Republican Grinches – Get Over Yourselves

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You really must wonder how extreme Republican Trump worshippers can keep so many conflicted ideas in their minds at the same time.

The White House just had the Dorrance Dance Company perform there, doing a tap version of The Nutcracker. The First Lady Jill Biden posted a video of some of it on Instagram and, predictably, Fox News and the New York Post (the closest thing to a supermarket tabloid), went nuts. https://tinyurl.com/326drmsx For Trump acolytes who purport to oppose cancel culture, it’s interesting that they want to terminate Dorrance Dance because its website promotes racial justice. Fox and NYP prefer a police state like the one Donald Trump is promising to instigate if elected in 2024.

In keeping with Republican orthodoxy, Fox and NYP would prefer to continue spending billions and more to incarcerate “bad guys” rather than looking for constructive ways to reduce crime and improve social/economic equity in American society. It’s “just lock them all up” all the time for these people, all the while complaining about the cost of everything.

We saw the Dorrance Nutcracker performance at the Kennedy Center a few weeks ago. While I’m not generally that interested in tap dance as an art form (but loved the movie White Nights) and have only limited interest in the Nutcracker even as a classical ballet, the Dorrance show was amazing. The energy and creativity of the dancers were remarkable. They are plainly qualified to perform at the White House.

The show there was not about political or related issues. It was about art, and anyone with even a minimal artistic appreciation would see the glory in the Dorrance Company’s art. But not the Grinchy Fox News and New York Post. I’d wager they’d sing a very different tune if Dorrance’s website promoted “law and order” and “deport them all.” Will no one rid me of these troublesome negators of everything American?

What Records Does Donald Trump Hold?

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No doubt there are many, not least of which would be the most lies told per day/week/month/year before/during, and after his presidency. But perhaps the most important is the record for the number of felonies through formal indictments: 91. Before Trump, the average felony indictment count for U.S. presidents was zero. https://tinyurl.com/2p8tx8ak

I was surprised to learn that no U.S. president has ever been indicted for a felony prior to Trump. https://tinyurl.com/yd9rz8zy None. Others have been embroiled in scandals, of course. Republican icon Richard Nixon comes to mind. But actual felony indictments? Apparently, none, unless I’m misinformed by my usually reliable online research sources.

Even if a U.S. president was indicted in the distant past, I am confident that Trump, the apparent standard bearer for the Republican Party, the party of “law and order,” holds and will forever hold the personal record of being the most indicted criminal political leader in American history.

Will he also be the most indicted felon to hold a second term as leader of the once “free world?” Will he be the most convicted felon to hold a second term as leader of the once “free world?”

You decide. Only you can decide.

 

Humpty Dumpty Was President of U.S. 2017-2021

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Donald Trump, in one of his multitude of efforts through obfuscation and delay to avoid accountability for his many crimes against the nation and humanity, has stated what may be his most remarkable lie yet. In the litigation over whether he is disqualified from the Colorado ballot in 2024 due to his inciting the January 6 insurrection, Trump’s lawyers have declared that he never gave an oath to “support” the Constitution. https://tinyurl.com/3kdazbku

Here is text of the presidential swearing-in ceremony for Trump in 2017, and every other president:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Section 3 of the 14th Amendment, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Trump’s Colorado filing states:

The framers excluded the office of President from Section Three purposefully. Section Three does not apply, because the presidency is not an office ‘under the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.

From many decades of law practice in sometimes fraught circumstances, I am conscious of the pressure on lawyers to produce arguments that can strain credulity. They usually do this because they have nothing else, and the client demands they fight with anything and everything. So, they throw some legal slop at the wall and hope some of it sticks. I learned early, however, that such tactics usually do more harm than good and rarely convince experienced judges and neutral juries that an extreme position, lacking any basis in reason or precedent, should be embraced.

Here we have the former president of the United States, through his attorneys, flatly disavowing his oath of office. His lawyers are arguing, in effect, that “preserve, protect and defend” are not synonyms of “support.” In short, Trump is telling the Supreme Court,

Yes, the world saw me swear on a bible that I would preserve, protect, and defend the Constitution but that didn’t mean I support the Constitution. In fact, I don’t support the Constitution. I am opposed to the Constitution.

