Tag Archives: conspiracy

Nothing Has Changed – Don’t Be Misled by the Republican Political Theater

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Make no mistake Someone apparently tried to shoot Trump. I say ‘apparently’ because based on the evidence disclosed thus far, it is equally possible that the shooter intended only to frighten him or that the real target was the audience. While the shooter has much in common with the typical mass-murderer of school children (a youngish white male, a loner bullied in school), he was reportedly a registered Republican. His father also an avid Republican, Trump supporter and, of course, deep fan of guns – it was reportedly his gun that his son used.

In saying that, I do not subscribe to the conspiracy theories unsurprisingly circulating on social media that the entire event was staged in light of the imminent Republican National Convention, etc. One man, a father and firefighter, was killed in the incident and two other spectators were severely injured. An AR-15 bullet will do that, as we have learned to our deep sorrow from the many school shootings in which such weapons were used.

Not that Trump cared about anyone but himself. Reports indicate he has never reached out to the families of the man killed or of those wounded. President Biden did and was rebuffed by the widow who claimed her husband was so devoted to Trump that he would not have wanted her to accept the President’s condolences. That’s where we are.

Trump played golf, apparently not much unnerved by his alleged brush with death. Curious but given his past, not altogether surprising. To repeat, on the basis of known evidence so far, I do not subscribe to the claim that the entire affair was staged. The shooter was also killed. On the other hand, many mass shooters fully expect to die in the process.

I understand there are many unanswered questions. In time I expect there will be more clarity around why there has been no medical report on the nature and extent of the injury to Trump’s ear, and there are no authentic medical reports on the treatment he received. Why did Trump finally appear with a very large white bandage over the affected ear? There are reports indicating that he may not have been hit by a bullet at all but that his ear was damaged by a piece of the teleprompter that was shattered by a bullet. Strange but … not proof of the staging argument.

Also, there is no proof that this was in fact an “attempted assassination,” as the press has universally accepted without evidence of anything but an alleged nicked ear. There will be investigations and reports. Perhaps then there will be clarity about these and other questions begging for answers. Other than glorying in the additional attention he is receiving, and constantly craves, there is little if any real evidence that he came within an inch of being killed.

Meanwhile, everyone should calm down. A man is dead. The shooter is dead. Two people are hospitalized with undetailed but likely devastating wounds from the AR-15 bullets.

That said, the Republicans reacted true to form, blaming Democrats for “demonizing” Trump and thus inviting disaster. Naturally, those Republican sycophants ignored their consistent refusal to consider any meaningful restraints on ownership of automatic weapons. The NRA and their devotion to a strained interpretation of the Second Amendment were also ignored. Typical. One Republican claimed that President Biden had ordered the “hit” on Trump. Thoughts and prayers on that one. Republican Trump-worshippers remain among the worst, the most appalling Americans alive today.

Meanwhile, the Democrats were busy decrying violence in our political affairs and urging “unity.” Of course. Thoughts and prayers on that one too. The media also have been hysterical in their response to the incident, reporting as fact numerous matters about which they have no reliable evidence. It’s déjà vu all over again.

The reality is that Trump demonized himself. Here is a very brief sample of how he did that:

Trump’s immigration “policy” led to separating hundreds of children from their parents, in some cases apparently permanently, and locking them in cages. A perfect prescription for creating future terrorists who will never forget what was done to their families in the name of the United States of America. [See Who Will Punish Trump Administration Crimes Against Humanity?

Trump lied grotesquely and repeatedly about the COVID pandemic, promoting quack-sourced non-scientific remedies, repeatedly reassuring the country that the pandemic would end shortly with little impact. In fact, more than a million Americans died from COVID, and the damage continues. [See The Triumph of Hope Over Experience?]

Trump tried to use a foreign government to undermine his 2020 political opponent’s campaign, was impeached (twice) and acquitted only because his Republican sycophants in the Senate refused to hear the evidence and did not care what he did. Trump committed many other crimes in office. [See … A Man Unacquainted With Honor, Courage, And Character …. and Donald Trump — A Gangster in the White House]

When he left the White House, Trump took top secret documents with him and when this was discovered and the Archives demanded they be returned, he lied about them, refused to return them, hid them and engaged in other clear acts of obstruction of justice, adding to the ten that Robert Mueller’s investigation uncovered.

Trump has been found guilty by a criminal jury of fraud – 34 felonies. Not to mention the judicial determinations that he raped at least one woman.

There are dozens, likely hundreds of other examples, including many not revealed because Trump routinely destroyed documents that were supposed to be retained as official records of the Office of the President. But Trump never cared about that Office or his oath. His presidency was an occasion only to further enrich himself.

The mainstream media have apparently lost their minds entirely. The New York Times decided Joe Biden should drop out of the 2024 race solely due to his terrible debate performance, without mentioning anything about Trump. Meanwhile, the Supreme Court has conferred upon the President the absolute and unchallengeable power to commit crimes in office, even to the point of purloining the Department of Justice, among other agencies, to overthrow the presidential election of the very government the Court claimed it was protecting. In a bizarre twist of logic, the Court, claiming to prevent inter-presidential revenge-taking, gave the President the power to remain “king of America” for life and to appoint his successor. If the Biden administration doesn’t do something drastic about the Trump immunity decision, democracy in America will end with the next election if Trump wins. Imagine thereafter Trump’s son, Donald Junior, as President. It’s no joke.

