Is It Too Late?

On Sunday, January 2, 2022, the New York Times published an Editorial entitled “Every Day Is January 6 Now.” https://nyti.ms/3qKLbEH Rather than summarize it, I am going to quote liberally from it so that it’s clear who is speaking and what is being said. I may add some thoughts of my own here and there, clearly indicated, and, of course, at the end.

This is not to say that I think the Times is the final word on this or anything. I have, and will continue to, criticize the writing in the Times and other media whose careless and/or deliberate use of words takes news reporting into another realm. A recent example is this headline: “American officials scrambled to clarify Biden’s suggestion that Putin ‘cannot remain in power.’” https://nyti.ms/3NlwD8a Three co-authors are shown and, presumably, at least one editor reviewed the headline before publication. Drop the word “scrambled” and you have the same news: that officials offered clarifications of Biden’s statement. That is the fact, shorn of the authors’ nuances implying confusion and that Biden was making a proposal rather than some of the other possible interpretations of his remark. See https://bit.ly/3tKPiTa It’s hard to avoid the conclusion that the Times was tilting the table against the President here. Why would it do that?

It’s likely part of the journalism philosophy that leads to “both sides-ing” stories. In any case, the practice is inconsistent with the editorial position of the Times on one of the most important issues of our time. Returning, then, to my main purpose here, I quote now extensively from the editorial of January 2, noting in passing that it is now March 28, another fact to which I will return at the end. Bear with me. This is really important. Really. [ As usual, the bolded text is my doing]

Jan. 6 is not in the past; it is every day.

It is regular citizens who threaten election officials and other public servants, who ask, “When can we use the guns?” and who vow to murder politicians who dare to vote their conscience. It is Republican lawmakers scrambling to make it harder for people to vote and easier to subvert their will if they do. It is Donald Trump who continues to stoke the flames of conflict with his rampant lies and limitless resentments and whose twisted version of reality still dominates one of the nation’s two major political parties.

In short, the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends. No self-governing society can survive such a threat by denying that it exists. Rather, survival depends on looking back and forward at the same time….

The effort extended all the way into the Oval Office, where Mr. Trump and his allies plotted a constitutional self-coup.

We know now that top Republican lawmakers and right-wing media figures privately understood how dangerous the riot was and pleaded with Mr. Trump to call a halt to it, even as they publicly pretended otherwise. We know now that those who may have critical information about the planning and execution of the attack are refusing to cooperate with Congress, even if it means being charged with criminal contempt….

Over the past year, Republican lawmakers in 41 states have been trying to advance the goals of the Jan. 6 rioters — not by breaking laws but by making them. Hundreds of bills have been proposed and nearly three dozen laws have been passed that empower state legislatures to sabotage their own elections and overturn the will of their voters ….

Thus the Capitol riot continues in statehouses across the country, in a bloodless, legalized form that no police officer can arrest and that no prosecutor can try in court….

A healthy, functioning political party faces its electoral losses by assessing what went wrong and redoubling its efforts to appeal to more voters the next time. The Republican Party, like authoritarian movements the world over, has shown itself recently to be incapable of doing this. Party leaders’ rhetoric suggests they see it as the only legitimate governing power and thus portrays anyone else’s victory as the result of fraud — hence the foundational falsehood that spurred the Jan. 6 attack, that Joe Biden didn’t win the election….

Polling finds that the overwhelming majority of Republicans believe that President Biden was not legitimately elected and that about one-third approve of using violence to achieve political goals. Put those two numbers together, and you have a recipe for extreme danger….

Democrats aren’t helpless…. They hold unified power in Washington, for the last time in what may be a long time. Yet they have so far failed to confront the urgency of this moment — unwilling or unable to take action to protect elections from subversion and sabotage. Blame Senator Joe Manchin or Senator Kyrsten Sinema, but the only thing that matters in the end is whether you get it done. For that reason, Mr. Biden and other leading Democrats should make use of what remaining power they have to end the filibuster for voting rights legislation, even if nothing else.

Whatever happens in Washington, in the months and years to come, Americans of all stripes who value their self-government must mobilize at every level — not simply once every four years but today and tomorrow and the next day — to win elections and help protect the basic functions of democracy. If people who believe in conspiracy theories can win, so can those who live in the reality-based world.

Above all, we should stop underestimating the threat facing the country. Countless times over the past six years, up to and including the events of Jan. 6, Mr. Trump and his allies openly projected their intent to do something outrageous or illegal or destructive. Every time, the common response was that they weren’t serious or that they would never succeed. How many times will we have to be proved wrong before we take it seriously? The sooner we do, the sooner we might hope to salvage a democracy that is in grave danger.