Now, imagine, if you can, that at his actual inauguration in 2017, Trump had placed his hand on the bible, Melania looking stricken behind him, and said to the world: “I decline to take the oath as prescribed. I don’t support the Constitution. I am opposed to the Constitution.” Imagine.

Trump’s lawyers are also arguing that the presidency is not an office “under the United States” and thus that the president is not an “officer of the United States,” as stated in the 14th Amendment, even though the president is the chief executive officer of the United States and is the repository of the “executive power” of the federal government as plainly stated in Clause 1 of Article II. By the way, this is the same Article II that Trump famously said conferred upon him the authority to “do whatever I want.” http://tinyurl.com/4jpuc2y9

The Trump position is right out of Alice in Wonderland:

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means what I choose it to mean – neither more nor less.

Alice’s retort, you may recall, was:

The question is … whether you can make words mean different things.

Trump would say, yes, of course, I’m Donald Trump and I can say ‘yes’ and mean ‘no.’ I can bow down before foreign dictators while claiming that I courageously stood up to them. I can say something with complete seriousness and later claim I was joking if people don’t like what I said. I’m like the governor in The Best Little Whorehouse in Texas who sings Side Step:

Ooh, I love to dance the little sidestep

Now they see me, now they don’t

I’ve come and gone

And ooh, I love to sweep around a wide step

Cut a little swath

And lead the people on!

Such foolishness may work in movies and childish fantasies but in the real world, Trump must be treated like an adult. He swore an oath before the world. That oath is prescribed by the Constitution. Trump may not be heard now to disavow his oath and its plain meaning. He is estopped, in the language of the law:

Estoppel is an equitable doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.[https://www.law.cornell.edu/wex/estoppel]

It is way past time that the courts brought the hammer down on Trump’s dissembling. Special Prosecutor Jack Smith has taken a major step in that direction by seeking immediate Supreme Court review of Trump’s preposterous claim that he is absolutely immune from prosecution because he was once President of the United States.

Trump’s legal strategy has always been predicated on delay, delay, and more delay. Smith, seeing the delay strategy at work again, is calling the question whether Trump can escape responsibility for his criminal conduct. Trump is asserting something akin to the divine right of kings. But there are no kings in this country. The fate of the nation hangs on the Supreme Court’s decision. The Humpty Dumpty defense must be rejected. If not, violence may result. In 1776 and again in 1787, we said, “no more kings.” It cannot be otherwise.

Closing Note:  It appears that the Judge in the DC case has stayed the proceedings until the Trump’s claim of absolute immunity for crimes committed while president is resolved by higher courts. While expedited briefing schedules have been established, it is entirely possible that the Supreme Court will deny the government’s petition for certiorari and dump the case back to the DC Circuit Court of Appeals. That court may be independently looking at Trump’s appeal anyway. Chaos reigns. More time will pass, and Trump will avoid the consequences of his preposterous legal position yet again. If so, we will move another giant step toward autocracy and the death of American democracy.

I will have more to say about this as soon as I can get through the multitude of decisions and pleadings being filed almost every day. The irony is that by committing so many crimes in so many jurisdictions, Trump has managed to create a scenario that will allow some courts to accede to his delay tactics. I will never understand why the judiciary has not taken central control of this situation rather than letting Trump’s cadre of lawyers making ludicrous arguments play the courts against each other. But that seems to be where we are.

No Way to Run a Government

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USAToday reports that Republican Senator Tuberville’s hold on over 400 military promotions (excluding four-star nominees) has ended. https://tinyurl.com/yeyvkxk5

The former football coach turned U.S. lawmaker in one of the world’s most important deliberative bodies has stymied the promotions for 10 months while trying to force the Pentagon to yield to his desire to stop the Pentagon from giving service members time off and pay for travel to have an abortion. The policy was put into effect after the Supreme Court overturned Roe v. Wade last year.