The perfidy of the Supreme Court is not limited to the immunity question. Justice Thomas, bought and paid for by secret gifts from a billionaire Republican “friend,” wrote a concurring opinion on an issue not before the Court in the Trump immunity case. Thomas declared that the appointment of Special Prosecutor, Jack Smith, had been unconstitutional and therefore that the criminal cases against Trump at Smith’s behest could not stand. And, dutifully attendant to Trump’s needs as always, after endless delaying tactics but in practically no time after the filing of the then-inevitable motions to dismiss the stolen secret documents case, Trump’s judge-in-his-pocket, Aileen Cannon produced a 93-page opinion dismissing the document theft charges.

Now the New York Times apparently has awakened, at least partially, and produced in the last Sunday Times a special section entitled:  He Failed the Tests of Leadership and Betrayed America. Voters Must Reject Him in November: Donald Trump is Unfit to Lead.

So obviously true and yet, maybe too little too late. This was before the shooting. Trump has now selected one of the most despicable human beings in America to run with his as his Vice President: J.D. Vance. And while the Times on the same day recounts in detail the efforts of Republican functionaries around the country to suppress the votes of Democrats, it still plays the both-sides game in giving uncritical attention to the views of Trump’s most dedicated supporters in Congress and elsewhere.

The Supreme Court has unleashed the dogs of war by purporting to empower the President to violate the law with impunity. Joe Biden has many critical decisions to make if democracy is to be save from the very brink of destruction. The media also must choose now. There is no question left about the intention of the Republican Party to promote Donald Trump’s fascism until it has destroyed American democracy as it has existed since 1787.

I have read suggestions that Arabs and Muslims in Michigan, for one example, will not vote for Biden because of his support of Israel in the ongoing conflict with Hamas. I asked whether those single-issue voters have forgotten that Trump, immediately after taking office, imposed a ban on Muslims coming into the United States, labeling them all as potential terrorists. How many times must the lesson be learned that Donald Trump is no one’s friend, no one’s ally – he’s in politics for himself and his family alone. How many times?

The countdown clock is ticking to doomsday. Everything is on the line.

Sources: Who Will Punish Trump Administration Crimes Against Humanity? https://shiningseausa.com/2020/02/23/who-will-punish-trump-administration-crimes-against-humanity/

    The Triumph of Hope Over Experience?  https://shiningseausa.com/2022/02/26/triumph-hope-over-experience/

    … A Man Unacquainted With Honor, Courage, And Character …. https://shiningseausa.com/2024/02/06/man-unacquainted-with-honor-courage-and-character/

    Donald Trump — A Gangster in the White House https://shiningseausa.com/2022/04/11/donald-trump-a-gangster-in-the-white-house/

Many People Are Saying …

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.. 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.

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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.

Wondering in the Third Winter of Our Discontent

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We are in the third winter of COVID-19. No let-up in sight, although there are some predictions that the peak of Omicron is imminent. Those predictions say that, after the peak, a precipitous drop will occur. We may then, yet again, be out of the woods, they predict/suggest/speculate/hope.

I don’t know. No one does. But we do know some things, and the things we know raise some questions. Knowing things always leads to more questions because we never know everything. As soon as we know some things, we want to know the others. What comes next, for example. Despite not knowing everything, we have progressed as a species from the muck of the Stone Age to now. As a species, we’ve done many foolish things. But here we are, stumbling along.

Thus, I have some questions. I understand the anti-vaxxers are coming to Washington, my home, to “protest” against vaccination against COVID.

I gather they don’t want to be “forced” to vaccinate and don’t think it’s right that they be penalized in any way for their “choice.” Among other things, they claim this is a matter of fundamental personal freedom – the right to do with their bodies what they, and they alone, decide. They appear to believe there are bad things in the vaccines that will, variously, distort their thinking (really), prevent pregnancy, give them heart attacks, and do other unknown but harmful things to their bodies and minds.

Thus, I have some questions. Here in the third winter of our discontent.

  • Do you anti-vaxxers smoke, drink alcoholic beverages, eat processed meat? If you do one more more of those, do you know, really know, what’s in them?
  • When a doctor says, “go home and take two of at night before bed, do anti-vaxxers say, “no thanks, doc. I don’t know what that could do to me, so I’ll take my chances on a heart attack.”
  • Do anti-vaxxers who do take medicines, either prescription or over-the-counter, ever read the labels/prescribing information on those drugs? You know almost all of them say something to this effect: “if you take this drug, you may experience catastrophic side effects including possible death.” And you take them anyway, don’t you?
  • How many global conspirators do you anti-vaxxers believe are involved in the effort to poison/drug/kill/murder people and/or publish falsified information about the infections, deaths and damage done by COVID?  50,000 doctors, nurses, epidemiologists, EMTs? 100,000? A million? Must be at least a million globally, right?
  • Do you anti-vaxxers really believe that medical professionals are falsifying the data on infections, hospitalizations, deaths from COVID? It seems so. Why do they suppose all these professionals who have spent years/decades/entire lives working to help people have suddenly decided to attack the population with a deadly virus and/or falsify the information about the damage it’s doing?
  • If indeed there is a global conspiracy, where do you anti-vaxxers think all the people who have disappeared due to claimed deaths by COVID are being held? Have they actually been murdered and, if so, by whom? If so, how is it that with more than 870,000 Americans having died allegedly by COVID, no one has come forward with a single shred/scintilla of evidence that those people are (1) being held incommunicado in the dessert out west (that many people would require a lot of space, not to mention places to sleep, food, restroom facilities, etc etc to keep them alive) AND what happens when they are released, or is the government/medical profession going to keep them locked up forever? OR (2) buried somewhere, OR (3) cremated somewhere and their ashes disposed of secretly? Is that even possible?
  • Has there ever been a global conspiracy, or even one confined to the United States, in which hundreds of thousands (or millions) of conspirators were involved and not even one came forward to reveal the truth and receive the accolades (and no doubt, a lot of money) of a grateful world?
  • Finally, for now, do you have any concerns about the counter-factual? That’s the one where you’ve been wrong about the vaccine and in reality almost all the deaths are among the unvaccinated with a much smaller number of dead being vulnerable people who were infected by unvaccinated people or denied medical care because COVID-infected unvaccinated patients were occupying all the beds and attention of medical staff? Any concerns about that at all?

