.. that it would be a mistake to keep Trump off the ballot, that the people should decide so he and his cult supporters will not cry ‘foul’ when he loses the election by vote counting.

Does any rational person truly believe that if Trump remains on the ballot and loses the election by vote count (with, of course, the Electoral College factored in), he will abide the result he refused to accept in 2020? Is there any plausible basis to think that his cult supporters, many of whom claim he is their God’s messenger, will just say, “oh well, we fought the good fight and lost so let’s just move on?”

Bear in mind that Trump is arguing now that because he was still President on January 6, 2021, he cannot be held criminally accountable for anything he did as President. That’s right, his brief to the U.S. Court of Appeals for the District of Columbia Circuit, to which the U.S. Supreme Court referred the immunity case, asserts Trump is absolutely immune from anything he did while President. He is arguing that everything that happened regarding the 2020 election dispute was within the broad range of presidential responsibilities and actions that are absolutely immune from any form of prosecution. If he loses in the Circuit Court, he will make that same argument to the Supreme Court, playing for time, his normal strategy when called to account for his many crimes and civil offenses.

The Supreme Court’s decision to deny certiorari to the Special Prosecutor gives Trump more chances to achieve his goal of delay. His strategy is that if he can avoid a definitive finding of criminal guilt until he wins the 2024 election, he will then pardon himself. That act will, of course, be challenged and he’ll almost certainly lose the argument, well into his presidency. At that point he will simply say: “You’ve made your decision, now try to enforce it.”

I understand the argument that his supporters will not tolerate his exclusion from the ballot in 2024 because they are morally certain he committed no crimes and even if he did, so what? The people should decide who they want for President, not the courts.

That’s a nice idea if everyone were going to play by the same rules. But the reality is that Republicans are doing everything they can to suppress Democratic votes. Trump has already convoluted his lead in the Republican nomination process to claiming certain victory in 2024. What then can be expected if he loses? Another January 6 only much worse?

I have read the Trump brief before the D.C. Circuit in which he argues that everything he did, including particularly his actions leading to and on January 6, was an “official act” of the President and thus absolutely immune from question in the courts. Only Congress, his arguments goes, can punish criminal conduct by a President and only by impeachment. If found “not guilty” in impeachment, a certainty in any Senate with even a large minority of compliant Republicans, his argument is that it would represent Double Jeopardy to try that President for crimes in the courts.

I believe Trump is wrong yet again for several simple but fundamental reasons:

• Trump’s “concerns” about the validity of the election had no factual basis, as proven by losing 60+ lawsuits;
• Attempts to overturn the results by pressuring local election officials and submitting slates of bogus electors are not plausibly “official acts” within the responsibility of a president;
• Impeachment is not a criminal procedure even if crimes are at the heart of the allegations; it is a political procedure, as conclusively evidenced by the process followed in Trump’s specific case (refusal to call witnesses, being just one example) and by the Constitutionally-limited penalty that could be applied if a guilty outcome were determined; therefore, Double Jeopardy does not attach to an impeachment,

Let’s examine that.

First, Trump argues, “The indictment alleges five types of conduct, all of which constitute quintessential Presidential acts.” The Trump brief lists those acts as:

(1) “tweets and other public statements about the outcome of the 2020 federal election, contending that the election was tainted by fraud and irregularities;”

(2) “Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice about investigating election crimes and possibly appointing a new Acting Attorney General;”

(3) “Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities;”

(4) “Trump communicated with the Vice President, in his legislative capacity as President of the Senate, and attempted to communicate with other members of Congress in order to urge them to exercise their official duties with respect to the certification of the federal election according to President Trump’s view of the national interest;” and

(5) “other individuals organized slates of alternate electors from seven States to provide a justification for the Vice President to exercise his official duties in the manner urged by President Trump.”

Those are fantasy versions of what actually transpired.

In reality, the indictment of Trump charges a different state of facts:

• Conspiracy to Defraud the United States— “using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government;”

Trump “spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and [Trump] knew that they were false.”

“The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

“The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”

“The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.”

• Conspiracy to Obstruct an Official Proceeding— “to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote;”
• Obstruction of, and Attempt to Obstruct, an Official Proceeding— “that is, the certification of the electoral vote;”
• Conspiracy Against Rights— “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.”

I will spare you the rest of the extensive details in the indictment. It comprises 45 pages of specific allegations of conduct, not just “speech” or “communications,” engaged in by Trump and his co-conspirators to overturn the election based on false and illegal allegations for which no evidence existed, and which had been rejected in some 60 lawsuits filed on Trump’s behalf.

The contention that the indictment is just about some tweets and some random communications about election fraud that were plainly “official acts” of the President acting as President is preposterous and false.

The Trump brief claims that “the text of the Constitution, through the Impeachment Judgment Clause, presupposes criminal immunity. That Clause dictates that a President may be criminally charged only if he is the “Party convicted” in an impeachment trial.” That Clause says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Bear in mind that Trump simultaneously makes the argument that Impeachment is a criminal proceeding and thus once tried for asserted crimes and acquitted, Double Jeopardy attaches, and the President cannot be criminally prosecuted for those same crimes.

And so, ipse dixit, according to Trump, he gets a complete pass on his attempts to overturn the 2020 election. For the initiated, ipse dixit means: “He himself said it; a bare assertion resting on the authority of an individual.” http://tinyurl.com/yc3pdcrm In other words, Trump said it, so it’s true.

