Anxiety attack!

What if? What then?

I’m getting a lot of phone calls.  I’ve done two podcast interviews in two days.  The impression that’s coming across the wires is that people’s hearts are in their throats somewhere up there around their tonsils.

The questions I keep getting asked are, What if he wins?  What then?  So, let’s take a what if and a what then and have a look at it.

The possibility of a Trump victory has been there all along.  It shouldn’t be too hard to think back to the Trump-Biden debate on June 27.  How did you feel about after 15 minutes?  The screen of my phone almost exploded with all the meltdown messages that poured in during the debate.  Afterwards, the silence was, as they say, deafening.

If you stuck your head out the window on Sunday morning three weeks later when President Joe Biden took a bow and handed the reins over to Vice President Kamala Harris, you could have heard the collective Democratic Party sigh of relief anywhere you were.  The Harris campaign amazed pundits and regular Democrats alike as they cranked up the motor and got going.  As I said the other night, watching the polls since then could make you seasick.  The words “toss up” have been written so many times over the last few weeks, the letters are wearing off computer keyboards and cable news hosts are going hoarse from uttering them so often. 

But here we are, and the what if anxiety level is at hurricane strength.

So, let’s take a look at would be likely to happen if Trump goes through with his threat to arrest and prosecute Chuck Schumer, among others who include Hillary Clinton, Nancy Pelosi, Liz Cheney, and any human being with the last name Biden.  Let’s use Senator Schumer as our example. 

Trump would be unable to arrest Schumer on a state charge, so the arrest would be federal and carried out by the FBI.  Trump would have fired both Merrick Garland and Christopher Wray, neither of whom would order the arrest of a sitting United States Senator on spurious grounds, so Trump would have appointed an acting attorney general and FBI Director in order for the arrest order to be given.

FBI agents would show up at Schumer’s office or his residence in New York and place him under arrest. He would be transported to the nearest federal courthouse to be booked, fingerprinted, and have his mugshot taken.  He would be released pending a court appearance for his arraignment.

I think we can assume that Chuck Schumer would show up in federal court with an attorney of some serious standing, perhaps a former Solicitor General such as  Elizabeth Prelogar, or Neal Katyal.  Maybe he would call upon a former U.S. Attorney General to represent him, like Eric Holder or even Alberto Gonzales, a Republican who served under George W. Bush and recently announced that he is supporting Kamala Harris. 

When people like former solicitor generals, who argue for the United States before the Supreme Court, or former attorneys general show up in a federal court, notice would be taken, especially by the magistrate judge who would likely be assigned the arraignment. 

I will hazard a guess that one of Schumer’s attorneys would waste no time in challenging the validity of whatever “crime” Trump’s insta-acting-attorney general might have ginned up for the occasion.  I would expect that a motion would be made to read into the record quotes from Donald Trump threatening to arrest and prosecute Schumer in retaliation and revenge for his own arrests and prosecutions.  I would expect that cases from district courts, appeals courts, and the Supreme Court would be cited to show the illegality of retaliatory prosecutions.  A motion would be made to throw out the charges.  I would expect the magistrate judge to do just that.

We have seen before what happens when Trump deploys rhetoric attempting to climb courthouse steps.  In 2020, Donald Trump lost 61 times when he went to court with spurious claims of election fraud that could not be proven.  I will go out on a limb and state that I am certain any attempts by Trump to fraudulently arrest and prosecute his political opponents will meet the same fate.

Now let’s discuss the likely fallout.  If arrested and detained on, yes, trumped up charges, Senator Schumer would have the opportunity to pursue criminal and civil cases for false arrest.  Trump has said he will pardon anyone who does his bidding as he pursues his campaign of retribution, and his power of pardon would let the acting attorney general and Director of FBI and the agents involved in the arrest off the hook criminally. 

But Schumer could then pursue a civil case seeking damages for his false arrest, and he could name all of the above in such an action.  Article II, Section 2, Clause 1 of the Constitution conveys upon the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  That does not include the power to pardon people who face civil lawsuits or who have suffered civil damages.  For example, Trump would have no power to relieve Rudy Giuliani of the $148 million judgement against him that he owes to Ruby Freeman and her daughter, Wandrea "Shaye" Moss, who won their lawsuit against him for defamation.

One loss in a civil lawsuit by anyone following Trump’s orders to carry out fraudulent government retribution against his enemies would no doubt create problems for Trump if and when he orders further acts of retribution.

Another scenario was presented to me by my wife Tracy:  What if Trump sends out the Proud Boys to carry out a “citizens arrest” or something similar of a reporter or pundit or cable news host who has angered him over the past few years?  As unlikely as that would have seemed before now, I think it’s not out of the question, so what might happen in that circumstance?

Proud Boys showing up at your doorstep and putting zip-ties on your wrists and forcing you into a truck adorned with Trump stickers would be kidnapping, pure and simple.  That’s a crime in every state in the Union, and it is a serious one.  In the state of Pennsylvania, it is a first degree felony, punishable by up to 20 years in prison.  Donald Trump would have no power to pardon a Proud Boy or anyone else convicted of kidnapping one of his enemies, no matter how much he hates him or her.

The message here is two-fold.  One, most, if not all, of Trump’s threats are hollow, and while they cannot be ignored, they do not present serious cause for worry.

Two, the way to ensure that none of this madness ever comes to pass is to get out and vote for Kamala Harris.