So, anti-vaxxers, I have these questions. And more, actually, but those will suffice for now.

So, while you’re in town, maybe you could do a few interviews and answer these questions. Then, well, then we can talk about the next round of questions.

If I don’t see you, well, RIP.

A Darkness in the Heart

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A few days ago, Rep. Carolyn Maloney, Chair of the House Committee on Oversight and Reform, releaseddocuments showing ex-President Trump’s efforts to pressure the Department of Justice (DOJ) to overturn the results of the 2020 presidential election.  https://bit.ly/35wq4uL Maloney’s release says, in part,

These documents show that President Trump tried to corrupt our nation’s chief law enforcement agency in a brazen attempt to overturn an election that he lost. Those who aided or witnessed President Trump’s unlawful actions must answer the committee’s questions about this attempted subversion of democracy.

This is not really new. Recall that on May 3, 2017, more than four long long years ago, I published, https://bit.ly/3vObOrS that included a 24-item list of indictable/impeachable offenses by Donald Trump. That was long before the March 2019 Mueller Report, laying out conclusive evidence of at least ten instances in which Trump obstructed justice. And longer still before the July 2019 phone call in which Trump threatened the President of Ukraine that he would withhold Congressionally-approved aid if Ukraine did not announce an investigation of Joe and Hunter Biden. See https://bit.ly/3vBQ7LF It was even longer before the January 6, 2021 Trump-inspired and Trump-led (“I will be there with you.”) attack on the Capitol, for which I recommended that Trump be indicted, arrested and charged with Sedition & Felony Murder. https://bit.ly/3q7iaSb

Thus, it comes as no surprise that unleashed Trump has once again committed multiple crimes. [An aside: this is not an exaggeration. I will soon be reviewing the extraordinary memoir, Where Law Ends, by Andrew Weissmann, the inside account of the Mueller investigation that reveals in horrifying detail the determination of Donald Trump to retain power and remain unaccountable to the people, including multiple crimes in office]

In a nutshell, as exposed in the released documents, here is how Trump attempted to subvert the Department of Justice in the wake of his 2020 election defeat [full details here; https://bit.ly/35wq4uL]:

Trump Sent Bogus Election Fraud Claims to Top DOJ Officials Minutes Before Announcing Their Promotions to the Top Two Spots in the Department

Trump Used Official White House Channels and a Private Attorney to Pressure DOJ to Urgently File a Supreme Court Lawsuit to Nullify the Election

      • The draft 54-page complaint demanded that the Supreme Court “declare that the Electoral College votes cast” in six states that President Trump lost “cannot be counted,” and  requested that the Court order a “special election” for president in those states.

Trump Enlisted Assistant AG Jeffrey Clark in an Attempt to Advance Election Fraud Claims; The White House Chief of Staff Pressured DOJ to Investigate Conspiracy Theories At Least Fives Times

 Examples [“Rosen” refers to then Deputy AG Jeffrey Rosen]:

      • On December 30, 2020, Mr. Meadows forwarded Mr. Rosen an email from Cleta Mitchell, a Trump advisor who later participated in a January phone call with Georgia Secretary of State Brad Raffensperger.  During that call,  President Trump reportedly asked Georgia election officials to “find” enough votes to declare him the winner of the state.  The December 30 email contained allegations of “video issues in Fulton County.”  Mr. Meadows wrote to Mr. Rosen:  “Can you have your team look into these allegations of wrongdoing.  Only the alleged fraudulent activity.”
      • Later on December 30, 2020, Mr. Meadows emailed Mr. Rosen a translation of a document from an individual in Italy claiming to have “direct knowledge” of a plot by which American electoral data was changed in Italian facilities “in coordination with senior US intelligence officials (CIA)” and loaded onto “military satellites.”  This individual claimed that the true data, as well as sources within the conservative wing of the Italian secret service, confirmed that Donald Trump was “clearly the winner” of the 2020 election.

Further nuances and details about these sorry episodes were reported in the Washington Post. https://wapo.st/3q4tP49 One element of that recital is the repetition of “no comment” and no response to inquiries from the press about the narrated events. Even those Justice Department officials who were steadfast in declining Trump’s overtures to overturn the election are apparently unwilling to address the revelations in the emails released by the Oversight Committee. And, quite expectedly, Mark Meadows and Trump himself had nothing further to say regarding their blatant attempts to overturn the election.

 What Should Happen Now

Trump and all of the people involved in attempts to suborn the Department of Justice should be indicted under 18 USC § 371,arrested and tried. It’s past time to put a stop to Trump’s campaign to undermine the central fabric of our democracy.

The US Criminal Code, 18 U.S.C. § 371, if violated when two or more persons conspire either to (a) commit any offense against the United States, or (b) defraud the United States, or any agency thereof in any manner or for any purpose. Both offenses require the traditional elements of conspiracy: an illegal agreement, criminal intent, and proof of an overt act.