Thus, we have a government in which a single Senator, one of one hundred, can stymy the earned promotions of hundreds of military personnel vital to the nation’s defense because he, one Senator out of a hundred, objects to a Pentagon policy. Not coincidentally, note that the policy he wanted to thwart directly helps only women. And, of course,

The retired college football coach said he has no regrets blocking the nominations in protest of the Pentagon’s policy.

Of course he has no regrets. The Senator will now try to force the Pentagon to his will by having Republicans in the House, where they have a very slim majority, to force the Pentagon’s hand through the annual defense spending bill. After all, who needs defense when you are trying to impose your religious views on the entire government? Even Mitch McConnell apparently thought Tuberville was off base on this one, calling his action “dangerous.”

Among other preposterous and grossly irresponsible aspects of Tuberville’s blockade was that it led a group of senators to spend five hours in November on the Senate floor trying to secure individual votes on each promotion. Apparently, the great deliberative body had plenty of time on its hands, so no problem jumping through procedural hoops trying to overcome the obstinate resistance of one Senator.

This is no way to run a government. A single legislator, elected by 1,392,076 voters, representing 1.7 percent of the 80,821,083 total votes cast for Senators in 2020, is able to dictate policy to the entire government. I rest my case.

The January 6 Video Tapes

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Republicans are having hysterical conniption fits about the thousands of hours of January 6 security tapes recently released. They seem to have three main claims:

    1. The FBI infiltrated the mob that desecrated the Capitol [https://tinyurl.com/56ydb6hf], and
    2. The Capitol Police welcomed the mob and facilitated their entry into the Capitol, and
    3. The Capitol Police and others defending the Capitol were mean to the desecrators attacking them – they “beat them” bigly, according to, among others, Donald Trump

I have a few observations to offer those Republicans.

First, regarding the FBI, if it’s true that there were many FBI agents on the scene, wonderful. That means they expected trouble and when it came, they were on the scene doing their job. Now, to be sure, I don’t know whether the tapes actually establish that FBI agents were in the mob, or how the tapes could possibly do so, but the FBI certainly should have been there. The claim is there were at least 200, but all of this appears to be based on an unverified suspicion, without evidence, that FBI agents sent “ghost buses” full of agents dressed as Trump supporters, that the FBI “infiltrated” websites, social media accounts, and online chat groups “related to people who discussed “objections to COVID oppression.” Further, again without evidence,

when you track the text threads and the communications within those groups, and find the origins of suggestions of potential violence or an act of occupation of the Capitol on January 6, you’ll find that those messages were led by members of the groups and ended up to be the FBI agents that had infiltrated the group.

These are the ravings of Rep. Clay Higgins (R-La.) in a private “news” site under the name, American Military News, reporting on an interview Higgins gave to Newsmax, a cable news outlet so far right it fell off the flat earth. They ignore entirely the speech Trump gave on January 6 and his thoroughly documented refusal to call off the mob and stop the violence. Many of the convicted desecrators testified they believed they were simply answering the call and direction of their leader, Donald Trump, whose every word they believed.

Second, the Day of Rage video from the New York Times (https://tinyurl.com/242urbtu) and many others make clear that the attack started at the outer perimeter of the Capitol, that the mob attacked and overwhelmed the under-staffed and under-prepared Capitol Police before they approached, entered and desecrated the Capitol building.

Third, there are indications of Capitol Police, in most cases individuals facing massive numbers of violent intruders, failing to fight the mob inside the building. To the extent those officers failed to do their duty, they should be appropriately disciplined. But it’s likely that they decided resistance at that point was futile and that a more passive approach might be more effective than fighting a losing battle against an overwhelming and angry mob. This issue has, I believe, been addressed within the force, as it should be. It is no excuse for the behavior of the mob. The Republican claim amounts to, “the attack was the police’s fault because they didn’t fight back hard enough.”

Fourth, every member of the mob had the option at almost any time to turn around and walk away. The excuse of “I was swept up in the passion of the moment” is a child’s excuse. Any thinking adult could have seen the obvious: the mob was out of control, violence was occurring everywhere, police were being attacked (“support the Blue? Sure, but not today). Note also the conflict between “the Capitol Police welcomed the intruders” and “the Capitol Police violently beat the intruders.” I have commented before on the ability of Republicans to believe as simultaneously true two inconsistent concepts.

