Category Archives: Politics

Trump’s Documents – Trump’s Crimes

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By now you are likely aware that Trump’s attempts to prevent the disclosure of emails and other documents related to his attempted coup on January 6 are failing across the board. This is clearly the correct outcome. The observations of one judge, in particular, have attracted some news attention but, as usual, have disappeared into the fog of astonishing disclosures about Republican obstruction and corruption in Congress and elsewhere.

I am therefore using this forum to share with you a few quotations from the March 28 opinion in Eastman v Thomson, the federal District Court opinion that heard Trump attorney John Eastman’s claims of attorney-client and work product privilege for a tranche of 111 emails demanded by the January 6 Select Committee. These messages related to Eastman’s role, and Trump’s actions, in Trump’s legal and political strategy regarding the results of the 2020 election. [NB: footnotes and citations, the bane of effective communication, have been omitted; my helpful headings are underscored & italicized; opinion points of emphasis bolded by me] [NB2: the opinion is 44 pages long; you can read the whole thing here, https://bit.ly/3tZ0tax , but the gist is set out below. I read it so you don’t have to.]

There Was No Election Fraud in 2020

In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud.

… after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.”

By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.

Eastman’s Plan to Overturn the Election

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.

Knowing that his legal theories were invalid, Eastman addressed the mob that assembled on January 6 at Trump’s invitation:

We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office.

But,

Before the Joint Session of Congress began, Vice President Pence publicly rejected President Trump and Dr. Eastman’s plan.

Then, and then, they threw themselves on the railroad tracks …  [NB3: paraphrase of 1969 song, Along Came Jones]

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As the attack progressed, Dr. Eastman continued to urge Vice President Pence to reconsider his decision not to delay the count.

The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.”

As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”

 Refusal to Produce Documents to January 6 Select Committee

 Dr. Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment privilege against production.67 During his deposition, Dr. Eastman asserted his Fifth Amendment privilege 146 times.

 NB4: You know, the Fifth Amendment that says you don’t have to testify to facts that might incriminate you. The government must find someone else to incriminate you. Or some documents ….

 The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts.

Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court.

The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.

Trump Committed Crimes

The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding.

President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.

Together, these actions [meetings at White House, statements to the January 6 mob] more likely than not constitute attempts to obstruct an official proceeding.

Dr. Eastman does not dispute that the Joint Session is an “official proceeding.”

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

President Trump and Dr. Eastman justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election.

President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification.

Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.”  But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious.

… Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

… the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

President Trump likely knew that the electoral count plan was illegal.

President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.

Dr. Eastman himself repeatedly recognized that his plan had no legal support.

Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law….”

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election.

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.

Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.

Finally,

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

The Stench from the Bench

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The Washington Post reported recently that Supreme Court Justice Neil M. Gorsuch would join Mike Pence, Ron DeSantis, and Trump’s White House press secretary Kayleigh McEnany in speaking to the Federalist Society. They did and the media, as reported, was excluded. https://wapo.st/3 Jua6Dz  Even rev.com, the repository of many political speeches, could not acquire a transcript.

 I have it on pure speculation, good enough in a Trumpworld, that in a rare act of dexterity, Mike Pence got off his knees and stood erect at the podium during his portion of the show. One wonders how he was received given his shocking one-time decision to comply with the Constitution and the law in connection with Trump’s ongoing attempt to overturn the 2020 election by whatever means will work for him, including violence against the police.

A related question is hanging regarding DeSantis who swings between sycophantic adoration of Trump and hints that he may run against Trump in 2024. McEnany has no such problem. She’s not running for anything but the money. Her connection with the truth is so remote she could satisfy her obligations by just sending a copy of Big Little Lies to sit on the podium during Pence’s talk.

This wasn’t Gorsuch’s first such speech. He did a victory lap at the Federalist Society in November 2017 just after his confirmation to the Supreme Court. https://politi.co/3LySkRt Not surprisingly, perhaps, the only other Justice present then was Justice Alito who has spoken to the Federalists multiple times. In Gorsuch’s 2017 speech, he,

vowed to continue to expound the group’s favored judicial philosophies from his new post. “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch,” the justice vowed.

Very interestingly, neither the Supreme Court nor the Federalist Society would say whether Gorsuch was paid to appear and, if so, by whom. Why, I wonder, would they not answer that simple question if he were not going to be paid? Refusing to answer in this context is analogous to pleading the 5th Amendment.

To be fair, it is reported that “liberal justices” are also “often guests of progressive organizations such as the American Constitution Society.” Despite all of that, or because of it, the justices are making public statements defending the high court’s impartiality and integrity. Retiring Justice Stephen Breyer wrote in his book that,

“Political groups may favor a particular appointment but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

Well, maybe not “all of us.” The sordid conduct of some Justices has now reached the nadir of ethical practice. Justice Clarence Thomas, for example, has defended the court’s “independence” during a lecture at the University of Notre Dame, but failed to mention that his wife, Ginni Thomas, is an avowed right-wing sycophant and Trump lover. She has been widely reported to have played a role in the January 6 attack on the Capitol, has argued far and wide that the 2020 election was stolen, and on and on. And now, we have reports that Ms. Thomas texted multiple times with Mark Meadows, then serving as Chief of Staff to Trump, that Meadows should do everything in his power to overturn the election.