In Hass v. Henkel, 216 U.S. 462 (1910) the Supreme Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

In Hammerschmidt v. United States, 265 U.S. 182 (1924), the Court elaborated:

To conspire to defraud the United States … also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

A multitude of later cases confirm the ongoing vitality of those early definitions.

Proof of conspiracy requires knowledge by the perpetrators that the statements were false. The claims made by Trump, Meadows and others acting on Trump’s behalf were not just obviously false but bordered on hallucinatory. Trump’s repeated claims that there was “no way” he lost Georgia, for example, have no plausible factual predicate and after sixty lawsuit failures, no plausible factual basis has been presented. Trump’s claims were a blatant attempt to both “interfere or obstruct legitimate Government activity” and/or to “make wrongful use of a governmental instrumentality.”

The Manual of Model Criminal Jury Instructions: 8. Offenses Under Title 18, referring to 18 USC § 371,  states,

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed….

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.…

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

A conspirator may not defend on the basis that he believed in fantasies when he made claims he knew were unjustified. In this case Trump and his henchmen tried to enlist the personnel and resources of the nation’s top law enforcement agency to accomplish what they failed to accomplish in the election, knowing to a moral certainty that their claims lacked a basis in reality. The conduct in question occurred almost two months after the election and after numerous lawsuits throughout the country failed to persuade a single judge (including some Trump himself appointed) that there was any basis for claims of election fraud that could change the result. Even Trump’s Attorney General Barr publicly rejected the fraud claims.

I am not alone in advocating strong and prompt action to stop Trump’s continuing effort to overturn the election . Jennifer Rubin suggested the following in the Washington Post on [https://wapo.st/3wz0sJM]:

    1.  criminal investigation into post-election actions in which officials were pressured to change election outcomes, including attempts at DOJ and at state officials such as Georgia Secretary of State Brad Raffensperger,
    2. create strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections, including whistleblower protections and mandatory duty to report such actions to Congress,
    3. sue to stop the bogus so-called “audits” in Arizona and elsewhere,
    4. develop federal legislation to strengthen the Electoral Count Act, such as requiring a supermajority to challenge electoral votes.

Rubin’s final recommendation is probably the most important: establish an election-monitoring program for 2022 and 2024 that will assign Justice personnel to prevent voter intimidation, measure wait times, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.  That’s the most critical because Republicans throughout the country are legislating changes in local election procedures to enable Republican-controlled legislatures and political appointees to control and even overturn election results.

Following Republicans’ uniform refusal to hold Trump accountable for any of his many crimes in office, it is now clear that the fate of the nation’s election system is under systemic attack. It is no exaggeration to say that Republicans are prepared, without compunction, to adopt totalitarian tactics to establish themselves as the permanent ruling party in American politics. They seem to believe that the majority of Americans will accept such actions in peaceful submission. That, I believe, is a fundamental misjudgment, the consequences of which are unimaginably horrible. Among many other things, the United States is no longer separated from its enemies by oceans that take weeks or months to cross. A violent civil conflict would expose the country to attacks from which it could never recover.

In any case, there is no reason to sit idly by while the Republicans attempt in plain view to subvert the Constitution and establish a Republican dictatorship under Donald Trump. Aggressive and immediate actions can prevent the unthinkable and avert more drastic measures later. Trump and his co-conspirators should be indicted forthwith. Time and opportunity are wasting.

Indict & Arrest Trump — Charge with Sedition & Felony Murder

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Not surprisingly, Republican senators have already decided they have no interest in addressing the January 6 Trump-inspired attack on the U.S. Capitol in an effort to steal the election from Joe Biden. Most of them have voted that it is unconstitutional to entertain impeachment since Trump has left office. The English translation of this is that “impeachment ceases to be available unless it can be brought and tried before the president leaves office so anything he does, no matter how serious, in the closing weeks of his presidency, is immune.” More on that in a moment.

The Supreme Court appears to have added its imprimatur, without explanation or noted dissent, to the extraordinary proposition that violations of the emoluments clauses are also unavailable after a presidency ends even if suits were initiated during the presidency.

If all that is correct and it is also not lawful to indict the president for crimes during the presidency, as the Department of Justice has twice opined (wrongly, in my view), we have effectively overturned the balance of power created by the constitutional framers when they created the three branches of the federal government with separate counterbalancing powers. The imperial presidency, as declared by Trump (“I have an Article II, where I have to the right to do whatever I want as president”) has arrived.

If so, the country is in the most dangerous place since the period just before the Civil War. This raises the question of what the United States government should do if Trump’s supporters, emboldened by what they believe was a victory at the Capitol, return to attack the government again. I address this specifically at the end.

But first, as I write, the Republican leadership of the House and Senate are meeting with Trump in Mar-a-Lago. No one will ever know what they are discussing, but, given recent events and the continued obeisance of Republican legislators to Trump’s dominance, it is not outlandish to suggest that they are considering further steps to overthrow the government. Trump representatives, enablers and acolytes meanwhile are aggressively promoting false narratives that the violence on January 6 was led by “antifa” and other infiltrators and, despite overwhelming video and other evidence, Trump and his people are faultless.

Let’s begin with a short lesson in the applicable law.

“Sedition,” or more fully, “seditious conspiracy,” means,

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to ,,, oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years or both. [18 USC 2384] [bolding mine]

As with most legal matters of import, this is more complicated than it first appears. As noted in https://criminal.findlaw.com/criminal-charges/sedition.html,

Simply advocating for the use of force … in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution “by any means necessary” have not necessarily conspired to overthrow the government. Rather, they’re just sharing their opinions, however unsavory. But actively planning such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy. Ultimately, the goal is to prevent threats against the United States while protecting individuals’ First Amendment rights, which isn’t always such a clear distinction.