Fifth, the Republican hysteria fails to account for the role of the Proud Boys and other right-wing groups, many of whom were armed (Trump knew this and was furious that his instruction to remove the security apparatus to keep armed people away from his speech stage) and the massive evidence of what actually happened on January 6.

Sixth, and finally, the multitude of convictions resulting from trials and guilty pleas by mob participants so far (“More than 1,202 defendants have been charged in nearly all 50 states and the District of Columbia”), are conclusive evidence that many violent crimes were committed by the mob. You can see the latest data here: https://tinyurl.com/yry4jn2t

So, Republicans, you can continue whining about how the big bad police beat up on your band of fools or you could try, just once, facing reality. Trump incited an insurrection to overturn the 2020 election. Those who attacked the Capitol on his behalf deserve everything that is happening to them. And Trump belongs in prison. The End.

The Fork in the Road to Democracy or Dictatorship

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An article published in The Hill suggests that Donald Trump’s promises that if re-elected he will engage in violent retribution against his enemies have inspired members of Congress to breach protocol and almost come to blows. Trump’s violent talk shows signs of taking over Congress  https://tinyurl.com/djbp5rss Those threats are, of course, among many other Trump/GOP assaults on the centuries-old system of American democratic government.

The article was inspired by a first-term Republican Senator from Oklahoma challenging the president of the Teamsters union to a fistfight in a hearing. The article also reports that Mitt Romney had much to say about the situation, noting the self-evident fact that “the Republican Party has become the party of Trump.” Romney, the master of understatement when it comes to criticizing looney Republicans, said the fight challenge was “clearly unfortunate.” Bold stuff from the man who in 2016 had said that Trump was “worthless”, a “fraud”, and that “he’s playing the American public for suckers: he gets a free ride to the White House and all we get is a lousy hat.” https://tinyurl.com/5dsvuy5x

Romney, you will recall, promptly bent the knee to president-elect Trump to seek a Cabinet post – which was, of course, denied. Trump knows how to treat “disloyal” people.

The article notes that “Trump’s use of violent rhetoric has since become almost routine,” accurate except for the “almost” modifier. Trump now engages in violent talk every day, using language identical to that made famous by Adolf Hitler and other dictators of the past. GOP Trump loyalists aren’t concerned. Their plan to steal the 2020 election and stay in power didn’t work as they imagined but the playbook remains valid for their purposes. The 2024 election is just another chance for them.

When a politician tells you he wants to “take over” your country, you should believe him. Trump aspires to fascist domination of the entire federal and state government apparatus. Republican politicians are so busy trying to avoid Trump’s wrath that they continue to make “both sides” false equivalencies and to equivocate about what is really happening. One example is Republican Senator Mike Rounds:

 It’s not the route that I’d like to see any of us go,” … I understand the reason why there was anger.

both individuals should have had a different approach to resolving it.

you’re seeing folks on both sides of the political spectrum being less respectful of other people.

I don’t know if he changed [norms] or simply responded to what he saw from other people. I think he sensed that the American people were allowing this to go on, and he’s taken advantage of it, but it’s not the direction that I think our country should go.

Powerful stuff, those Republicans speak. I’m sure you didn’t miss the “both sides” he snuck in there. Brings to mind Trump’s comment about the Nazi march in Charlottesville: “very fine people, on both sides.” The Post article goes on to cite other incidents including one in which former Speaker Kevin McCarthy (R-Calif.) was accused of elbowing another Republican representative in the back.

The First Amendment and the associated long history of American acceptance of “free speech” allow for this kind of violent rhetoric in the absence of an imminent threat of violence by the speaker or someone in league with him. That is what happened on January 6. We now learn from Mediaite.com that Republicans are cheering the release of previously withheld security footage from January 6 because they have somehow reached the conclusion that it shows police collusion and thus sustains their belief that the entire episode was an “inside job” by the “left.” Trump Supporters Cheer Release of Jan. 6 Footage Showing Trump Supporters Storming the Capitol  https://tinyurl.com/bderutcr

Republicans have learned nothing. And some of the January 6 Capitol-desecrators have recanted their professions of error and remorse that were used performatively for compliant judges to secure lesser sentences. https://www.bbc.com/news/world-us-canada-66169914

Many questions leap to mind. One of the most prominent is whether American corporations are going to continue playing deaf and dumb while spraying advertising dollars and PAC contributions on rightwing Republican candidates. Historically, American corporations, armed with “personhood” by the Supreme Court Citizens United case, have tried to have it both ways. Those days must end now. If the corporate community is indifferent to the fate of American democracy, consumers must show them the consequences by withholding purchases.

