Tag Archives: coup

Trump’s Documents – Trump’s Crimes

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

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

There Was No Election Fraud in 2020

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

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

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

Eastman’s Plan to Overturn the Election

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

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

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

But,

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

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

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

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

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

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

 Refusal to Produce Documents to January 6 Select Committee

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

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

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

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

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

Trump Committed Crimes

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

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

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

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

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

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

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

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

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

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

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

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

The illegality of the plan was obvious.

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

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

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

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

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

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

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

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

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

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

Finally,

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

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

Good, Bad, Ugly and … Bad

My last post at, or as close as my reflexes allowed, the stroke of midnight, when last year became this year, was a record of brevity. Nevertheless, last year had some moments and I am sharing them now. Some are good, some are bad, some are ugly, and some are just plain bad. The narrative will help sort them out, but you will, as always, be the judge.

Looking ahead, and backward as well (2021 will not go away that easily), we have much to look forward to, even as many of us crave the justice that so far has failed to materialize regarding, among many other things, the attempt by Donald Trump to overturn the results of the 2020 election. Trump’s attempt was supported by, and likely planned by, many Republicans in Congress who remain in their positions, enjoying the extraordinary privileges and comforts accorded to nationally elected representatives of the people. The same is true of members of Trump’s Cabinet who, from some compelling indications, were complicit and indeed actively engaged in the coup attempt.

Those of us who retain our rational faculties even after the Trump presidency and a year of non-stop Republican-led terror and fantasizing are not going to be satisfied with letting bygones be. As the clock ticks down toward the 2022 mid-term elections, and many experts predict a traditional outcome in which the “out” party resumes control of Congress, the omens for the future of our democratic republic appear dark indeed. But it doesn’t have to be that way. We outnumber them – our future is in our own hands, not theirs, unless our indifference lets them have the victory they do not deserve.

With that in mind, and given the dual personality of this post, here are some of the planned topics you can look forward to in 2022:

Fahrenheit 2021 – the crypt has opened and the book-burners walk among us

Life Under Republican Rule – do you want leaders who believe in magic?

States – What Good Are They? – how states promote tribalism

Anti-Vaxxers Must Take No Medications – if they read the labels ….

Books, Truth and Elections – truth is not infinitely malleable

Voice Bots – how to remove the human element from humanity

The Fear Equation – what is everyone so afraid of?

Communicating with the Voter – ya think?

Cliches of the Day – substituting slogans for thought

… and others in a seemingly infinite list. Meanwhile, back at the launchpad, here are some things to ponder and, hopefully, enjoy in a perverse 2022 kind of way.

Cloudy skies as seen from the roof:

In the Yikes Department, these cars were, according to reports, parked on leaves that had been deposited in the curb and a hot catalytic converter did its thing. I don’t know whether that’s really what happened, but Yikes.

On Christmas Day, we visited the National Mall to get some fresh air and see what was going on. Generally, it was a normal-looking day, as these photos show. Many visited the military memorials.

Some walked along the Reflecting Pool.

One person visited with himself. We’re pretty sure he enjoyed the experience.

A few days later we drove into the Virginia countryside to introduce my stepdaughter to the wonders of Hill High Orchard and pie place extraordinaire, about which I have previously written. The plan was to eat lunch outside at a restaurant in Bluemont, VA. When we arrived, however, we saw these “signs” hanging from a building on the property:

We returned to the car and went elsewhere. We will NEVER eat at a place owned by people who believe Trump won the election. Not now, NOT EVER.

Which brings us to Meme Time. Someone wise once said that a picture was worth a thousand words. I think that’s mostly true. These memes/photos were copied from tweets and Facebook posts. Where they originated, I have no idea but kudos to the people who created them. They speak volumes about the challenges we face. There is no doubt the country has made many mistakes. In that sense it is “normal.” But we also aspire to higher ideals, and it is those that we say “define America.” So, with a smile on our faces, let us confront our ghosts and move ahead as a people dedicated to the principles stated in the Declaration of Independence:

We hold these truths to be self-evident ….

 

 

The Cat is Out of the Bag

When it was revealed that General and Chairman of the Joint Chiefs of Staff, Mark Milley, had intervened in anticipation that Trump might use the military to keep himself in office, strong backlash was heard from some in the military, present and former. They appeared to believe that it was wrong for Milley to move independently of the president who was his commander-in-chief, regardless of his fears that Trump might act to subvert the election with military force or start a nuclear conflict and declare martial law.

That position was, I thought at the time, unbelievably short-sighted and mindless. Accepting that chain-of-command is important, I thought, and still believe, that General Milley is an American hero for seeing a fundamental danger to the country and acting to prevent it.

Now come three other generals (retired) arguing that “The military must prepare now for a 2024 insurrection.” https://wapo.st/3e8J6vH “We are chilled to our bones at the thought of a coup succeeding next time.”