Of course, there are lawyers who will argue that nothing that happened at the January 6 Trump rally was outside the protection of the First Amendment. There are others who strongly disagree, me included. See https://bit.ly/39vCK80

The critical point here, in my view, is this: Donald Trump was not just another angry man voicing his grievances to a like-minded audience. If he were just that, the First Amendment would likely protect him. But, no,  Trump was President of the United States and still subject to the oath of office he took in 2017 to “faithfully execute the office of President of the United States, and … preserve, protect and defend the Constitution of the United States.”

Trump therefore had an affirmative duty to act to prevent and defend against any action that would interfere with the execution of Congress’s official constitutionally-mandated duty to validate and count the Electoral College votes. He also had an affirmative duty to protect federal property. He did not so act, and for that reason alone should lose any protection that might arguably arise from the First Amendment for his speech that preceded, for the most part, the January 6 attack. I say “preceded for the most part” because there is evidence that some of the assaulting force was already at the Capitol when Trump began speaking at noon.

Continuing with our over-brief summary of the law, “conspiracy” is also complicated but not terribly so:

A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. A person may be convicted of conspiracy even if the actual crime was never committed ….

… an agreement may be implied from the circumstances…. [such as attending a meeting to plan the crime]

… individuals in the conspiracy must intend to agree, and all must intend to achieve the outcome.

… at least one co-conspirator [but only one] must take some concrete step in furtherance of the plan.

Finally, “felony murder” is chargeable when in the commission of a felony (which breaching the Capitol & attacking Capitol Police were) someone is killed, all of the felons are guilty of felony murder even if they had no specific role in the killing. Illustration: you and your buddy rob a bank. He goes in, you merely wait for him and drive the get-a-way car, he shoots and kills a bank teller. You are guilty of felony-murder.

Now to the known facts.

As reported at https://bit.ly/3rdBtJ,1 and elsewhere, the night before the January 6 attack on the U.S. Capitol, a private meeting assembled in Trump’s private residence at the Trump International Hotel in Washington. Reporting indicates that the following people attended the meeting:

Donald Trump Jr., eldest son of the president

Eric Trump, second-eldest son of the president

Michael Flynn, former National Security Advisor to the president

Peter Navarro, Assistant to the President, among other things

Corey Lewandowski, 2016 Trump campaign manager

David Bossie, 2016 Trump deputy campaign manager

Adam Piper, executive director of the Republican Attorneys General Association

Tommy Tuberville, United States senator from the State of Alabama

Rudy Giuliani, personal attorney to the President of the United States

Kimberly Guilfoyle, girlfriend of Donald Trump Jr

Michael Lindell, Trump donor and MyPillow CEO

Charles W. Herbster, National Chairman of the Agriculture and Rural Advisory Committee for the Trump administration

The meeting was confirmed in an attendee’s Facebook post late on January 5 that ends with “TRUMP WILL RETAIN THE PRESIDENCY!!!”

Senator Tuberville claims he was not at the Trump Hotel on January 5, but an Instagram photo of him at the hotel with two other people indicates otherwise. We can only wonder why the Senator would mislead about his presence.

To be clear, there is no report thus far that Donald Trump attended the meeting in person or by phone. Trump’s whereabouts that night would almost certainly have been noted by the White House media if he had been driven to his hotel. It beggars the imagination, however, to believe that this cast of characters was working independently of the president, given all the circumstances and what occurred the next day.

The primary report notes:

Not only does this meeting appear to confirm that Trump’s team helped orchestrate the events of January 6, but that it participated in the calibration of those events to exert maximum “pressure” on members of Congress in the midst of them executing a grave constitutional duty. Moreover, it participated in that calibration in the presence of a member of the United States Senate, who was therefore—we can now conclude, from the reporting of the Omaha World Herald—working in private with the president’s team to advise Trump on how to generate that maximum pressure on his Senate peers….

While we cannot know if these co-conspirators discussed the possibility of violence on January 6, that they contemplated the crime that most of the January 6 insurrectionists have now been charged with—Unlawfully Entering a Restricted Building—is all but certain, as is the fact that the purpose of such entries was to put improper pressure on government officials to reverse course on a government action.

In simpler terms, the purpose of the January 5 meeting at the Trump International Hotel in D.C. was arguably seditious conspiracy—as it appears to have been intended to promote and incite criminal acts by a mob whose purpose was to intimidate federal officials engaged in the certification of a democratically elected branch of government.

Much of the article cited above is speculation, but what seems clear is that many of Trump’s closest confidantes, including his attorney Giuliani, attended a meeting away from the White House for the apparent purpose of discussing how to pressure Congress in a last-ditch attempt to stop the election certification and award it to Trump. One attendee reportedly claims they were just there to watch the election returns come in from the Georgia senate runoffs. Believe what you wish about this.

The New York Times reported that the day before the rally,

“If you are not prepared to use force to defend civilization, then be prepared to accept barbarism,” a member of the Red-State Secession group on Facebook posted …

Beneath it, dozens of people posted comments that included photographs of the weaponry — including assault rifles — that they said they planned to bring to the rally. There were also comments referring to “occupying” the Capitol and forcing Congress to overturn the November election that Joseph R. Biden Jr. had won — and Mr. Trump had lost. [https://nyti.ms/3r4ZAJy]

Still earlier in January,

the extreme fringes of Trump supporters — including the Proud Boys and other groups known to incite violence, as well as conspiracy groups like QAnon — were exploring what they might do on Jan. 6 in Washington. On dedicated chats in Gab they discussed logistics of where to gather and what streets they would take to the Capitol. The Red-State Secession Facebook page even encouraged its 8,000 followers to share the addresses of “enemies,” including those for federal judges, members of Congress and well-known progressives.