Donald Trump and his supporters have made clear their intention to destroy the American administrative state that accounts for massive amounts of economy-stimulating expenditures while assuring that the worst short-term instincts of capitalism are at least to some degree regulated in the public interest. Trump has, for example, made clear he will wreck the civil service system to assure that only workers completely loyal to him have federal jobs.

The United States is not alone in the world. Among numerous others, Russia, under the complete control of dictator Vladimir Putin, is waiting for an opportunity to strike a fatal blow against this country. Trump has previously subordinated himself to Putin in open displays of obsequious submission. Once Trump is back in power, Putin will have a free hand. At the end of the day, Putin, whom Trump openly admires, is no different than Josef Stalin and Adolf Hitler.

I had occasion recently to be reminded of some of James Madison and Alexander Hamilton’s more salient observations about government in the Federalist Papers that helped secure ratification of the Constitution. Some of the more relevant ones include:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
― James Madison, Federalist Papers

It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.
― Alexander Hamilton, The Federalist Papers

On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

― Alexander Hamilton, The Federalist Papers

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
― Alexander Hamilton, The Federalist Papers

To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.
― Alexander Hamilton, The Federalist Papers

Gagging Trump

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This past Monday, I listened to two hours of the even longer oral arguments in United States v. Trump, regarding Judge Chutkan’s order limiting Trump’s attacks on Jack Smith, court staff and prospective witnesses in the criminal case against him. Several aspects of the argument stood out.

One was Trump’s lawyer’s desperate attempts to avoid conceding any limitation on what Trump can say, probably fearing that any concession of even the smallest point would swallow the entirety of his argument. His basic position was that Trump cannot be prevented from saying whatever he wants about anyone and everyone because of the First Amendment, and because he’s running for office, and because he’s Trump.

The court’s questioning, especially from Judge Millet, was detailed, incisive and brought back memories of law school classes in which the intellectual noose was tightened and then tightened some more as you tried to escape the traps laid by the professor. Trump’s lawyer kept trying to add facts to the hypothetical questions the judge asked, and she was not having it. It was somewhat embarrassing to witness and likely did not serve Trump well.

When counsel for the government addressed the court, however, the same questioning twisted itself into knots trying to determine whether there was any speech by Trump that could be prevented by the District Court order under review. The government was arguing that the First Amendment freedom of speech could be limited by the need to protect the integrity of the judicial process.

The judges struggled to find the limitations on that principle with questions like this: suppose Trump is in a debate during his campaign while the trial is underway, and his opponent raises testimony given in the trial. Can Trump say: that witness is a liar? A scoundrel?  A politically motivated anti-Trumper? Counsel for the government tried to argue, yes, that can be barred by court order to protect the integrity of the trial process but conceded that general statements about prejudice were acceptable. The court was not having it. Or so it seemed.

One thing you learn early in law school is that predicting how a court is going to rule by listening to questioning during oral argument is a fraught business. The media loves to predict outcomes but is often wrong — very wrong. Politico, to my surprise, published a reasonably balanced discussion of the oral arguments. https://tinyurl.com/2uy2v5e6

The key question comes down to how can “protection of the integrity of the judicial process” be accomplished without unconstitutionally restricting the speech of a defendant? It’s a difficult analysis.

In my view, the First Amendment privilege of the defendant must yield to the integrity of the judicial process. If the defendant is allowed to publicly attack witnesses and/or undermine the credibility of the prosecutors, the integrity of the process will be damaged, which is precisely why someone like Trump would and does almost daily engage in such attacks. Drawing the line between acceptable criticism, such as “the prosecution is politically motivated,” and impermissible attacks such as “the prosecutor is a thug, the witness is dishonest and prejudiced” is difficult.