I am too, and so should you be. We are facing the most serious threat to our democracy since the Civil War.

The case made by the generals is compelling:

  • Many of the insurrectionist mob on January 6 were veterans or, even more remarkable, active-duty military;
  • The commander of the Oklahoma National Guard refused to compel COVID vaccination of his Guard members because the Governor of the state said he should not follow the President’s directive;
  • “The potential for a total breakdown of the chain of command along partisan lines … is significant should another insurrection occur. The idea of rogue units organizing among themselves to support the “rightful” commander in chief cannot be dismissed;”
  • The real possibility exists that state Guard units will follow their political preferences if their candidate loses the next election;
  • Access to state arms repositories might be loosened to aid insurrectionists prepared to do battle;
  • Often ignored, the distraction of a violent domestic conflict over the election with a divided military would make the U.S. vulnerable to attack by international enemies;
  • We have passed the stage of mere strong political disagreement and must urgently prepare for worst-case scenarios, by, among other things, holding the leaders of January 6 to full accountability for their actions;

The generals who have spoken out about the danger have made several compelling proposals for preventive measures:

  • An immediate civics review for all uniformed and civilian military regarding the Constitution they have sworn to uphold and on the subject of election integrity, the laws of war and how to deal with illegal orders;
  • Re-inform members about the “unity of command,” so there is no question about who is in command;
  • “identify, isolate and remove potential mutineers” and “propagandists who use misinformation to subvert the chain of command.”
  • war-game the next potential post-election coup attempt to identify weak spots, debrief the findings and act to prevent breakdowns in the military and in connected civilian agencies.

A major step in support of this pro-democracy agenda involves the military and Department of Justice acting aggressively and urgently to hold accountable those who participated in and/or led and/or conspired to induce the attack on the Capitol. Regardless of what led people to involve themselves in what was a blatantly and unquestionably unlawful assault on the government, minds are not going to be changed any time soon.

The remedy for now is to make clear that the penalties for such conduct will be administered severely and promptly. Military who participated should be expelled from the service. They have no excuse for violating their oaths of loyalty to the Constitution. Similarly, the January 6 House Select Committee must adopt a sense of urgency and work continuously until its mission is completed.

Simultaneously, the Department of Justice must, with equal urgency, complete its investigations and indict the leaders in Congress and the former White House (and associated advisors) and elsewhere who participated in, conspired to incite or aided-and-abetted the January 6 assault. It should not take a week or more to hold in contempt individuals who refuse to comply with subpoenas or who falsely claim the Fifth Amendment while simultaneously proclaiming their innocence and make false accusations about the process.

Among the other obvious dangers here is that these investigations will drag on, the TrumpPublican Party will regain full control of the Congress (not dependent on the cooperation of people like putative Democrat Sen. Joe Manchin) and activity to investigate and hold accountable will be halted. If that happens, you can kiss our democratic republic goodbye, perhaps for good. The authoritarian goals of the TrumpPublicans are to entrench their power permanently. Democracy is at stake. Time is running out. Politics as usual is not good enough. If we do not act in the face of the threat, we will deserve what we get.

The Fourth Reich — It’s Them or Us

Disclosure: Much of this post depends on information from the Bob Woodward- Robert Costa book, Peril. Woodward and I were friends in college and have had sporadic contact since then. I still consider him a friend, though we do not communicate regularly. Back in the day, a national magazine (not to be named) briefly suspected I might be Deep Throat. As everyone now knows, I was not Deep Throat. I never was.

This post is also inspired both by the column in the Washington Post by Margaret Sullivan [https://wapo.st/3v4LeMv] that asks the question why the “news” has largely ignored or downplayed the revelation that John Eastman, a Trump lawyer (and thus, legally, Trump himself), produced an outline for the steps to overturn the 2020 election and replace the real winner, Joe Biden, with Donald Trump.

The third inspiration is a line in Steven Pinker’s new book, Rationality:

Many facts, of course, are hurtful: the racial history of the United States, global warming, a cancer diagnosis, Donald Trump. Yet they are facts for all that, and we must know them, the better to deal with them.

So we must.

Since I began thinking deeply about this, we have also learned that Trump’s Department of Justice deliberately sat on its hands and did not brief Congress or others in the administration about what it apparently understood could be a day of violence against the government. https://bit.ly/3npJLON

We have also become aware that,

Republican leaders loyal to Trump are vying to control election administrations in key states in ways that could drastically distort the outcome of the presidential race in 2024. With the former president hinting strongly that he may stand again, his followers are busily manoeuvring themselves into critical positions of control across the US – from which they could launch a far more sophisticated attempt at an electoral coup than Trump’s effort to hang on to power in 2020.