At the rally on January 6, Donald Jr, preceding his father, flatly stated that the Republican Party was now “Donald Trump’s Republican Party,” the kind of claim that a banana-republic dictator would make, the meaning of which is “if Trump tells you to do something, you will do it.” The speech was replete with grievances against the Democratic leadership but also against “establishment Republicans” who were portrayed as weak and essentially traitors to the cause of “America First” and Trump’s own set of grievances.

The further events of January 6 are well-known. Video shows Trump urging the crowd to walk to the Capitol where he contended Congress was about to confirm the election he said was stolen. Among other remarks, Trump said:

“We will never give up,” he said. “We will never concede. It will never happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore.”

He went so far as to say he would be with the crowd at the Capitol, but that was a lie. In any case, the crowd walked the mile-plus to the Capitol, confronted the grossly under-prepared Capitol Police, stormed the building through smashed windows and doors, screaming in rage that they could not find the members of Congress who had been moved to safe-rooms. The building was vandalized, a police officer was killed, and many were injured in a multi-hour battle against the vastly larger force of invaders. Others also died as a direct or indirect result of the attack. The Pentagon leadership working under Trump failed to send timely help.

Those events have inspired House Democrats to impeach Trump a second time. It’s the only “remedy” over which they have any real influence. Republicans, of course, overwhelmingly leapt to Trump’s defense, voting that the impeachment of a president after he leaves office is somehow unconstitutional. https://wapo.st/2YkPW9x Having refused to even hear evidence and witnesses at Trump’s first impeachment, the Republican Party completed its obeisance to Trump by essentially declaring that whatever he may have done, no sanction is justified. As a result, Democrats now are also considering a censure, a fallback proposed by Sen. Kaine of Virginia, because an impeachment trial will delay consideration of critical elements of President Biden’s plan to combat the COVID crisis.

A censure, even if adopted over Republican opposition that is certain to occur, will be nothing more than a slap on the wrist for a man who believes he is immune from the law. Republicans have every incentive to drag out the trial because, in addition to supporting Trump’s every act, they want to  impede Biden’s efforts to boost the economy and restore the health of the country.

I don’t doubt Senator Kaine’s sincerity in arguing that a censure resolution is “a potentially more politically palatable alternative to convicting Trump and barring him from future office” while also arguing that “his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment.” Kaine argues further that “It’s more than just a censure, saying, ‘Hey, you did wrong’ ….It makes a factual finding under the precise language of the 14th Amendment that would likely put an obstacle in Donald Trump’s path if he were to run for office again.”

Kaine’s further argument is that “Just as the question of impeachment after you’ve left office is not ironclad one way or the other, this one is not ironclad, It leaves the door open for folks to make arguments down the road,”

That is, I think, plainly wrong because its premise is wrong.

The argument accepts that there is a legitimate constitutional objection to impeaching a president after he leaves office. The “immune after exit” position leaves open the possibility that in the closing days of a presidency, the president could engage in blatantly unlawful criminal activities and escape being called to account by impeachment. He could still be indicted and tried, but as a matter of principle, the position of no impeachment after office seems inconsistent with the framework established  by the Constitution — just stall long enough and escape an otherwise justified political accountability.

Impeachment, in any case, whether during or after the presidency, is insufficient to address the magnitude of the January 6 insurrection. While Republicans like John Cornyn of Texas are all so happy to “just move on” and “not live in the past,” claiming that impeachment now is “retroactively” punishing ex-officeholders,” even moderate Sen. Manchin of West Virginia understands the gravity of this situation which has no precedent in modern times. And, by the way, to Sen. Cornyn and others who subscribe to his view: all punishments, whether political like impeachment or criminal, are about past behavior. The notion that impeachment now is somehow wrong because it refers to past conduct is beyond moronic. And you can quote me on that.

So, where do we go from here? Political stalemate seems certain in Congress’ attempts to call Trump to account. The evidence of seditious conspiracy is, however, overwhelming. Do we let Trump skate? Do we ignore a blatant attempt to overturn the election and, in effect, declare Trump dictator? I think not.

Republican leadership in the House and Senate is now running away as fast as possible from early statements indicating grave concerns about Trump’s role in the insurrection at the Capitol. https://wapo.st/3a4Qd5G Both of them have rushed to Mar-a-Lago to meet privately with Trump. Why do you suppose they’re coordinating with him now? Why is House Minority Leader McCarthy now trying to place blame for January 6 on “all Americans” and other similar nonsense rhetoric? Why is McCarthy handing out choice committee assignments to QAnon conspiracy advocates like Rep. Marjorie Taylor Greene (R-Ga.), who has previously endorsed violence against Democratic leaders and who has claimed that the Parkland/Sandy Hook school massacres were staged along with the 9/11 attack and the January 6 assault as well? As noted in the article cited above,

For party leadership and top election strategists, video of protesters pummeling Capitol Police officers or chanting for the death of Vice President Mike Pence has proved less germane to current considerations than the potential to quickly return to power. They have been calling for more party comity, even with those holding extremist views.

Operating from Florida, Trump’s advisers have been encouraging party leaders to move on from impeachment and refrain from further criticism of the former president, even as they plot retribution against Republicans who opposed Trump’s final effort to overturn the election. Trump campaign advisers have commissioned and circulated to GOP lawmakers polling that shows him as still formidable in their states and made clear that he would seek revenge for votes against him.