As you likely recall, Thomas was the sole dissenting vote in the case about whether Trump had to turn over documents to the January 6 Select Committee. In Thomas’s participation in that case, there was no mention of his wife’s activities and no apparent concern about the grotesque conflict of interest, or appearance thereof. He apparently thinks he has no disclosure obligations, no recusal obligations regarding participation in cases in which his spouse is actively and aggressively interested.

Something is rotten here – ‘here’ meaning ‘right here,’ not Denmark – and the stench, has only gotten worse in recent days.

Lest we forget, judicial “ethics” also did not stop conservative icon Antonin Scalia from taking trips paid for by … someone not him. Indeed, according to New York Times reporting, Justice Scalia took more than,

258 subsidized trips … from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong. [https://nyti.ms/3Dk8fPE]

A private individual provided Scalia with a free room at his ranch even though he had business before the Supreme Court. Again, according to the Times,

legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

WHAT????

All my years in private practice I fretted over conflicts of interest issues and Supreme Court justices can accept luxury hotel accommodations if they’re provided by “private individuals?!?!” No wonder “Supreme Court members took 1,009 paid trips between 2004 and 2014.” According to my calculations, that averages to 11 trips per year per Justice. And these are not trips to Bridgeport.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

The disclosure reports, such as they are, reportedly “show that the majority of the privately funded trips — by far — are sponsored by universities.” Maybe, but it’s a fair bet that on those trips, the Justices don’t stay in dorm rooms. Are we to believe the suggestion that universities paid to send Justices to Singapore, Hong Kong, Ireland, and Switzerland? I also note that universities are sometimes litigants or amicus curiae (friend of the court) in cases of major importance.

The cited Times story about all this was published almost exactly five years ago. At that time legislation was pending in Congress to “require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, like the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.” It should say “United States Judges Other Than Supreme Court Justices” because it apparently does not apply to them in any meaningful way – each of them decides for himself whether his conduct raises ethical concerns.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

“Society could benefit.” Perhaps, if that’s what the Justices always spoke about to other judges, law students and the like. Somehow, I doubt that’s what Scalia was talking about in Zurich.

Self-policing is a nice concept but fails in practice a good deal of the time. And since the Supreme Court is the top of the third branch of government, enshrined in the Constitution and the final word on the constitutionality of state and federal laws, self-policing seems a particularly inapt way of assuring fair, neutral decision-making.

The sitting Chief Justice has defended the current approach by arguing that the Justices “consult the code for lower-court judges in assessing their own ethical obligations.”  They may “consult” but are not bound to follow.” Extraordinary.

The “both sides-ing” of the ethical issues involving speeches and political leanings by Justices cannot be allowed to obscure the fundamental obligation of judicial neutrality embodied in the American Bar Association’s Model Code of Judicial Conduct [bolding is mine] set out below, along with the corresponding Code of Conduct for United States Judges.

ABA: CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Judges’ Code: Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary.

 ABA: CANON 2 
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Judges’ Code: Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

ABA: CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Judges’ Code: Canon 3

A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

ABA: CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judges’ Code: Canon 4

A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

 Judges’ Code: Canon 5

A Judge Should Refrain from Political Activity

The Judges’ Code is accompanied by a lengthy commentary on each section that only a lawyer can appreciate. Suffice to say that, in substance, the ABA Code and the Judges’ Code are essentially the same.

A commission appointed by President Biden to consider some of these issues stated in its report that “this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court. “It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said. Indeed, a masterpiece of understatement.

Ironically, I suggest without a hint of irony, Justice Alito who often speaks at the Federalist Society’s meetings, had this to say at its November 2020 convention:

Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead. When we look back at the history of the American judiciary, we can see many judges who were fearless in their dedication to principle …. [https://bit.ly/3uEG2iE]

Many, but not all, it seems. Furthering the irony, Justice Alito’s very next words were, “and one who is especially dear to the Federalist Society springs immediately to mind I’m referring to Justice Antonin Scalia.” To quote the infamous Mr. Barry, I am not making this up. I will have much more to say about J. Alito’s extraordinary speech in a future post.

Most of the comments I have read about this issue constitute the highest [lowest?] form of tiptoeing by the graveyard. The stench of politics wafting from the High Court is gag-inducing. The pussyfooting by Democrats only makes it worse: “Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements.” https://wapo.st/3DqCQLB “Exceedingly difficult?” Really?