… in recent months Trump has emerged as an unashamed champion of the insurrectionists, calling them “great people” and a “loving crowd”, and lamenting that they are now being “persecuted so unfairly”.

A poll released this week by the Public Religion Research Institute found that two-thirds of Republicans still believe the myth that Trump won. More chilling still, almost a third of Republicans agree with the contention that American patriots may have to resort to violence “in order to save our country”. [https://bit.ly/3ckbwlq]

As Donald Trump Jr has asserted, the Republican Party is now the Party of Trump. He owns it. His army of sycophants are as loyal to him as ever. Despite all the evidence to the contrary, his people believe the 2020 election was stolen, just as Trump continues to claim.

This is so despite Trump’s admitted bungling of the response to COVID that added significantly to the death toll, his incessant grifting and lying and treasonous acts of disloyalty to the United States, and, of course, his many “ordinary” crimes, such as giving secrets to Russia, extorting the president of Ukraine and a multitude of documented obstructions of justice, among many others. Evidence of cultish blindness to Trumpism is everywhere – mainstream media, Fox Propaganda, Twitter, Facebook, even LinkedIn and more.

Even with all that, the Eastman memo, unearthed in Woodward and Costa’s book, is shocking. As explained by Sullivan,

Written by Trump legal adviser John Eastman — a serious Establishment Type with Federalist Society cred and a law school deanship under his belt — it offered Mike Pence, then in his final days as vice president, a detailed plan to declare the 2020 election invalid and give the presidency to Trump.

In other words, how to run a coup to overturn the election in six easy steps.

Yet, Sullivan reports, the mainstream media largely ignored it at first. She rightly asks why this was not the multi-alarm firestorm – a presidential advisor casually informing him of the steps needed to undermine the outcome of a national election and claim the presidency that he had clearly lost.

The answer, it turns out, is as disturbing as the memo itself.

As reported by Sullivan, network executives thought the story unworthy because it was “crazy” and unsurprising. In effect, Trump has so normalized the idea of overthrowing the election that evidence of actual work to do so is not important enough to report. Another didn’t address it because “There’s no indication that Pence considered it seriously.” Others responded that there was much other news that seemed more important. What would be more important than an attempt to overthrow the government?

The normalization of the Trump-Republican attempt to subvert the Constitution and reinstall Trump as president, and de facto dictator, is being enabled by publications as venerable as the Wall Street Journal. The Journal published a letter from Trump on October 27. It did so without comment or any attempt to address the truth or falsity of his claims. The grotesque problems with the letter and the Journal’s decision to publish it are addressed in detail by Philip Bump in the Washington Post. https://wapo.st/3GTiYCg

The obvious and logical, and profoundly disturbing, conclusion is that WSJ supports Trump’s claims of election fraud and his belief that he was denied re-election by widespread vote fraud. Thus, the Wall Street Journal joins the campaign to undermine American democracy and replace it with a Republican autocracy led by Trump and his family.

At the same time, Trump is desperately fighting to prevent the release to the House committee investigating the January 6 insurrection/coup attempt of a large trove of documents that would reveal his role, and that of his key enablers, in the attack on the Capitol. https://nyti.ms/3wgXYAc His claims of executive privilege have been rejected by President Biden, but Trump maintains he can assert the privilege even though no longer in office. Trump’s claim of privilege fails on multiple grounds, not least of which is that most of the documents sought have nothing to do with this execution of the job of president – they are related to his personal political objective to remain in office despite the electoral outcome.

Thus, Trump continues to maintain his thoroughly debunked claims of election fraud while resisting efforts to uncover facts that might expose his role in trying to overthrow the federal government.

What else does the Woodward/Costa book contribute to our understanding of all this? A lot.