The political reality is that the Senate is evenly divided between the parties, House Democrats have a small majority, and, despite Trump’s overwhelming defeat, Republicans gained governorships and control more than 60 percent of state legislatures. At least two Democratic senators are uncertain allies to aggressive positioning by their party.

WAPO reports that polling shows a staggering 79 percent of Republicans still approve of Trump’s conduct of the presidency and 57 percent saying the Republican Party should follow his leadership even after the attack on the Capitol. Some GOP party groups are embracing the fantasy claim that the January 6 attack was actually staged by Trump’s enemies. Some Republican Party strategists refer to the attack as “extremely unfortunate” and Republican National Committee Chairwoman Ronna McDaniel claimed that it was Democrats who were trying to “sow division and obstruct” while “Republicans will keep fighting for the American people.” If this were a TV show, it would be the Twilight Zone, but it’s the reality of where America now sits. The Republican Party really does belong to Trump and no longer adheres to fundamental democratic principles.

If you think I’m overstating it, WAPO reports that there is “speculation that the president’s daughter-in-law, Lara Trump, might run for the open North Carolina seat or that the president’s daughter Ivanka Trump might mount a primary challenge to Sen. Marco Rubio (R-Fla.).” A few Republican voices in the wilderness remain – Mitt Romney flat out said Trump “incited the insurrection” on January 6, — but their influence against the Trump Red Tide is limited at best.

While the Republicans continue to focus only on their political prospects going forward and how to align themselves with Trump’s base, evidence continues to mount that the January 6 attack was not just a spontaneous response to Trump’s words. The Washington Post, for example, reports that so-called militias in three states beginning planning to challenge the election by force in November. https://wapo.st/39pblEB US prosecutors have asserted,

Three self-styled militia members charged in the Jan. 6 breach of the U.S. Capitol began soliciting recruits for potential violence within days of the 2020 presidential election, later training in Ohio and North Carolina and organizing travel to Washington with a busload of comrades and a truck of weapons….

The report is quite detailed with communications among the parties charged as conspirators. Many other reports show that multiple January 6 participants are being charged with federal crimes of varying severity, depending on what the preliminary evidence shows they actually did at the scene of the invasion. It is reasonable to expect many more arrests as prosecutors work through the videos, recordings and social media posts of participants. The New York Times published an article with multiple videos revealing parts of the fight between police and the insurrectionists screaming “I will f*cking kill you!” https://nyti.ms/3ahHP2P That is what the Republican Party is defending.

The Acting Chief of Capitol Police is so concerned about the continuing threat to the Capitol that she is recommending permanent emplacement of unscalable fencing, possibly topped with barbed wire, around the perimeter. Mayor Bowser, thankfully, is opposed but consider what this means for the state of the nation’s politics.

So, where do we go from here?

After long reflection, my view is that nothing short of the indictment and arrest of Donald Trump can adequately begin to redress the harm done to the country. We are on the precipice of the collapse of the rule of law. Washington, DC remains an armed camp protected by thousands of National Guard due to reports of further armed attacks on the government. Failing to bring real and serious criminal charges against Trump will be seen by his acolytes as further proof that he was the victim of multiple hoaxes and a fraudulent election, despite the overwhelming evidence to the contrary. Postponing the day of reckoning while Trump reorganizes his political forces is a recipe for catastrophe from which the country may not recover. The time to deal with this is now, when the evidence is fresh and the focus is clear.

There can be no rational doubt that Trump summoned the mob to come to DC for the pre-insurrection rally, that his words called for the mob to go to the Capitol for the purpose of stopping the Electoral College vote count, that there was almost certainly planning activity in advance, not only by mob participants but by members of Trump’s inner circle of family and other advisors. People died during the attack, an outcome entirely foreseeable. The case for seditious conspiracy and felony murder is compelling.

Political accountability through impeachment will accomplish nothing of substance. Criminal liability, on the other hand, while facing a higher standard of proof, will  bring the evidence before a carefully selected jury of Americans. If they decide that Trump is not guilty, so be it. There will, at least, be no basis for complaint that political vendettas were being accomplished. The far greater likelihood is that a properly presented case against Trump will lead to his conviction.

If it were up to me, I would include in the indictment charges related to Trump’s obstruction of justice in the Mueller investigation, including perjury, and likely also the incident in which Trump attempted to leverage Ukraine’s president to interfere in the U.S. election. It is time, in other words, to call the question on Trump’s claim that he is above the law. If this fails, our democracy may well be doomed, as conspiracy theorists like MJ Greene, Lauren Boebert and other Republican fantasists remain in power in subservience to Donald Trump who, elected or not, will become de facto dictator as long as he lives.

No doubt, the bringing of criminal charges will further enrage Trump’s already deranged supporters. If they decide to attack the Capitol, no amount of fencing and barbed wire will stop them. The government must be prepared to make the most aggressive response, including overwhelming deadly force against those who seek to bring down the government by violent assault. This conflict cannot be resolved by negotiation, and it is virtually certain Trump will continue to assert his false grievances to a willing audience of true believers. If so, the nation has no choice, in fact has a solemn duty, to defend itself and its democracy with every means at its disposal.

 

 

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – A

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A. Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof

The investigation focused on conspiracy law because “collusion” is not in a term used in the governing criminal law. That fact may explain why Trump constantly refers to collusion in defending his conduct. While it’s technically true that the Report did not find “collusion” between the Trump Campaign and the Russian Government, the Report did not make a lot of other findings because they were equally as irrelevant as “collusion.”  For example, the Report did not find that Donald Trump is a generous person who readily contributes substantial amounts of his claimed fortune to charitable causes. Such a finding would have been (a)  untrue and (b) utterly irrelevant to the matters under investigation.