Fortunately for the country, that’s not how things work. It is elementary that in conspiracy, which is what Trump is charged with in three of the four indictment counts, these elements must be satisfied:

• • Two or more persons
  • intentionally make an agreement
  • to violate federal law or defraud the United states, and
  • commit some overt act in furtherance of the agreement.

The indictment charges and explains in gruesome detail the unlawful conspiracies in which Trump and others engaged to overturn the election result that Trump knowingly and falsely claimed had been stolen through fraud.

To take but one example (Georgia), Trump didn’t just “communicate” with “state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities,” as claimed in his brief. No, he pressed them repeatedly to “find” enough votes to overturn the result of the election based on false claims of stolen votes. He was aided in all his efforts by others with whom he had reached an understanding (agreement) that they would continue fighting the election outcome regardless of the evidence (the facts). He continued doing this up to and through January 6, 2021.

Trump’s claim that his statements and conduct clearly fall within the “‘outer perimeter’ of [the President’s] official responsibility” is preposterous on its face. The brief effectively concedes that point in multiple places where it argues that “When the President “acts[s] in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear tan that [his] acts are only politically examinable.” Trump Brief at 29.

Similarly, Trump’s claim that “Because the Constitution specifies that only “the Party convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and Punishment,” … it presupposes that a President who is not convicted may not be subject to criminal prosecution,” citing as authority, naturally, the writings of Antonin Scalia offering this quote: “When a car dealer promises a low financing rate to ‘purchases with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.” Trump Brief at 26-27.

Trump’s argument might have some force if the impeachment process had the attributes of a criminal trial, but it doesn’t, as plainly demonstrated by the way in which his impeachment for his conduct before, on and after January 6 was handled.

Trump’s brief repeats the claim many times that his conduct covered by the indictment consisted entirely of “official acts”, but the brief nowhere explains how efforts to overturn an election based on false claims constitute “official acts” of the President. He doesn’t explain it because he can’t. The argument is ridiculous.

The same is true of the other major elements of Trump’s arguments, such as that.

The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a President for official acts—despite ample motive and opportunity to do so, over centuries—implies that the power does not exist.

That argument assumes the answer in the question: were Trump’s conspiracies “official acts?” Nowhere does the Trump brief establish or make a serious effort to establish that they were.

Calling Trump’s effort to subvert the election “core political speech and advocacy” does not make it so. Trump once said, ““I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose voters.” Trump would likely argue that shooting the particular person was “speech” in defense of his presidency. This example illustrates the danger of granting unlimited immunity to someone who recognizes no legal, moral, or other limitations on his entitlements.

Trump further claims that the law under which he was indicted “dramatically stretches the language of vague criminal statutes in novel interpretations in an attempt to criminalize core political speech and advocacy.” And, he argues, this problem is compounded by the fact that “Criminal prosecution … requires only a single enterprising prosecutor and a compliant grand jury drawn from a tiny sector of America.”

He is wrong because in both cases EVIDENCE is required. Trump didn’t hesitate to seek the rulings of the judicial system when he believed that allegations alone could overturn the results of the presidential election in key states. When he lost 60 cases, he decided it was ok to turn to extra-judicial means to achieve his goal of remaining in office. There is nothing vague about criminal conspiracy statutes under which he is charged, and he’ll have a full opportunity, like every other American, to defend himself in court.

Piling one false premise on another does not improve his argument. His brief claims there were “widespread reports of election fraud” that he was entitled to address, but those reports were by people working in concert with Trump and he knew the claims were false.

The brief’s attempt to show that his “communications” with state election officials (Georgia comes to mind) were merely “taking steps to ensure the integrity of federal elections, such as communicating with state officials who play a critical role in administering those federal elections.” The tapes of his attempts to persuade George Secretary of State Raffensperger to change the vote count there make a laughingstock of this argument.

Even more absurd is Trump’s claim that “communicating with Members of Congress, including the Vice President in his capacity as President of the Senate, about their exercise of their official duties lies at the core of Presidential responsibility.” That’s now what Trump did. He demanded, repeatedly and in multiple venues and contrary to advice from multiple credible advisors, that the Vice President reject electoral votes lawfully and properly certified by the states. To argue that “organizing contingent slates of electors to support the President’s advocacy to the Vice President and Congress is likewise an official act” is preposterous on its face.

Trump’s claim that Double Jeopardy attaches to his acquittal in the second impeachment also fails because, among other things, the impeachment was not for the “same offense.” The fact that the Constitution expressly limits the punishment that can be imposed for a guilty finding conclusively demonstrates that the impeachment was not a criminal proceeding under a criminal statute. A subsequent prosecution would be required to impose the criminal penalties, according to the express wording of the impeachment clause.

The Circuit Court should make short work of Trump’s ludicrous arguments and send the case back where it will ultimately be decided anyway: the United States Supreme Court where we will learn, once and for all, whether this Court is still tethered to the Constitution or whether it has become, as many of us believe, a political arm of the Republican Party. This case should settle any doubts about that and then, the fate of democracy in America will be determined.

********

Note for the New Year: the peril to our democracy grows with each passing day. If you believe the posts in this blog have any value, feel free to share links to them with your own social media networks.