  • The chair of the Joint Chiefs, Mark Milley, after plenty of chances to observe Trump’s thinking and behavior as president, agreed with Speaker Pelosi’s observation that Trump was “crazy” and had been “crazy for a long time.” Peril at xxii. Colin Powell, former Chair of the Joint Chiefs described Trump as a “f*cking maniac.” Peril at 106.
  • Pelosi characterized the Oval Office under Trump as an “insane snake pit.”Peril at xxiii.
  • Referring to the white supremacists who marched in Charlottesville, and under pressure from then-Speaker Paul Ryan, Trump refused to criticize the marchers because “These people love me. These are my people. I can’t backstab the people who support me.” Peril at 8.
  • Trump was often unaware of his own actions. He did not know that the money for the border wall in the early 2018 spending bill was an amount he had approved. He finally agreed to sign the bill to prevent a government shutdown. Marc Short, Trump’s legislative advisor told Ryan this chaos was typical of “every day around here.” Peril at 9. Bill Barr, who was committed to run the Justice Department in Trump’s best interest to promote his re-election thought Trump’s big problem was his “pigheadedness and his blindness.” Peril at 71.
  • Trump failed to grasp the nature of the threat posed by COVID-19 and refused to accept information that conflicted with his view. Peril at 82.
  • Trump rejected advice of Gen. Milley and other senior advisors to rename military bases from Confederate traitors to Medal of Honor winners. Peril at 108-109.
  • Even as the U.S. pandemic continued to escalate (approaching 4.9 million cases and more than 160,000 deaths), Trump insisted that it was “disappearing. It’s going to disappear.” Peril at 113.
  • Trump tweeted that the “deep state” was interfering with the development of vaccines. When his own appointed head of the FDA tried to explain the process, Trump changed the subject. “the president had no idea how the FDA operated and had made no effort to find out.” Peril at 113-115.
  • Aware of his failing election campaign, Trump primed his followers for the possibility of defeat by repeatedly claiming that the only way he could lose was a rigged election. Peril at 131.
  • As soon as Trump’s defeat was reported, he announced from the White House that the election was a “fraud on the American public.” Peril at 133.
  • Even Michael Pompeo, one of Trump’s most loyal sycophants, told Gen. Milley that “The crazies are taking over,” referring to Giuliani, Sidney Powell, Michael Flynn and Mike Lindell, the key players on Trump’s legal defense team. Peril at 150.
  • On November 10, following Trump’s firing of the Secretary of Defense, Gina Haspel, the CIA Director, presciently predicted, “We are on the way to a right-wing coup.” Peril at 152.
  • Mark Meadows made repeated efforts to install a Trump super-loyalist into a leadership position at the FBI and, stymied by Barr, later at the CIA, stymied by Haspel. Peril at 154-156.
  • Trump acknowledged that Giuliani was “crazy” but claimed that “sane lawyers” would not represent him in attacking the election. Peril at 164. Trump’s AG Barr referred to Trump’s legal team as a “bunch of clowns.” Peril at 170. See also Peril at 180.
  • Trump’s team of incompetents had no plan to efficiently distribute COVID vaccines. Peril at 187.
  • Steve Bannon advised Trump to focus on January 6, the day the Electoral College votes would be certified by Congress, the last step to elect Joe Biden as President:

We’re going to bury Biden on January 6 …. If Republicans could cast enough of a shadow on Biden’s victory on January 6 … it would be hard for Biden to govern. Millions of Americans would consider him illegitimate. They would ignore him. They would dismiss him and wait for Trump to run again. “We are going to kill it in the crib. Kill the Biden presidency in the crib… [Peril at 207-208]

  • Trump directly threatened VP Pence if he refused to reject the Biden Electoral votes and hand the election to Trump. Peril at 229-230.

The above references are just a small taste of the astonishing revelations in Peril. Most of the rational people in the White House at the time of the election and its aftermath appeared to believe that Trump was mentally unstable, incapable of and uninterested in the complexities of governing and focused only on retaining power. There was palpable fear, even among some Republican leaders, that Trump was so unhinged and desperate that he might start a war or try to use the military to retain power. His distraction likely played a role in the continued spread of COVID and  his administration’s failure to respond appropriately.

These concerns, which continue in the wake of the January 6 insurrection that Trump inspired and encouraged, raise the gravest questions about the capacity of the American democratic republic, and the Constitution on which it is based, to survive the presidency of an incompetent psychopath like Trump.

Thus far, the only action against the insurrectionists has been to arrest just over 700 of the perpetrators out of what appeared to be several thousand involved in the assault. No charges have been leveled against anyone in Congress or the Trump administration in relation to the attempted coup. Trump continues to claim in every available forum, without any factual basis and in the face of more than 60 defeats in legal proceedings, that the election was stolen. His supporters in Congress continue to obstruct President Biden’s efforts to end the pandemic and restore the economic health of the country.

Republicans around the country continue to alter election rules, gerrymander districts and prepare to overturn the results of any election defeats they may experience in 2022 and 2024. The Doomsday Clock on American democracy is ticking down and, as far as can be told, more than a year after Joe Biden’s election, no meaningful actions to hold the real leaders of the January 6 coup attempt accountable has been made.

Watch this video, produced by Don Winslow Films, listing 19 critical questions central to the January 6 insurrection, that remain unaddressed as far as anyone can tell.  https://www.youtube.com/watch?v=z2cG1PIhLIA

We are told we must be patient, that building a solid criminal case against a former president requires time. To a lesser extent the same “principle” is offered regarding the members of Congress who actively promoted the insurrection and have worked very hard to sustain a ludicrous phantasmagorical version of what occurred on January 6.

I understand the need for careful preparation, but in a little over a month we will have reached the one-year anniversary of the attack on Congress. I ask what evidence of conspiracy, perjury, sedition and obstruction of justice, to mention just a few of Trump and team’s major crimes, is missing? Has a grand jury been impaneled?

