — this is a new animal. But if he wins the election, then certainly there are lawyers, out there, who will be charged with figuring out that issue, and maneuvering around it.”
Yes, that’s right — “maneuvering around it.” He’s not even good at euphemizing this.
Collins, just to make things clear, noted that Wade was “not sure if he can — if he can go on trial, if you believe it’s constitutional or not for him, to actually be on, if he’s the sitting president.
“But you just talked about how important this case is. I mean, personally, how important do you believe it is, for this case, to go to trial, for voters to see the evidence here, of what’s alleged in that indictment?”
“Oh, it’s very important,” Wade responded. “But let’s back up a moment. You said that I’m not sure about the constitutionality of trying a sitting president.”
“Yes. Do you believe he can — sorry, if that wasn’t clear. Do you believe he can be on trial, if he’s in the White House?” Collins responded.
“I do believe that he can,” Wade said. “I don’t — I don’t believe that it looks good to the rest of the world. But certainly, I don’t think that there’s anything that will prevent that from happening.”
Collins then asked the obvious question: What happens if he’s convicted?
“I mean, it would create a moment, like we’ve never seen, in this country, with the Secret Service, with who’s enforcing that. And, of course, he would be the head of a federal branch of government,” she said.
“That’s a much different question. We know that sentencing is totally up to the trial court. That judge that’s sitting there, he’s charged with — with making those types of decisions. Special prosecutors are not,” Wade responded.
Nathan Wade says he believes Trump can be put on trial in Georgia, even if he wins a second term and is in the White House. “I don’t believe it looks good to the rest of the world. But certainly I don’t think that there’s anything that would prevent that from happening.” pic.twitter.com/1KjBbZ2Wqt
— Kaitlan Collins (@kaitlancollins) June 12, 2024
I hope Nathan Wade was a spectacular boyfriend because he’s an absolute nightmare as a damage control specialist for the Fulton County District Attorney’s Office. Literally every word choice Wade went with made this sound manipulative and horrible for democracy — but he swears what sounds like a Very Bad Idea™ can be done!
As it turns out, he’s just about as good at the constitutionality thing as he is regarding both amatory discretion and word choice.
No sitting president has ever been charged with a crime. As the Cornell Legal Information Institute noted, the closest we’ve come is the arrest of Ulysses S. Grant on a speeding charge. Apparently, he was able to get his one-horsepower vehicle — quite literally, since it was a horse — up to enough of a gallop that a Washington, D.C., policeman detained him and issued him a fine. Grant made sure this didn’t repeat itself by getting a Yugo, which couldn’t outrun either or a horse or Grant himself. Part of that last paragraph was made up.
As for a serious crime — such as a state RICO charge based around the president’s decision to challenge the election results in the state in 2020 — nothing of that sort has ever happened. This is in spite of the fact that there have been instances where a criminal act committed while the president was in the White House was indeed on the table.
You may remember there was ample evidence that Bill Clinton committed perjury and obstruction of justice in the Monica Lewinsky scandal; while he was impeached, eventually surrendered his law license for a period and paid a fine, the matter was officially handled through the constitutionally outlined impeachment process, as it should have been.
While Richard Nixon resigned mere days after the “smoking gun” tape indicated he knew about the origins of the Watergate break-in well before he said he had and had helped direct the cover-up, there was never a serious effort to federally prosecute him for it while in office, even after it became increasingly clear that his statements about what he knew were at variance with the facts. Again, the avenue chosen was the impeachment process. Once he left office, he was subject to criminal prosecution, but he was given a pardon by President Gerald Ford.
Trump’s case would be unique since, as the Cornell Legal Information Institute noted, “no court has been given the opportunity to rule on the topic.” That said, there is a body of constitutional scholarship that indicates that, no, a president cannot be dragged into to court.
First, there’s precedent in government policy: “The Department of Justice (DOJ) has a continuing policy since the 1970s that sitting presidents cannot be indicted as it would unconstitutionally prevent them from performing their duties as the head of the executive branch,” the Legal Information Institute noted.
“Essentially, if a president became indicted, this position holds that the entire Executive would be compromised from fulfilling its obligations given the unique powers of the president. This privilege does not extend to any other person, including the vice president. This line of reasoning has been supported by Supreme Court Justice Joseph Story in a treatise and strongly argued for by Justice Samuel Alito in a dissent in Trump v. Vance.”
Also, a research paper published in March by the nonpartisan Congressional Research Service, Congress’ in-house think-tank, noted that the DOJ’s Office of Legal Counsel takes the position “that sitting Presidents do possess absolute immunity from criminal prosecution, at least while they hold office.”
The OLC, the paper said, “bases this criminal immunity on the separation of powers, reasoning that imprisoning, prosecuting, or even indicting a sitting President would ‘unduly interfere’ with the President’s ability to ‘perform his constitutionally assigned duties.’ Each stage of the criminal process would, in OLC’s view, impose unacceptable burdens and distractions on the presidency that would outweigh the public interest in criminal accountability.
“OLC acknowledges however, that a President’s immunity from criminal process is ‘temporary’ and ends when a President leaves office. In a 2000 opinion, OLC reasoned that ‘the constitutional structure permits a sitting President to be subject to criminal process only after he leaves office or is removed therefrom through the impeachment process.’”
In other words, while the question is untested, the preponderance of thought on the matter — assembled by scholars far more immersed in the workings of the Constitution than Mr. Nathan Wade — seems to indicate sitting presidents can’t be prosecuted. But, beyond that, is this the case that Wade wants to break the mold?
It’s a dubious thing to bring a former — and possibly future — president before a court for honestly believing he won the state of Georgia in 2020. It’s even more dubious to charge him and those in his orbit with RICO violations when there appears to be no proof of a cohesive, directed criminal conspiracy — a necessary element of any RICO charge. We’ve had presidents who have escaped prosecution for blatant perjury and obstruction of justice, and this is where Nathan Wade wants to cross the Rubicon?
Note to Fani Willis: The next time you want to jeopardize a case that could change the course of American political history by having a fling, pick a better fling-mate.