[End of Times editorial]

Three months have passed since that editorial was published. We are now a year and three months past the January 6 attack on the Capitol and on American democracy. Here’s where we are:

  1. No main planners behind the January 6 insurrection (referring here to members of the Trump administration, members of Congress and Trump himself) have been indicted,
  2. Members of Congress and others continue to spit in the face of the Select Committee to Investigate the January 6th Attack on the United States Capitol by defying demands, including subpoenas, for records and testimony.
  3. The Select Committee is moving at a pace that makes the tortoise in the famous tale look like War Admiral, the fourth winner of the Triple Crown. At this rate nothing of substance will have been accomplished by the mid-term elections of 2022.
  4. Attorney General Merrick Garland’s Department of Justice has not produced a single indictment of any of the principal conspirators behind January 6, or any indictments of those refusing to comply with lawful orders of the Select Committee, meaning that any indictment now almost certainly would not be tried before the 2024 elections.

I practiced law for 48 years, including conducting investigations of lying and highly resistant conspirators, and closely observed Watergate, the Clinton impeachment, and other sordid political matters. Strategies such as “run out the clock” are well-known by prosecutors. The statute of limitations has already run on at least one of Trump’s crimes. See https://shiningseausa.com/2022/02/18/trump-may-skate-obstruction-justice/

I understand the natural reluctance of prosecutors to bring cases they fear might lose and that might lead to judicial decisions with lasting negative effects on our politics. No one wants to be associated with losing a big case. But failing to bring a case that is justified by evidence, but where the law may be unclear, for fear of defeat is to be defeated already. You have beaten yourself and the country too. That’s where we seem to be now. We are defeating ourselves by allowing the primary perpetrators of the January 6 insurrection to escape swift justice.

Lawyers lose cases all the time. Every trial has a winner and a loser. It’s rare that losing a case has long-term consequences for the attorneys involved.

We’ve seen this before, as I noted in reviewing Andrew Weissmann’s remarkable analysis of the Mueller investigation in Where Law Ends: “rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.” https://bit.ly/3uTJ7M7 Among the leading ones were decisions not to interview Trump’s children who worked in the White House throughout his term.

Even more egregious was the decision not to force Trump’s hand regarding testimony under oath. I almost fell over yesterday when reading in Jeffrey Toobin’s True Crimes and Misdemeanors [started before the 2020 election but only now being finished – more on that in a future post] that Aaron Zebley, Mueller’s chief of staff at the FBI and a senior member of the investigation team, committed one of the worst negotiating sins imaginable.

A meeting was held between Mueller’s people and Trump’s defense team, for the purpose of introducing Rudy Giuliani as the new lead defense lawyer. According to  Toobin, Giuliani wanted to,

nail down Mueller’s commitment that he would follow the DOJ’s Office Legal Counsel policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236]

It appears that Mueller got nothing in exchange for this astounding concession that removed one of the largest leverages that Mueller had. I would not have believed this happened were it not consistent with Weissmann’s descriptions of the influence Zebley exerted at critical moments in the investigation.

Successful investigations require maximum pressure. I don’t mean that the investigators should behave unreasonably or unfairly. That approach would likely backfire at some point. But there is no reason whatsoever to give away leverage without securing at least an equal value in some other form. As it happened, Trump himself was never placed under oath  for an interview, never answered many of the written questions posed to him and almost certainly lied in answering many others in which the self-declared “stable genius” claimed to not remember much of anything. See my series of posts about the Mueller investigation, beginning at https://bit.ly/3tLT2Us.

The Select Committee is run by politicians so there is perhaps even less reason to expect world-class investigative technique, but if something doesn’t change soon, the entire point will be lost. In what universe do leaders of a democracy, all sworn to follow the law and sustain the Constitution, walk free in the face of evidence that they conspired to overthrow the democratically constituted government?

I say ‘evidence’ recognizing we don’t have all of it. But if all the evidence would show they were innocent, is it plausible that so many members of Congress and of the Trump administration would refuse to cooperate, refuse to produce documents, and refuse to testify under oath? Enough is already known to warrant very aggressive and immediate action to bring the Republican dogs to justice. ALL of them.

As the New York Times astutely said back in January 2022,

Jan. 6 is not in the past; it is every day.

The White House and the Department of Justice had better wake up before it’s too late.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s