As Don Winslow’s video compellingly asks, why have so many key witnesses not been subpoenaed by the House Select Committee and placed under oath? What kind of investigation is this? Are we going to get another version of the Mueller Report that says we can’t find enough evidence to indict but neither do we exonerate? How could such a conclusion be reached without a full investigation? Mueller failed to fully investigate, as revealed in Andrew Weissmann’s book, discussed at length in an earlier post in this blog, “Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …” https://bit.ly/32GUDA1

Trump is infamous for using legal processes to stall and delay investigations and actions against his multi-various criminal activities and civil offenses. If the government takes much longer, there will be no chance for meaningful action while Republicans scheme to undermine the democratic process whose survival is central to a full accounting from Trump and his enablers. I am encouraged, not much but more than zero, by the fact that the Biden administration has not announced that it is closing any investigations but that is not sufficient.

Winter for American democracy is theatening and once it is here, there may be no chance for a renewal.

 

 

 

A Tale of Two Worlds

I love the New York Times. I hate the New York Times. It has the best stories.  It has the worst stories….

What?

Maybe that reminds you of the remarkable opening of Charles Dickens’ A Tale of Two Cities that didn’t occur to me until I had penned the opening lines of this post:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.

Dickens, writing in 1859, two years before the start of the American Civil War, was on to something fundamental. He could have been writing today.

I pretend no such comparison, of course. It’s just that as I read the New York Times Sunday Review “Guest Essay” by Christopher Caldwell, entitled, What if There Wasn’t a Coup Plot, General Milley? [https://nyti.ms/3fsvPPC], I experienced the cognitive dissonance that I wrote about in a prior post: Media Bias—Who Are the Victims? [https://bit.ly/2Vf7PIH] Caldwell is the author of a book, published in January 2020, that Amazon describes as explaining how the social justice “reforms of the past fifty years gave the country two incompatible political systems—and drove it toward conflict.” I haven’t read the book, but the description suggests, not surprisingly, that the liberal movement toward equality, educational opportunity and the rest are the root cause of Donald Trump’s appeals to racism and xenophobia. That’s an argument for another day, perhaps.

Here we are in August 2021, more than six months past the January 6 mob attack on the Capitol that killed police officers among many other outrages and Mr. Caldwell suggests that the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, was hallucinating when he viewed Trump’s post-election assault on the Constitution as “some kind of coup.”  Caldwell is offended by Milley’s suggestion, reported in a new book, that a coup would fail because the military would step up to prevent it.

While some might greet such comments with relief, General Milley’s musings should give us pause. Americans have not usually looked to the military for help in regulating their civilian politics. And there is something grandiose about General Milley’s conception of his place in government. He told aides that a “retired military buddy” had called him on election night to say, “You represent the stability of this republic.” If there was not a coup underway, then General Milley’s comments may be cause more for worry than for relief.

Caldwell claims that Milley’s only evidence of a coup was the January 6 attack, and this is where the idea of Two Worlds comes in. Caldwell says, “that day’s events are ambiguous.”

Seriously? Ambiguous? This is better, I suppose, than the argument I encountered on LinkedIn recently in which a large number of Trumpers stated, I kid you not, that the January 6 attack did not happen and that the videos are “all lies.”

To be more than fair, Caldwell accepts the reality that,

On the one hand, it is hard to think of a more serious assault on democracy than a violent entry into a nation’s capitol to reverse the election of its chief executive. Five people died. Chanting protesters urged the hanging of Vice President Mike Pence, who had refused Mr. Trump’s call that he reject certain electoral votes cast for Joe Biden.

But then Caldwell dismisses the entire event as “something familiar: a political protest that got out of control.” Caldwell says that what he describes as merely “contesting the fairness of an election” and calling the election a “steal,” while “irresponsible” coming out of the mouth of a president, are mere hyperbole equal to “calling suboptimal employment and health laws a “war on women.”

Nor did the eventual violence necessarily discredit the demonstrators’ cause, any more than the July 2016 killing of five police officers at a rally in Dallas against police violence, for instance, invalidated the concerns of those marchers.

There are so many problems with this exercise in deflection and what-about-ism, it’s hard to know where to begin. Suffice to say, Mr. Caldwell has chosen to ignore the planning that we now are beginning to understand went into the January 6 attack. The “protest that just got out of hand” is a convenient intellectual ruse to plaster over the realities revealed by, for example, the New York Times’ video, “Day of Rage”. See https://nyti.ms/2VLfDSI

Caldwell is quite comfortable observing that Trump “ended his presidency as unfamiliar with its powers as with its responsibilities. That is, in a way, reassuring.” In effect, Caldwell seems to argue that Trump was too ignorant and incompetent to bring off a real coup. So, no need to worry.