This is the same Justice Thomas and his wife, Ginni, whose text messages to Mark Meadows, Chief of Staff to Trump urged Meadows and Trump to “stand firm” in pursuing legal strategies to overturn the election she claimed was stolen from Trump. In keeping with the circus-of-the-obvious that Washington has become, Democrats in Congress were shocked, yes, I say, shocked, and even “outraged” to learn of these messages. https://wapo.st/35r6N1C

Now some experts see problems with this sordid example of non-self-regulation:

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a professor and judicial ethics expert at Northwestern University law school.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack on the U.S. Capitol by hundreds of Trump’s supporters. “It is so stark.” [https://wapo.st/3LtMno4]

Not surprisingly to anyone with a functioning mind, “Congressional Republicans came to Clarence Thomas’s defense.” Names: Senate Minority Leader Mitch McConnell, House Minority Leader Kevin McCarthy, leading House shrieker, Jim Jordan. Icons of ethical conduct, every one. Some of them, McConnell in particular, it is said, oppose Thomas even recusing from January 6 cases. We should not be surprised since the last Republican known to believe in democratic principles appears to have died some time ago.

Experts in judicial ethics seem to be falling all over themselves to avoid speaking the dreaded words: RESIGN. The lawyerly hair splitting is disturbing because this is not a problem curable by disclosure or recusal in this case or that. The High Court may well end up deciding multiple cases arising from the January 6 attack and the conspiracies that led up to and followed it.

Even if recusal, the step short of resignation, were adopted by Thomas for those cases, the Court would be deprived of one voice and one vote in an already small group of decision-makers. The burdens on other Justice would increase and the possibility of tie-votes on crucial constitutional issues would increase. Ginni Thomas’s own words proof how tone-deaf and substance-indifferent she and her husband are: ““Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” Sure.

Just imagine:

“How was your day, honey?”

“Fine. Just the usual run-of-the-mill insurrection cases, you know, the attempts to overthrow the government. But you know we can’t talk about that, right?”

“Of course not, so let me tell you what I did today….”

More rules and self-enforcing principles of recusal do not serve the interests of the United States, which should be the only focus here. The interests and feelings of Justice Thomas and his wife are irrelevant. They brought this problem on themselves, and the country should not bear further the costs of their conduct. Thomas has already shown himself to be indifferent, at best, to the high ethically duty that should be the watchword of every Justice on the Court. Resignation is the only appropriate remedy, and it should be forthwith, before more interference with the Court’s business and more impairment of its already wounded reputation occur.

Is It Too Late?

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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.

Oh No! Another Biden Gaffe! Or….

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The media and, of course, the Republican Party and even some Democrats are having conniption fits over President Biden’s statement about Vladimir Putin at the end of his speech in Poland: ““For God’s sake, this man cannot remain in power.”

Media reports indicate that this was an ad lib, not uncommon for this, or any other, president. Secretary of State Blinken, for example, “clarified” that,

We do not have a strategy of regime change in Russia or anywhere else, for that matter…. In this case, as in any case, it’s up to the people of the country in question. It’s up to the Russian people. [https://nyti.ms/37UHZjc]

To clarify Blinken’s clarification, the United States strategy today is not to take overt actions to push Putin out of power or other terminate his leadership position in Russia. Fine. It has been clear to anyone watching closely that this was the case all along. Neither the United States nor NATO is going to attack Russia to force Putin out. Biden didn’t necessarily say otherwise.

There are several “non-conniption fit” interpretations of Biden’s remark that are worth consideration. One example,

Julianne Smith, the U.S. ambassador to NATO, told CNN’s “State of the Union” that Mr. Biden’s remarks were “a principled human reaction” to the Ukrainian refugees he had met in Warsaw. [https://nyti.ms/37UHZjc]

There are others. One is that it wasn’t an ad lib at all, that it was planned just the way it played out. A signal, you might say, to the Russian oligarchy that their removing Putin by whatever means was fine with the United States. In other words, it was a “Who will rid me of this turbulent priest?” moment. [for those unfamiliar, see https://bit.ly/3DiFBi8] Then, of course, it was “walked back,” as planned. Keep ‘em guessing.

Maybe it was just a kind of prayer for divine intervention. Biden is quite religious so that’s a plausible expression of human angst from him.

Maybe it was just a profoundly humane response to the grief he felt in being with the refugees and so close to unprovoked death and destruction being wrought by the Russian invasion of Ukraine.

I, of course, have no inside knowledge of this situation. Maybe it was just a gaffe. If so, let he who has not gaffed throw the first stone. Then let’s move on.

The Republicans probably won’t. They’ll harp on this as long as the media gives them the play they so desperately want to make the president look bad even as we try to navigate the treacherous path between helping Ukraine stand up to a dictator hell-bent on imprisoning another independent nation while avoiding a nuclear provocation that could end up destroying all life worth living on the planet.

But the media should calm down. Even if Biden were expressing his personal desire that Putin be taken down, the attention to this is overblown and self-defeating. Better to just keep ‘em guessing.

 

 

Meme Time Again

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These photos and memes were captured from Twitter and Facebook. They present in images and a few words the essence of important messages for these times.

In closing, I want to note that Ukraine was never a threat to Russia. Putin’s claims otherwise are pretextual. His rationale of needing a bulwark against NATO likewise fails because, if he takes Ukraine, his new border will line up against multiple other current  NATO members. Then what? Will he stop there or is Ukraine Putin’s Sudetenland? If you’re not familiar with Sudetenland’s place in history, read this: https://bit.ly/3sqaddo 

We must not make that mistake again.

