What if Trump Issues a Writ of Prima Nocta?

A less ridiculous hypothetical than it should be

Most of image generated by Dall-E 3, Trump’s face from a photo by Gage Skidmore.

***Hey! FYI, I plan to do Komedy Klass next week, assuming that the global economy doesn’t collapse and no popes die (though you just never know these days). You can send your comedy anything to KomedyKlass@imightbewrong.org, I’ll read it, and I’ll pick one piece to be the focal point of our discussion. And of course, I have the stuff that people already sent, all of which was great except for one real pile of shit. You know who you are.

---

There’s a pattern to Trump’s second term wacky shenanigans/egregious abuse of the law. First, Trump does something that’s almost certainly illegal, like cancelling funding approved by Congress, sending people to a foreign prison without due process, or abusing an emergency law to impose tariffs. Next, somebody sues. And third — and this is where all three examples I just cited currently stand — the world floats in legal purgatory for an unspecified period of time while Trump continues to do the illegal thing.

This is not how our system is supposed to work. The executive branch is supposed to be constrained, first, by respect for the law — the oath the president takes when he’s sworn in is supposed to mean something. Also, a normal White House has lawyers who will sometimes tell the president “your plan is illegal”. Presidents usually reply to that by saying “then we’d better not,” the major exception being Nixon, who would respond to his lawyers’ warnings of illegality by saying “Then let’s make this plan part of Naughty Fun Secrets Club. Jews, Irish, Blacks.”

A second constraint is supposed to be Congress. The Founding Fathers imagined that Congress would respond to a rogue executive by getting their wigs, satin breeches, and other ridiculous 18th century garments in the most ghastly of twists. But they didn’t anticipate: 1) That party affiliation would become the organizing principle of politics, and 2) The level of servile bitchitude that would exist in Congress in the 21st century. Enlightenment thinking assumes human dignity, and the Founders didn’t foresee the breed of dickless pantywaists who would come to dominate Congress.

Neither constraint is working. The only constraint on Trump is the courts, and the courts are glacially slow. Even if the courts eventually force Trump to follow the law, he’s doing enormous damage while we wade through the ocean of appeals, injunctions, and other Confusing Court Bullshit that’s part of the legal process.

To get a sense of how big of a problem this is, imagine what would happen if Trump issued a writ of prima nocta. Prima nocta is the right claimed by feudal lords in medieval Europe to sleep with a bride on her wedding night — it’s sometimes called “droit du seigneur,” and sometimes called “first dibs on tappin’ dat azz”. Many historians consider this practice to be either a myth or greatly exaggerated, but on the other hand, it’s in Braveheart, and that movie was a box office smash and won Oscars, so I think that makes it true.

So: Suppose Trump signs an executive order giving him a right to sleep with any new bride on her wedding night. This is, obviously, extremely illegal and unbelievably gross. But how does Trump get stopped, and who stops him? Thinking that through illustrates our problem.

The executive order should never have been signed in the first place. Minimal deference to the law would have prevented it, and so would the smallest amount of human decency. But Trump has neither. He also seems to have no one in the White House who can talk him out of his insane schemes, which is product of Trump basically running American Idol For Embarrassing Hacks in the four years that he was out of power.

Congress should stop him. Such an outlandish move should be grounds for impeachment, but remember: Congress didn’t convict Trump of impeachment after he sat back while a mob tried to possibly murder them. Personally, if you cheer on a mob that’s trying to kill me, then you I are done — I’m persnickety about that type of thing. But Congress didn’t remove Trump for that, so they probably won’t remove him for anything. Congressional Republicans have repeatedly aided and abetted Trump while he does outlandish things, so we can’t assume that they’ll act differently here.

So, as always: It’s down to the courts. But to initiate a lawsuit, someone has to have standing to sue. Standing is a problem; it’s one reason why no one has sued Trump for ignoring the TikTok ban. To have standing, you have to prove that you’ve been negatively affected — would that mean that Trump’s executive order would need to be, uh…consummated before someone could sue? Possibly, and a lot of harm can be done while the “possibly”s and “maybe”s in the legal process are being sorted out.

Imagine that shortly after issuing the executive order, Trump gets on Zola and selects a bride to his liking. He orders 50 FBI agents to the woman’s house, and Pam Bondi sends them because she makes Waylon Smithers look like Rosa Parks. When armed agents begin rappelling down the sides of this woman’s house, does she say “Get out of here, this violates the 14th Amendment!”, or does she go with them, because the situation is confusing and scary? Also: Assume that the executive order specifies that any woman who defies the president’s wishes will be sent to a maximum security prison in El Salvador. That’s a credible threat, because Trump has already illegally sent people to prison in El Salvador, and the courts having been saying “Hey, stop” for a month, but the guys are still there.

The woman sues — maybe she frantically hand-writes a court motion on hotel stationary while Trump is in the bathroom “freshening up”. The motion goes to a judge who — thankfully — is not a Trump crony, and that judge files an injunction against the executive order. Does Trump follow it? He’s not following any of the court orders about the deportations to El Salvador. Also: What menagerie of appeals, stays, and other court shenanigans could Trump’s lawyers arrange? And how many brides could Trump bang in the moments when the EO is in effect? How much time would pass before the Supreme Court gets off their sweet asses and ruled? If they moved fast, would Alito and Thomas bitch about the Court ruling “in the middle of the night,” as they did in the deportations case (“Geez, we’ll enforce the Constitution IN THE MORNING, it’s LATE!”)? Would SCOTUS use clear language that forces Trump to stop, or would they create another "facilitate-but-not-effectuate" situation that gives Trump grounds to blow them off? This all seems ridiculous, but all of it is already happening, and it demonstrates how the courts are not built to be the only instrument keeping a rogue president in check.

Our system is supposed to have checkS and balanceS, not a single check-slash-balance. The courts are not supposed to have to do this alone. Human decency and Congress should be the first two firebreaks against a president doing whatever crazy shit the darkest reaches of his soul can imagine. I don’t see Trump developing a sense of human decency any time soon, so Congress needs to step up. They should reclaim the power that Trump stole from them, and they should prepare to impeach Trump if he won’t follow the law. Do I think that they’ll do these things? No — I think they are world-historic cowards. But I’d love to be proven wrong. And I’d love to be proven wrong before Trump tries for prima nocta, because I’m completely sure that it takes a lot longer for a ruling to work its way through the courts than it does for Trump to perform the sex act.

---