But the court process has ways for these types of challenges to be brought before the court and decided, based on EVIDENCE, rather than permitting the defendant to undermine the entire process by intimidating lawyers and witnesses. Trump’s attorney made much of the challenges lawyers face in advising defendants regarding statements made about pending cases, some of which points seemed to resonate with the judges. One solution to that conundrum is to tell the client to stop talking about the case. If attacked, refer to any recorded testimony that arguably says otherwise. In short, stay factual and pass on the invective and threats.

But, of course, that’s not Trump’s style. Bullying and threatening are his standard repertoire. He’s not going to give it up unless the courts make it clear that the consequences for violating court orders designed to protect the judicial process will be met with severe consequences, including jail time. Meanwhile, since the gag order is on hold pending appellate court review, Trump will continue to be treated as a special class of one who is above the law that applies to everyone else.

Trump’s “Defenses”

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As she often does, Jennifer Rubin of the Washington Post has written a compelling piece  entitled, The trifecta that could sink Trump’s favorite defense https://tinyurl.com/3xrvzdam As often happens in criminal conspiracy cases, some of the defendants, in this case three former Trump attorneys and an Atlanta bail bondsman have proffered evidence against Trump in exchange for plea deals. Uncommonly, videos of some of their statements to prosecutors were leaked to the press by one of their attorneys. Time will tell what effect that decision has on the lawyer’s future.

But what is clear as the proverbial bell here is that three of Trump’s co-conspirators have chosen to save themselves at Trump’s expense. Anyone watching Trump for the past seven years can readily anticipate how he will react, but what is most interesting is the impact of their proffers on Trump’s defense that he truly, genuinely, authentically believed he won the 2020 election and that he lacked the necessary criminal intent to overturn the election through extra-legal or illegal means because he was acting on the advice of his attorneys.

The testimony of many participants in Trump’s scheme are aligning now in close harmony around a couple of key ideas: (1) Trump’s attorneys did not advise him that he won the election; indeed, many of them advised the opposite was true; Trump simply chose to act on the statements of those who told him what he wanted to hear but which he had every reason to know was false; (2) even if Trump somehow truly believed he won, for which point no credible evidence has thus far emerged, that belief is not a defense to the several unlawful actions he took to overturn the election result through extralegal means, such as offering phony electors and the January 6 assault on the certification process.

The legal system provides methods by which proper challenges could have been brought and, indeed, more than 60 were filed in courts across the country. None of them succeeded.

Trump’s most effective defense, the one on which he has principally relied for his entire life, is delay. In that he has a chance. The Fulton County Georgia DA has just requested an August 2024 start date which, if adopted, will virtually assure that the trial is ongoing at the time of the 2024 election. If the country were to lose its collective mind and elect Trump to the presidency, he would almost certainly try to pardon himself and would offer, for a price, pardons to everyone who might still be a threat to him. The notion that a president can pardon himself is preposterous on its face but with the current Supreme Court stacked with Trump appointees, there is no assurance he would not be “exonerated.”

The obvious and best solution, other than Trump’s earlier conviction and sentencing in one of the other felony cases, would be for him to be defeated at the ballot box. He would, of course, claim the election was rigged and start the challenge process all over again, perhaps including another attempt at a violent coup.

This pathetic situation has resulted, in part, due to the failure of the various charging parties to coordinate their activities and, in part, due to the pro-Trump preference demonstrated repeatedly by Judge Aileen Cannon in the Mar-a-Lago documents case. All the judges in all the cases are putting up with conduct that would never be accepted for any other defendant than Trump. If it is true that there is a two-tiered justice system, as many Republican Trump worshippers have claimed, it favors Trump rather than prejudicing him.

Time will tell, as usual. Meanwhile, the best offense against Trump remains producing an overwhelming election defeat in 2024. There may be no other way.