The Triumph of Hope Over Experience?

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Once again, the rush is on to drop mask mandates and “get back to normal.” Because, Freedumb. This past Presidents Day weekend we visited Wilmington and places along the way. Masks were already the marked exception, even for restaurant staff. Signs referring to masks were mostly gone or disregarded. In our 10-story hotel, one of the two elevators was out of service, many people were perfectly content to, maskless, get on the elevator with you.

As a society we have asked, nay, demanded of our health care workers in hospitals and elsewhere an extraordinary degree of commitment and sacrifice, not to mention life-threatening risk. Small wonder that so many have quit in exhaustion & despair. For a while we made celebrated their sacrifice as we would have for soldiers in time of war (Vietnam excepted)., but that time has passed, it seems.

There are other phrases for what we’re doing now. “Whistling by the graveyard” comes to mind. Dr. Chris Beyrer, professor of epidemiology at Johns Hopkins Bloomberg School of Public Health, summed it up nicely: “… this does look like the beginning of a next phase and let’s hope it lasts.” https://bit.ly/3smMxqk  Indeed, let’s hope. Experience suggests otherwise but we’ll see. I will be quite happy to be wrong about my skepticism.

The over-privileged whiny babies seem to have carried the day with their relentless complaining, arrogant ignorance about the science of the virus and violence. Their hatred and fear of the federal government, their obeisance to the Liar King Trump and other factors have led them to a degree of self-indulgence and dangerous behavior to themselves and others that defies understanding. They must have their seat at the bar, their time at the gym, whatever, and many will simply not accept anything else. Freedumb.

Now, we are on the verge of a shooting war with Russia, a nuclear-equipped country dominated by a former and ruthless KGB operative now essentially Russia’s president for life. Republicans around the country and in Congress have now progressed from the Big Lie of Donald Trump to overt support for a country with which the United States may be at war soon. Their traitorous conduct in supporting, perhaps even planning and certainly defending, the January 6 coup attempt has moved on to more adventurous treasons. Here are their names:

Rep. Elise Stefanik

Rep. Marjorie Taylor Greene

Rep. Lauren Boebert

Rep. Paul Gosar

Rep. Matt Gaetz

Rep. Andy Biggs

Rep. Jim Jordan

Rep. Greg Steube

Rep. Byron Donalds

Rep. Jody Hice

Rep. Thomas Massie

Rep. Kat Cammack

Rep. Jim Banks

Rep. Lee Zeldin

Rep. Bill Johnson

Rep. Dan Crenshaw

Sen. Ted Cruz

Sen. Tom Cotton

Sen. Ron Johnson

Sen. Marsha Blackburn

Sen. Tim Scott

Sen. Rick Scott

Sen. Marco Rubio

Sen. Cindy Hyde-Smith

Sen. Cynthia Lummis

Sen. Lindsey Graham

GOP Chairwoman Ronna McDaniel

GOP Leader Kevin McCarthy

GOP Candidate Ronny Jackson

All Republicans.

There was a time when American politicians would not criticize an American president when we was conducting the nation’s business overseas. And while they reserve the right to oppose U.S. engagement in armed conflict or declarations of war/authorization for the use of force, it was rare that they would overtly side with the enemy in an armed conflict.

No so, today’s Republicans. Given their statements and conduct, it does not challenge the imagination to think they would support Russia’s declaring that all of Europe was Russian territory. Recall Hitler. “The troops massing on your border are just a military exercise. Don’t be alarmed. Our territorial ambitions are quite limited. Believe me.”

But that is a subject for another day. In this post, I want to remind everyone, and hope they share it with others I can’t reach, how Donald Trump, in his official capacity as President of the United States, deliberately and repeatedly lied to the American people for over two years about the COVID-19 virus. In his constant lying, he persuaded his gullible followers that the virus was no threat, that masks were evil, that even the vaccine he claimed to have inspired was not to be trusted, and more. He admitted to having deliberately downplayed the threat in his interview with Bob Woodward. Of course, to deny that he downplayed it would have been another blatant lie because the record of his lies is clear and unflinching.

As a result, Donald Trump is personally responsible for the avoidable deaths of, most likely, hundreds of thousands of Americans. If you think that number is too large, remember that, as of February 22, 2022, the U.S. death total attributable to COVID is 932,894. It seems clear we will come near to or exceed a million dead before this is “over,” if it ever is.

Trump is responsible for many of those that could have been, and still could be, avoided if public health advice had been fully respected. Instead, acts of violence are perpetrated every week in airports and on aircraft, in restaurants and elsewhere – all in the name of Freedumb, encouraged by Trump and his cabal of traitors and incompetents.

It’s tempting, of course, to point fingers at the tens of thousands, or millions, of Americans who have fallen prey to Trump’s siren song. And they are worthy of profound disdain, particularly those who followed his call to storm the Capitol on January 6 and steal the election. Many Americans have proved themselves unworthy of the designation, “American.” They are soft, entitled, and unbending in their disrespect of the needs of others.