Then, after noting that the few rational people in Trump’s administration left or were ousted, his claims of a stolen election inspired his followers. And, Caldwell hastens to declare,

Republicans had — and still have — legitimate grievances about how the last election was run. Pandemic conditions produced an electoral system more favorable to Democrats. Without the Covid-era advantage of expanded mail-in voting, Democrats might well have lost more elections at every level, including the presidential.

If you’re going to claim legitimacy for arguments of electoral unfairness arising from a public health crisis, then you must also address how that public health crisis unfolded. And there, my friends, is where we find Mr. Caldwell’s hero stuck in the sucking muck of his incompetence and indifference. Trump’s legendary and thoroughly documented mishandling of the pandemic is likely at the heart of his defeat, and he cannot have it both ways. If the pandemic was another “Democrat hoax,” it cannot be blamed for his defeat.

Mr. Caldwell continues his monologue lost in the illogic of his argument that what began as a perfectly rational, if not necessarily correct, dispute about election procedures spun out of control in the hands of an “infuriated and highly unrepresentative hard core.” That “hard core” was precisely the group of politicians and supporters that Trump turned to in his desperation. His one true skill, inspiring hatred and irrational behavior, rose to the occasion just when he needed it most. Trump urged the mob to go to the Capitol, told them he would be there with them – and they believed him. Many of them have argued in court that they could not have committed crimes because they were “invited” into the building by Trump himself.

Undeterred by reality, Caldwell says.

The result was not a coup. It was, instead, mayhem on behalf of what had started as a legitimate political position. Such mixtures of the defensible and indefensible occur in democracies more often than we care to admit. The question is whom we trust to untangle such ambiguities when they arise.

Caldwell assumes away the central issue by simply declaring the situation was ambiguous and that the debate about the election just got out of hand when the mob listened to Trump claiming that the nation would be destroyed if the election were allowed to stand.

Under the rules of logical reasoning, defects in the premise remain in the outcome of a logical progression from that premise. By January 6 there was no even superficial plausibility to the argument that the election was flawed by fraud and “stolen,” notwithstanding the absurd claims of Republican politicians that the mob was just a bunch of friendly tourists. It is therefore impossible to logically argue that a rational dispute about the validity of the election simply got out of hand and led to the vicious beating of police trying to protect Members of Congress carrying out explicit Constitutional responsibilities.

In the end, Caldwell’s argument is that January   6 was not a coup attempt because he says so. And, therefore, he concludes that military leaders should not have “any kind of role in judging civilian ones.”

Most thoughtful people who respect the Constitutional scheme, despite its flaws, would agree that in normal circumstances the military should stay out of politics. Trump’s aspiration to turn the US into a “banana republic” notwithstanding, we remain a democratic republic and our military is subordinate to civilian authority. However, the Trump crowd should not get the wrong idea about that. Recall that it was Trump who called out military forces against civilian demonstrators in Washington. Gen. Milley had every reason to be concerned that Trump’s disrespect for, and fundamental ignorance about, the Constitution and his oath of office might lead to an attempt to use the military to overturn the election. I, for one, am happy to hear the General say “hell, no, not now, not ever.”

Quo Vadis, Republican Party?

You may recognize the Latin phrase, or not. It derives from “Domine, quo vadis? meaning Lord, where are you going?” and was assertedly spoken by Saint Peter who, fleeing persecution in Jerusalem, came upon the resurrected Jesus and made the inquiry, leading Jesus to tell Peter that he was returning to be crucified again. [source: e­­ncyclopedia.com https://bit.ly/38OcLIG] [Also a 1951 movie title]

I was reminded of this by a, typically, erudite and lengthy essay by Yale historian Timothy Snyder in today’s New York Times Magazine, entitled The American Abyss: Trump, the mob and what comes next. Snyder also wrote On Tyranny: Twenty Lessons from the Twentieth Century, a book that should be required reading for every American interested in the survival of our democracy.

A major premise of Snyder’s Times essay is that the Republican Party’s political establishment has two main branches. One, the gamers,

is concerned above all with gaming the system to maintain power, taking full advantage of constitutional obscurities, gerrymandering and dark money to win elections with a minority of motivated voters. They have no interest in the collapse of the peculiar form of representation that allows their minority party disproportionate control of government.

The main exponent of this group’s point of view is the former Senate Majority Leader, Mitch McConnell, of the failed state of Kentucky.

The other, even more craven group (my view, not necessarily Snyder’s) are the “breakers,” who “might actually break the system and have power without democracy.” That group is now led by Senators Josh Hawley and Ted Cruz.

Snyder then begins the analysis, noting that to some Republicans the hopeless quest to overturn the election was just political theater, but

for Congress to traduce its basic functions had a price. An elected institution that opposes elections is inviting its own overthrow. Members of Congress who sustained the president’s lie, despite the available and unambiguous evidence, betrayed their constitutional mission. Making his fictions the basis of congressional action gave them flesh. Now Trump could demand that senators and congressmen bow to his will. He could place personal responsibility upon Mike Pence ….