Some Questions About Trump’s Theft of Secret Government Documents

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As the prosecutors and courts muddle on with the Trump cases, I have been reflecting further about the most curious case of the secret documents Trump removed from the White House, stored in various insecure locations at Mar-a-Lago, lied about, refused to return, and, to this day, claims that he has an absolute right to have and to do with what he pleases, including, as he has already done, sharing them with persons not cleared to see them.

My main question is: why? Why would Trump set himself up for charges of violating national security in this way? Why, when the demand for return was made, did he not simply return the documents and claim it was all a big misunderstanding? Indeed, Why didn’t the Trump family rush to persuade him to return the documents? How about all the sycophantic spineless Republicans in Congress? Why didn’t they go to him and try to persuade him to return the documents?

I recognize the obvious: once Trump wants something to be true, he declares it’s true and that, for him, is the end of it. And the truth is that belief is a choice. No one inherently believes the Earth is an orb. They are taught in school that it is so and, in good schools, given the evidence from which its “orbness” has been deduced. The relatively small number of dunderheads who claim the Earth is flat have chosen not to believe the evidence.

Trump always chooses to “believe” that which benefits him. Thus, while president, he repeatedly said: “Article II allows me to do anything I want,” https://tinyurl.com/28ysddrt, all the while claiming he doesn’t talk about it while he’s talking about it. I can say with certainty that no attorney with credible understanding of the Constitution would accept that claim, but Trump chooses what he chooses.

Moreover, everything with Trump is transactional. I understand that he is stubborn and doesn’t like to be told what to do. One theory is that he kept the documents just to show that no one, not even the top law enforcement echelons of the U.S. government, can tell him what to do. Maybe, but that explanation seems thin when the criminal charges of the gravest nature are considered. Trump is not much of a gambler, and he would have to have a gambler’s mentality to persist with the document fight in the face of the felony charges brought against him.

While he likes to portray himself as a brilliant businessman, he bankrupted most of the businesses he has been involved in, including, remarkably, casinos. Starting with the millions he had at his disposal, as gifts from his father, almost anyone could’ve made a fortune in real estate in places. like New York City. Still, Trump sees everything in terms of personal benefit to him.

Those characteristics of his personality and behavior, perpetuated over his entire life cycle, thus lead to my speculation about why Trump stole the documents and refused to return them even to the point of being criminally charged. He planned to sell them to foreign governments that would be very interested in seeing top secret U.S. government intelligence reports and would likely pay top dollar for them. If Trump were, by some miracle, to escape a finding of guilt in the documents case, and regain possession of the documents, you can expect Trump to monetize the documents very quickly. It’s what he does.

DOJ Should Investigate Stefanik for Obstruction of Justice

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Reliable reports say that Elise Stefanik, member of Congress and GOP Conference Chair, has filed an ethics complaint with the New York State Commission on Judicial Conduct against Judge Arthur Engoron who is presiding over the civil fraud trial of Donald Trump. https://tinyurl.com/y4mka7xs and https://tinyurl.com/3nyb2p4p

Trump is accused of fraud and has already been found guilty. The question remaining in the case is the extent of the penalties that should be imposed on Trump and the Trump Organization.

You may wonder how it is that Trump has been found guilty already when the trial is still ongoing. I will explain.

Judge Engoron concluded based on the pleadings in the case that the legal standard for “summary judgment” had clearly been met. Summary judgment is a process by which courts routinely adjudicate claims when there is “no dispute of material facts” evident from the pleadings. Cornell Law School elaborates using Rule 56 of the Federal Rules of Civil Procedure, which is typical:

… in order to succeed in a motion for summary judgment, a movant must show 1) that there is no genuine dispute as to any material fact, and 2) that the movant is entitled to judgment as a matter of law. [https://www.law.cornell.edu/wex/summary_judgment]

“Judgment as a matter of law” means that, given the undisputed material facts, there is no legal basis for finding other than in favor of the movant. Even in a jury trial, motions for summary judgment may be brought and granted when there is no dispute of material fact in the evidence.

That brings up another point to understand. The Trump civil fraud trial is a “bench trial,” meaning there is no jury. The parties are relying on the judge to hear the evidence and issue the decisions. Why? Because Trump’s attorneys did not demand a jury trial and you don’t get a jury unless you ask for one.