And, yet, here we are again, making political decisions about medical issues in our rush to deflect the anger of the self-absorbed cry babies who refuse to wear masks, reject vaccines, and generally behave in a way that assures the pandemic will remain with us longer, perhaps forever. Mostly, if not entirely, in the service of the lies told by Donald Trump and the sycophants who continue to surround him and do his bidding to unlawfully reinstall him as president. It’s a pathetic display of ignorance, arrogance, and insolence. It will not end well.

Here is a chronology of Trump’s lies and deflections about COVID-19. I don’t expect you to read all of the detail, but it may be useful in the coming elections. You may want to just skim through it to get the gist of just how many lies and deflections Trump said just in 2020.

The Year 2020 [italics & bolding added]

January 22:  “We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine,”

January 30: World Health Organization declares a public health emergency of international concern.

January 30: “We think we have it very well under control. We have very little problem in this country at this moment — five — and those people are all recuperating successfully. But we’re working very closely with China and other countries, and we think it’s going to have a very good ending for us … that I can assure you.”

January 31: The U.S. Department of Health and Human Services declares a public health emergency for the U.S.

January 31: HHS Secretary Alex Azar announces travel restrictions, effective February 2, prohibiting non-U.S. citizens, other than permanent residents and the immediate family of both citizens and permanent residents, who have traveled to China within the prior two weeks from entering the U.S. No consideration is apparently given to people coming to the U.S. from Europe who had been in China or in contact with Chinese people.

February 7: Trump Interview with Woodward: “It goes through air, Bob. That’s always tougher than the touch … You just breathe the air and that’s how it’s passed. And, so that’s a very tricky one. … It’s also more deadly than your – you know, your, even your strenuous flus. … This is more deadly. This is 5, you know, this is 5% versus 1% and less than 1%. You know, so, this is deadly stuff.

February 10: You know, a lot of people think that goes away in April with the heat — as the heat comes in. Typically, that will go away in April.

February 24: Trump in a tweet: The Coronavirus is very much under control in the USA. We are in contact with everyone and all relevant countries. CDC & World Health have been working hard and very smart. Stock Market starting to look very good to me!

February 25: China is working very, very hard. I have spoken to President Xi, and they’re working very hard. And if you know anything about him, I think he’ll be in pretty good shape. They’re — they’ve had a rough patch, and I think right now they have it — it looks like they’re getting it under control more and more. They’re getting it more and more under control. So I think that’s a problem that’s going to go away. 

February 26: …when you have 15 people, and the 15 within a couple of days is going to be down to close to zero, that’s a pretty good job we’ve done.

February 27: It’s going to disappear. One day — it’s like a miracle — it will disappear. And from our shores, we — you know, it could get worse before it gets better. It could maybe go away. We’ll see what happens. Nobody really knows.

March 2 — 5 average daily new cases

March 6 — 32 average daily new cases – increase of 5.4 x over 4 days

I don’t think people are panicking. I said last night — we did an interview on Fox last night, a town hall. I think it was very good. And I said, ‘Calm. You have to be calm.’ It’ll go away. 

March 10 — 102 average daily new cases – increase of 2.2 x over 4 days

We’re prepared, and we’re doing a great job with it. And it will go away. Just stay calm. It will go away.  

March 12 — 201 average daily new cases – increase of 2x over 2 days

You know, we need a little a separation until such time as this goes away. It’s going to go away. It’s going to go away. 

March 29 — 15,514 average daily new cases – increase of 76 x over 17 days prior

March 3O: Stay calm. It will go away. You know it — you know it is going away, and it will go away. And we’re going to have a great victory

March 31 — 19,337   average daily new cases – increase of 24 % over two days

It’s going to go away, hopefully at the end of the month. And, if not, hopefully it will be soon after that.

April 3 — 26,081   average daily new cases – increase of 35 % in 3 days

It is going to go away. It is going away. 

April 7 — 31,238 average daily new cases – increase of 20 % over 4 days

It did go — it will go away.

April 28 — 28,568 average daily new cases – decrease of 8 % over 21 days

But a lot of movement and a lot of progress has been made in a vaccine. But I think what happens is it’s going to go away. This is going to go away. And whether it comes back in a modified form in the fall, we’ll be able to handle it.

April 29 — 28,171 average daily new cases – decrease of 1 % over 1 day

It’s going to go. It’s going to leave. It’s going to be gone. It’s going to be eradicated. And it might take longer. It might be in smaller sections. It’ll be — it won’t be what we had. And we also learned a lot.

May 5 — 27,134 average daily new cases – decrease of 4 % over 7 days

And I think we’re doing very well on the vaccines but, with or without a vaccine, it’s going to pass, and we’re going to be back to normal.

May 6 — 26.830 average daily new cases – decrease of 1 % over 1 day

Because, you know, this virus is going to disappear. It’s a question of when. Will it come back in a small way? Will it come back in a fairly large way? But we know how to deal with it now much better. You know, nobody knew anything about it, initially. Now we know we can put out fires.