If that doesn’t lead you to immediately buy a Times subscription and also Snyder’s book, I don’t know about you….{I get no royalties; just trying to be helpful]

As noted, Snyder’s treatment is erudite and complex. My own view is more simplistic.

The principal distinguishing feature of our mish-mash American democratic republic with its squirrelly Constitution and three “co-equal” branches of government intended to mutually restrain each other, is that the people elect their leaders. If the leaders fail to perform as the voters think they expected, the voters can elect new leaders on the immutable schedule of elections. AND — this is critical — assuming a fair process, the loser accepts the loss and waits for the next election in the immutable schedule for another try. ALWAYS. The loser accepts the loss, moves on, reorganizes and so on.

If the acceptance of loss, a/k/a the peaceful transfer of power, were to be lost, the entire system, Constitution notwithstanding, would collapse and American democracy would be finished.

As noted, the essential premise of this scheme is “fair process,” and everyone knows that politics can be “rough and tumble,” “dirty,” and other unpleasantries, often in direct proportion to how much power is at stake. But “rough and tumble” or not, the process by which voting occurs must be accepted as fair, meaning each voter has a fair and equal opportunity to vote and to have her vote honestly counted.

Obviously, that goal is aspirational. We have, for example, gerrymandering which alters the “equal opportunity” element by rearranging the electorate to favor one party over another. Since both parties, in a floating tit-for-tat combat try to tilt the system in their favor when they can, the electoral system begins to resemble an exercise in mutually-assured-destruction, a/k/a MAD. And that doesn’t even account for the way in which the Electoral College system enhances the votes of smaller states or the way in which the allocation of legislative seats dilutes the votes of high-population states.

But those are features of the imperfect system that have been present for a very long time. At bottom, there remains, at least until now, the fundamental core principle that the loser will accept the loss and move on.

But, what if the process is not fair, in that the voting or the vote-counting is rigged in some way that favors one side? Why would the loser be expected to just accept defeat, an ill-gotten gain by an adversary with no recompense? Isn’t that exactly what Trump and his supporters have claimed?

No, it is not. The entire system by which the “truth” is determined in our society is based on arrangements provided in the Constitution. Thus, the taking of an oath to support the Constitution is an oath to accept those arrangements. The determination of “truth,” as close as we frail humans can come to its ascertainment, is made by a system of challenge-response-decision by independent courts which in turn have elaborate appeal arrangements so that erroneous decisions may be corrected before doing lasting harm. Like all human systems, the legal system is not perfect, but it is the closest we have come and is far better than a system in which appointed autocrats make all the decisions. And our systems have published “rules of engagement” that all parties must follow, so that the fight in a legal environment is as fair as it can be, assuming both sides have access to adequate representation.

Thus, our system includes the legal system as a fail-safe against faulty electoral process, as regards problems like obstruction of access to the polls, corrupt vote counting and the like.

Turning then to the 2020 presidential election, we first should recognize that the president began complaining of election rigging even before issue was joined with a chosen Democratic opponent. Moreover, through direct manipulation of the U.S. Postal Service, he tried to rig the election in his own favor, all the while complaining about what the opposition was up to. Aided by Republican governors, access to the ballot box was restricted by closing polling stations and other techniques of voter suppression.

Whatever one may say about social media and their manipulation by Trump and other politicians, those media also enabled the Democrats to call out the voter suppression as it was happening. So, it came to pass that the president, in sharply declining popularity as he downplayed the deadly coronavirus and was caught trying to pressure foreign governments to help undermine his opponent, lost the popular vote by more than 7 million votes, lost the key battleground states and lost the Electoral College vote. Joe Biden was declared the winner.

Trump fought back, screeching that the election had been stolen due to massive voter fraud, but only in the key battleground states he lost and, inexplicably, only regarding the presidential election but not the down-ballot races for supremely important seats such as that held by Majority Leader McConnell of Kentucky, who survived a challenge despite having done little or nothing for his constituents. Trump sent a team of lawyers into the field, filing lawsuit after lawsuit, more than 60 cases, many to be decided by judges he had appointed. Not knowing and not caring how the legal system worked, Trump apparently expected his appointees to simply award him victories. He, and his crack legal team, could not, however, overcome the lack of evidence, defined as credible information of specific facts supporting a legal claim. Such evidence simply did not exist. Trump’s case was actually damaged by trotting out “witnesses” who did not understand how vote counting worked in their precincts. Trump lost ALL but one insignificant decision, more than 60 defeats. Even his “house lawyer,” William Barr, putative Attorney General of the United States, concluded that Trump had lost the election fairly.