Returning to Rep Stefanik’s complaint, she is not a party to the litigation and has no “standing” to be one. “Standing” is a very important principle used in all courts. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), for example, the U.S. Supreme Court established these principles to determine whether a party has “standing” to sue:

    1. The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent;
    2. There must be a causal connection between the injury and the conduct brought before the court;
    3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury. [https://www.law.cornell.edu/wex/standing]

The “standing” principle is the one that prevents people from filing legal complaints based on their political opinions where there is no specific injury to their interests. If it were otherwise, the legal system would be completely bogged down as everyone who was unhappy with anything could sue. Imagine you don’t like the way a local car dealer is promoting sales. Unless those promotions have directly impacted you in the purchase of a car from the dealer, you can’t sue in court to compel the dealer to change its advertising or pay you damages because you are offended by its commercial practices.

So, what is going on with Stefanik, a rapid conspiracist and Trump worshipper?

Simply this: Stefanik has attempted to derail Trump’s civil fraud trial, which he is losing badly, by challenging the judge’s conduct of the case in which she has zero actual interest other than her political desire to prevent Trump from being held accountable. In short, she has no standing to challenge the judge. What happens to Trump in his civil fraud trial is none of Elise Stefanik’s business. Her filing against the judge is an effort to obstruct justice. She is using her position as a member of Congress to try to influence the outcome of a civil fraud trial in which she has no economic or other interest other than her political desire to prevent Trump from being held accountable.

The extreme language used by Stefanik suggests that Donald Trump himself, or lawyers working for him, were intimately involved in drafting the document. It repeats most of the hysterical claims Trump and his lawyers in the fraud case have made, trying to provoke the judge into making a reversible error and for which Trump has been twice fined.

The GOP has long claimed to be the party of “law and order” but as regards Trump, it seems unwilling to let the legal system play out. If Judge Engoron has violated the judicial ethics code and made egregious trial management errors that have prejudiced Trump, the legal system provides appropriate remedies that all other Americans would have to pursue.

Stefanik and her Republican cronies aren’t willing to use the legal system properly because they’re afraid Trump will be found guilty of civil fraud and the multiple felonies with which he has been charged. So, they attack the judges, attack the clerks, attack the legal system in an effort to interfere with the system of justice established by state and federal law. They are terrified that Trump, at long last, will be exposed for the criminal that he is and held accountable under the law, like any other American would be in similar circumstances.

The Above the Law article cited in the opening paragraph of this post makes the point that Stefanik’s argument about the valuation of the Mar-a-Lago club is false:

In fact, the court simply noted that this was the value assigned by Palm Beach County tax assessors — a value which Trump himself militated for in an effort to decrease his tax liability. And that’s the entire point of this trial: Donald Trump committed persistent fraud by representing the value of his assets as astronomically high or preposterously low depending on whether he was seeking to evade taxes, score a conservation easement, or get a loan.

He also had a nasty habit of leaving out unpleasant details like rent control restrictions, options to purchase at below-market rates, and the fact that local governments had already put the kibosh on future development. Indeed, Trump told just such a lie on the witness stand Monday when he shrugged off a 2002 document in which he agreed that Mar-a-Lago could neither be converted to a private residence nor subdivided for development, writing that “the Club and Trump intend to forever extinguish their right to develop or use the Property for any purpose other than club use.”

On the witness stand, Trump made the idiotic claim that he still retained development rights because “‘Intend’ doesn’t mean we will do it.”

Another article about Stefanik’s maneuver notes that:

the complaint has all the hallmarks of Trump’s legal team pulling the strings by using the New York Republican as a cut-out to go after Judge Engoron. [https://tinyurl.com/4rv63d38]

Those indicators include multiple legal citations in correct form that Stefanik, a non-lawyer, would likely not have specified on her own.

Given the virtually identical stream of accusations made by Trump and his lawyers in court, the Stefanik complaint does appear to be a ruse perpetrated to derail the trial in which Stefanik has no legally cognizable interest.

For that reason, she is using her office to obstruct the justice process. DOJ should initiate an investigation into the backstory for her action and charge her with obstruction if the facts thus found are as they strongly appear to be.