May 8 — 25.475 average daily new cases – decrease of 5 % over 2 days

Well, I feel about vaccines like I feel about tests. This is going to go away without a vaccine. It’s going to go away, and it’s — we’re not going to see it again, hopefully, after a period of time. You may have some — some flare-ups and I guess, you know, I would expect that. Sometime in the fall, you’ll have flare-ups maybe. Maybe not. But according to what a lot of people say, you probably will. We’ll be able to put them out. You may have some flare-ups next year, but eventually, it’s going to be gone. I mean, it’s going to be gone. 

 May 15 — 22.337 average daily new cases – decrease of 12 % over 7 days

We think we’re going to have a vaccine in the pretty near future. And if we do, we’re going to you had a problem come in, it’ll go away — at some point, it’ll go away. It may flare up, and it may not flare up. We’ll have to see what happens.

May 19: “When we have a lot of cases, I don’t look at that as a bad thing,” the president said. “I look at that in a certain respect as being a good thing, because it means our testing is much better. So, if we were testing a million people instead of 14 million people, we would have far few cases, right?

“So, I view it as a badge of honor. Really, it’s a badge of honor,” he added. “It’s a great tribute to the testing and all of the work that a lot of professionals have done.”

Days later, the U.S. recorded 100,000 known deaths from COVID-19. 

June 15 — 21.987 average daily new cases – decrease of 2 % over 31 days

So I think that’s — but even without that [a vaccine or therapeutics], you know, at some point this stuff goes away and it’s going away. 

 June 16 — 22,613 average daily new cases – increase of 3 % over 1 day

I always say, even without it [a vaccine], it goes away. 

June 17 — 23,380 average daily new cases – increase of 3 % over 1 day

…if you look, the numbers are very minuscule compared to what it was. It’s dying out.

But I will tell you, we’re very close to a vaccine, and we’re very close to therapeutics, really good therapeutics. And — but even without that — I don’t even like to talk about that, because it’s fading away. It’s going to fade away. 

June 18 — 24,195 average daily new cases – increase of 3 % in over 1 day

And it is dying out. The numbers are starting to get very good.

July 1 — 44,875 average daily new cases – increase of 85 % over 13 days

And I think we are going to be very good with the coronavirus. I think that, at some point, that’s going to sort of just disappear, I hope.

July 19 — 64,754 average daily new cases – increase of 44 % over 18 days

I’ll be right eventually. I will be right eventually. You know I said, ‘It’s going to disappear.’ I’ll say it again. It’s going to disappear, and I’ll be right. 

NPR: July 19: Trump Interview:   “Many of those cases are young people that would heal in a day,” “They have the sniffles, and we put it down as a test.” He added that many of those sick “are going to get better very quickly.”

At the time of Trump’s interview, more than 3.7 million coronavirus cases had been confirmed in the United States, and more than 140,000 Americans had died.

July 21 — 65,073 average daily new cases – increase of .5 % over 2 days

Well, the virus will disappear. It will disappear.

July 22 — 65,321 average daily new cases – increase of .4 % over 1 day

We’re gonna beat it, yeah. We’re going to beat it. And with time, you’re going to be it — time. You know, I say, it’s going to disappear. And they say, ‘Oh, that’s terrible.’ He said — well, it’s true. I mean, it’s going to disappear. Before it disappears, I think we can knock it out before it disappears. 

August 5 — 56,585 average daily new cases – decrease of 13 % over 14 days

This thing’s going away. It will go away like things go away… 

 It’s going away. No, it’ll go away like things go away. Absolutely. No question in my mind. It will go away. Hopefully sooner rather than later.

August 7 — 54,756 average daily new cases – decrease of 3 % over 2 days

And we’re getting them [manufacturing jobs] even in a pandemic — which is disappearing; it’s going to disappear.

August 13 — 56,371 average daily new cases – increase of 3 % over 6 days

Think of it, we’re almost back to where we were [stock market], and we’re still in the pandemic, which will be going away, as I say, it’ll be going away. And they scream, how you can you say that? I said, because it’s gonna be going away.

August 17 — 51,244 average daily new cases – decrease of 9 % over 4 days

And as soon as the plague is gone — we have vaccines coming, we have therapeutics coming, and it’s going to be gone. And it’s gonna be gone soon.

And the China Plague will fade.

August 24 — 42,123 average daily new cases – decrease of 18 % over 7 days

It’s all coming back so fast and you’ll see it, and the pandemic goes away. The vaccines are going to be, I believe, announced very soon.

August 31 — 41,719 average daily new cases – decrease of 1 % over 7 days

Well, once you get to a certain number — you know, we use the word herd, right. Once you get to a certain number, it’s going to go away. 

September 15 — 38,922   average daily new cases – decrease of 7 % over 16 days

It is gonna disappear. It’s gonna disappear. I still say it.

NPR: September 21: Interview:   “It affects elderly people, elderly people with heart problems, if they have other problems, that’s what it really affects, that’s it. In some states thousands of people — nobody young — below the age of 18, like nobody — they have a strong immune system — who knows?” Trump said.

“Take your hat off to the young because they have a hell of an immune system. It affects virtually nobody,” he added. “It’s an amazing thing — by the way, open your schools!”