On the relevant issue of conspiracy, the Report focused on “coordination” as a factual question — limited to whether an “agreement — tacit or express — between the Trump Campaign and the Russian government” existed during the Campaign or the transition. Why Mueller thought this limitation was essential to the investigation and to any charging decisions is never explained.

It was entirely possible for the Trump Campaign to “coordinate” without an “agreement” to do so. Given Mueller’s expressed conclusion that the Campaign expected to benefit from information stolen by the Russians and the clearly established fact that high-ranking members of the Trump Campaign and family actively sought “dirt” possessed by Russia on the Clinton candidacy, “coordination” within the meaning of the conspiracy laws should not turn on the existence of an “agreement,” tacit or otherwise.

Framing the problem as Mueller did sets a bar so high that a successful investigation was likely impossible. As bad as Russia’s demonstrated electoral interference was, it was entirely feasible that “coordination” by the Trump Campaign with the Russian activities could have been accomplished without anything resembling an “agreement” between the Campaign and the Russian government. Mueller owes an explanation of why the existence of an agreement was essential to a finding of conspiracy. Would mere knowledge of what the other side was doing suffice to establish such an “agreement?” Mueller apparently thought not, but the underlying reasoning for such a counter-intuitive judgment is missing. Conspiracies are typically very hard to prove, but there was no apparent or compelling reason to get the bar so high.

Although Russians masked their operation while conducting political rallies and in doing so “made contact with…Trump campaign officials,” Mueller says the investigation uncovered no evidence of “coordination.” I-MR 4 This cries out for elaboration. Which rallies and which campaign officials? When? Are we to believe that the Trump campaign worked with unknown parties to stage political rallies and never bothered to find out with whom they were working?

A related curiosity is the question of timing the decision to end the investigation. The Report notes (I-MR 14) that the Russians masked their identity in communications with the Trump Campaign but some of those contacts are still under investigation. Per Appendix D at I-MR D-1 thru D-6, there may be as many as 14 additional investigations pending but no details or clues are provided regarding their targets or subject matter. The massive redactions from I-MR 14 to I-MR 37 suggest that the primary subject matter may be Russian interference in the election unrelated specifically to possible coordination with the Trump Campaign, but, if so, this should be clarified.

The Report says Russians released hacked materials about Clinton through Wikileaks (I-MR 4), thus implicitly indicating that Julian Assange conspired with the Russians. Mueller concedes the SCO was unable to resolve the connection between the release of the Trump “grab ‘em” tape and the same-day release of WikiLeaks documents harmful to Clinton. I-MR 36. But what was Assange’s relationship to the Trump Campaign? This is not elaborated in the Report.

 Trump personally welcomed help from WikiLeaks and the Russians. He later claimed he was speaking sarcastically, but when, in relation to investigation steps, did he make the sarcasm claim?  This is a common Trump tactic – make a dog whistle statement followed by “I was just joking” when blowback ensues.

In June 2016 a Redacted Party predicted to the Trump Campaign that WikiLeaks would release info damaging to Clinton. I-MR 5. There is more here that needs explanation to sustain the conclusion that there was no evidence of coordination.

The Report portrays the involvement of Russia and Trump Campaign’s response as having same goals – each would benefit from the other’s success – but Mueller nonetheless concludes that throughout the entire campaign, the parties somehow operated independently, though in parallel, to each other’s activities without any coordination. I-MR 5. He also concluded that Trump Campaign people did not understand they were dealing with Russians, I-MR 35, an idea that conflicts directly with the documentary prelude to the infamous Trump Tower meeting at which high Campaign officials attended in explicit expectation of receiving stolen negative information about Hillary Clinton.

During 2016, George Papadopoulos, while working for the Campaign, tried to arrange meetings to follow up information from Joseph Mifsud (identified by Mueller as a Russian agent) that Russia had dirt on Clinton. While no meetings may have resulted, why weren’t Papadopoulos’s activities at a minimum “attempts to coordinate” Is it plausible that he acted entirely on his own without communicating with other Campaign officials? What specific efforts were made to track down this crucial information? Why isn’t this covered in detail in the Report?

Indeed, why was the Trump Tower meeting not, by itself, a clear attempt to coordinate with Russia?  The information offering may have been a ruse but Campaign leaders didn’t know that and attended in expressed hopes of getting dirt on Clinton. They walked out only when the hoped-for dirt was not proffered. It’s pretty clear from the email history that if the dirt had been produced, it would have been accepted and not reported to the FBI.

Similarly, Carter Page was ousted from Campaign only after media attention drawn to his Russian connections. I-MR 6 If there had been no media attention, is there evidence the Campaign would have removed Page? Nothing in the Report suggests this would have occurred. Was there not more evidence of Page’s connections to Russia and, therefore, likely attempts to coordinate with it in support of Trump’s campaign?

Paul Manafort, then Trump Campaign Chairman, was also meeting with Konstantin Kilimnik, who had Russian intelligence contacts.  They discussed campaign strategy, including swaying Democratic voters in Midwest. Manafort shared polling data. I-MR 7 WHY is this not coordination even by Mueller’s limited definition? At the time Manafort was the trusted head of the Campaign. Why would his conduct not have been attributed to the Campaign? Why was this not addressed in the Report?

Next: Involvement of WikiLeaks –Gaping Holes & Unresolved Issues