October 10 — 47,466 average daily new cases – increase of 22 % over 25 days

But it’s going to disappear. It is disappearing. And vaccines are going to help, and the therapeutics are going to help a lot.

October 15 — 53,152 average daily new cases – increase of 12 % over 5 days

The vaccine will end the pandemic. But it’s ending anyway. I mean, they go crazy when I say it. It’s going to peter out and it’s going to end. But we’re going to help the end and we’re gonna make it a lot faster with the vaccine and with the therapeutics and frankly with the cures.

October 16 — 55,144 average daily new cases – increase of 4 % over 1 day

Even without the vaccine, the pandemic’s going to end. It’s gonna run its course. It’s gonna end. They’ll go crazy. He said ‘without the vaccine’ — watch, it’ll be a headline tomorrow. These people are crazy. No, it’s running its course.

All of the foregoing occurred in 2020. Through Oct. 19, 2020 more than 220,000 people had died from Covid-19 in the US.  Well over a year after Trump’s last quoted remark above, the pandemic death toll in the U.S. is approaching 1,000,000 human beings of all ages and stages of life and health. We will never know precisely how many deaths and other long term/permanent devastating health impacts could have been avoided if Trump had not consistently and repeatedly misled his devoted followers, but it not unreasonable to believe that the pandemic would have entered the endemic stages long ago. Instead, the death and destruction continue. And Trump, well, Trump has moved on. His sole concern is with being restored to the presidency by whatever means – lying, cheating, stealing – will work.

Sources:

NPR: https://n.pr/35rwzSW

Factcheck.org: https://bit.ly/35x0SYd

Guardian: https://bit.ly/3HvJMrm

Vox.com: https://bit.ly/3t4ZJ2c

CNN: https://cnn.it/3M7wvsv

 

Trump May Skate on Obstruction of Justice

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I am very sorry to report that the statute of limitations [SoL] has run against Donald Trump’s acts of obstruction of justice when he asked FBI Director James Comey to leave Michael Flynn alone. More on that in a moment.

First, I want to call to all readers’ attention the Lawfareblog at https://www.lawfareblog.com. For readers interested in, and able to tolerate reading lawyers’ opinions, this site has some of the most serious, law-focused discussion you will find anywhere regarding many of the key issues facing the country. As in the analysis of Trump’s obstruction conduct in the earliest known case, sometimes the lawyers’ analysis does not have a happy outcome. But it is always thought provoking, written by serious and accomplished people. Lawfareblog.com is a vast resource that I hope you will visit and support.

Now, back to the bad news. The article that addresses the Statute of Limitations issue regarding Comey and Flynn is at https://bit.ly/3LJqn9q. The SoL expired on February 14 with no action by the Department of Justice to hold Trump accountable for the first of at least 10 instances of obstruction of justice identified by Mueller. The Special Counsel took no action because he believed he was bound by the DOJ position that it could not indict a sitting president. Mueller also had a very narrow understanding of the job he has been given, as detailed in the compelling and important book, Where Law Ends, by Andrew Weissmann, one of Mueller’s chief deputies. I reviewed the book at https://bit.ly/3LENvWF

It is a remarkable work, and everyone should read it.

Mueller’s failure to act left it to the Garland DOJ to pick up the case after Trump left the White House. He didn’t. The running out of the SoL means that, regarding the Comey-Flynn episode, we are SOL. As more time passes, the SoL will foreclose, one by one, any possible accountability for the other nine cases Mueller identified and several that, in my opinion, he inexplicably missed.  See, for example, my extensive discussion of the Mueller Report on the obstruction of justice issues:

https://bit.ly/33zmPFI

https://bit.ly/3LDkdYB

https://bit.ly/3JDzIhf

https://bit.ly/3oYM7o7

https://bit.ly/3I52g2I

The Lawfare blog includes a heat map that graphically illustrates the threat posed by the calendar for 14 possible charges of obstruction (4 more than Mueller identified and more in line with my analysis). In thinking about the obstruction issues, it is important to understand that there are three crucial elements to conviction on any charge:

Obstructive Act

Connection Between the Act and an Active Investigation

Corrupt Intent

By the end of July 2022, DOJ will lose the ability to charge Trump with the two instances in which even Mueller thought were the stronger cases for proving obstruction.

Meanwhile, as Lawfare notes with concern, DOJ remains mute.

At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.

The balance of the Lawfare article consists of an analysis of five scenarios regarding DOJ’s posture. Lawfare admits this is all speculation – it must be since AG Garland is not talking. Many of the five scenarios are decidedly offensive but that doesn’t mean they aren’t correct explanations of what is happening – and, not happening.

Lawfare then makes a compelling case for the Attorney General to explain to the country what is going on regarding Trump’s obstruction of justice. Silence is the least acceptable path forward. Lawfare is right about this, I believe. Read it, I urge you, and judge for yourself.

 

The Usual Suspects

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Eight Republican senators have written the Department of Justice to urge rejection of Delta Air Lines’ request for a unified no-fly list addressed to a specific cohort of passengers. The list is designed to add further deterrence against passengers who refuse to comply with government and airline policy regarding masks and who engage in violent aggressions against flight crews and other passengers. In some reported cases, these individuals have tried to open aircraft doors in flight, jeopardizing the lives of the passengers and crew as well as potentially people on the ground. They have also physically attacked air crew members.

According to Apple News, https://bit.ly/354uOLn, the story was reported in the Washington Post but seems to have been taken down. It was, however, also reported in The Hill. https://bit.ly/3rR4NYP So, as insane as this is, I am not making it up.

The authors of this masterpiece of obfuscation are:

Kevin Cramer – North Dakota

Ted Cruz – Texas

John Hoeven – North Dakota

James Lankford – Oklahoma

Mike Lee – Utah

Cynthia M. Lummis – Wyoming

Marco Rubio – Florida

Rick Scott – Florida

Why do I say it’s obfuscation?

  1. The senators admit that airlines are “free to deny service to any individual over past transgressions on their flights;”

Thus, the issue is not about the list; it’s about allowing the airlines to cooperate against violence without government sanction for such cooperation; the senators want less effective management of the issue rather than more effective management. Why are Republican senators siding with people who engage in violence in the air, jeopardizing the crews, passengers, and people on the ground?

  1. The senators’ main concern is not with the safety and convenience of most air travelers but with the opprobrium that will attach to the violators who, they say, are anti-maskers;

The letter claims the government-approved list “would seemingly equate them to terrorists who seek to actively take the lives of Americans and perpetrate attacks on the homeland. Indeed, it would. Because there is no functional difference between a “terrorist” and someone who attacks the crew because he objects to mask policies. It’s not about motive. It’s about threat. What will these upstanding senators have to say if one of their anti-masker constituents succeeds in bringing down an aircraft? Or when one of them kills a flight attendant or another passenger? Here’s what  they will say: “we strongly condemn any violence towards airline workers,” the equivalent of “thoughts and prayers” when the damage has been done.

  1. The senators’ motivation is driven in large part by their continued politization of the mask mandate the efficacy of which they claim is subject to “significant uncertainty,” citing only a Congressional hearing comment by the CEO of Southwest Airlines.

It’s true that Gary Kelly testified that masks “don’t add much” to the COVID-protection armory, an observation rejected by at least one other airline executive at the same hearing. But then Kelly contracted COVID. And then Kelly took the opposite position from his Congressional testimony. As reported by Bloomberg News in late January, Kelly said: “Adding the mask is an added layer of safety, and given the fact that we’re right in the midst of this omicron surge, now’s not really the time to revisit that question, in our opinion,” ….There will come a time when the mask won’t be necessary, and I think we’ll all look forward to that, but now is not the right time.” https://bloom.bg/3GUpuXZ [emphasis mine]

Did these Republican senators deliberately mislead the Department of Justice?

  1. The senators have apparently decided that people engaged in violent acts against flight crews and passengers are “not terrorists.” They’re … something else. Why? Because they said so. In fact, they don’t even approve of the anti-terrorist TSA no-fly list, citing “lack of transparency and its due process concerns.”

It’s true that there have been issues about “transparency and due process” regarding the no-fly lists. The fact that they could have been done better, despite the hysteria-driven fear of another attack on the homeland, is no reason to reject a cooperation arrangement that prevents violent passengers from simply choosing another airline next time.

  1. The senators express greater concern for the “constitutional right to engage in interstate transportation” than they do for the protection of the vast majority of passengers who comply with the law and respect the role of air crews in applying that law.

The senators produce no authority to support the point that there is a constitutional right to air travel despite the engagement in violent acts of resistance to government and airline policy. I don’t believe such authority exists. This is just another case of Republicans claiming that “my rights are superior to your rights.”

  1. Next, the senators pull out the traditional “slippery slope” argument, suggesting that there is a real risk such a list would lead to “future unrelated uses and potential expansions of the list based on political pressures.”

Thus, the Republican senators want to put you at risk today to prevent some possible future use of the list for political purposes. Of course, they don’t address how, or why, such misuse could occur in an industry as hungry for, and competitive in seeking, business as the airlines. This is the “be afraid” of your government routine that Republicans often turn to when all else fails. It violates the well-known principle that you don’t let the perfect become the enemy of the good.

  1. Finally, the last desperate straw: the senators want this issue turned over to Congress, where in the age of Republican obstruction, most good ideas go to die.

The senators know that no Republican senator would likely support legislation to create the list in question and that in any case it would take many months, but more likely years, for Congress to act. Meanwhile, every air passenger in the country will be exposed to greater risk because a small minority of people believe they have the right to attack flight crews and other passengers to protect “rights” they don’t have.

Is there a possibility that a no-fly list of the kind proposed by Delta could someday be abused? Maybe, but there is also at least an equal chance that as long as anti-maskers are willing to engage in violence aboard aircraft, a serious disaster may occur. Given the risks and the awful consequences, compared to the potential for misuse, the rational approach is the best one. Enable the industry to jointly respond by banning miscreants who engage in violence. Any violation of someone’s rights down the road can be addressed and no one dies. That’s the choice.

See also, https://shiningseausa.com/2022/02/09/terrorism-in-air-ban-perps/