And still Trump cried “foul,” arguing that he had won the election by a landslide, that the fix was in.  His mendacity was exposed yet again by a tape of his attempt to induce the Georgia Secretary of State to “find” a collection of votes just one more than Trump needed to reverse Biden’s win in Georgia. Never mind that for his claims to be true, tens of thousands of people would have had to conspire to tilt the vote count, a vast conspiracy that both theory and practice informs us could not happen without someone spilling the beans. There were no beans to spill.

And still Trump cried “foul.” And still his Republican enablers in Congress remained silent or engaged in full-throated support not only of Trump’s right to test the legal waters, but in support of the proposition that the election had been “stolen.” Stolen by means and persons unknown, but stolen nonetheless.

That “situation,” created by Trump’s own irrational insistence and domination of his political party, led to the January 6 assault on the Capitol Building in which a violent mob of Trump supporters tried to prevent the final certification of the Electoral College vote count. Trump watched on TV, apparently quite happy with his handiwork. He was a hero to his fans and within arms’ reach of getting the second term he claimed to deserve.

The attack failed, a perfect metaphor for Trump’s presidency.

Trump’s term ends at noon on January 20, just three days away. The nation’s capital city is an armed military camp awaiting a predicted resumption of the January 6 attack in an attempt to overthrow the government and install Trump as dictator.

Time will tell. But what is clear to me at least is that Donald Trump has violated the fundamental and central premise of democratic government. He has rejected his electoral loss and is trying to force himself on the country for a second term.

This then is the root of the tree of ultimate political evil. Unwillingness to accept the loss and move on after being heard more than 60 times in court, and despite multiple audits and recounts, is a  bridge too far, an undoing of norms, conventions and legal/Constitutional principles from which there is no recovery for forgiveness. In this effort, Trump is supported by multiple elected representatives of the people in the national legislature.

For those reasons alone, though there are many others, Trump should not only be convicted in his second impeachment, but he must also be prevented from holding public office again. If you don’t play by the rules, you must not be allowed on the field. The same is true for the other politicians who continue to falsify, fabricate and bloviate regarding the election result. They — Hawley, Cruz, Johnson and the others who voted to reject the final count even after the January 6 coup attempt —  must be removed from office and banned from holding another.

Defeating Trump’s Coup d’état

Donald Trump is planning to take control of the U.S. government regardless of the outcome of the 2020 election. I believe that deeply. Even if I’m wrong about that, we must prepare on the assumption that I’m right. If wrong, and he goes quietly, fine. If I’m right, saving the country and its republican form of democracy will likely depend on how we prepare in the next three months.

The classical definition of a coup d’état is the “sudden, violent, and illegal seizure of power from a government.” But there are other, more subtle ways of accomplishing a coup. Trump himself, a master of the “I am a victim” trope, has argued repeatedly that the Mueller investigation was an attempted coup. Many Republicans have reiterated that “argument.” Now the argument has morphed into an attack on mail-in voting, a process similar to absentee voting and identical to the voting procedures used in five states: Colorado, Hawaii, Oregon, Washington and Utah.

Timothy Snyder, author of  On Tyranny: Twenty Lessons from The Twentieth Century, has described Trump’s position as a “prime historical fascist tactic”: create a crisis, then use that as an excuse to reject the peaceful transfer of power. Snyder knows a thing or two about tyranny and how it can work to destroy a democracy. He has written that “Trump’s ‘Delay the Election’ tweet checks all 8 rules for fascist propagandahttps://wapo.st/3i0remw We ignore his warnings at our extreme peril.

Since Trump can’t legally delay the election on his own, his main task is to find someone to foul up the election so he can claim a right to stay in power. The tactic is not unlike the infamous “will no one rid me of this turbulent priest,” an utterance by a king that led to the murder of the Archbishop of Canterbury. He has launched a multi-front attack to get his way: undermining the U.S. Postal Service and claiming mail-in voting is the cause of massive voter fraud.

Let’s move from the sublime to the practical. According to the U.S. Election Assistance Commission, there are about 200,000 polling places in the United States even after the Republicans’ massive voter suppression efforts in multiple southern states to reduce polling places so as to increase voter travel and waiting-in-line times. Election Administration & Voting Survey, 2018 Comprehensive Report to Congress. https://bit.ly/39UakD7

That Report notes that,

more than120 million Americans voted in the 2018 general elections, a turnout rate of 52 percent of the Citizen Voting Age Population (CVAP) .… turnout in the 2018 general elections increased in nearly all states when compared to 2014. Some states saw turnout levels that approached those of a typical presidential election.

That was the glorious Blue Wave that swept Democrats into control of the House of Representatives. Moreover,

More than half of voters cast their ballots in person on Election Day, and one-quarter of participants cast their ballots by mail. Nearly one-fifth voted early at in-person early voting sites, a rate that more than doubled since the 2014 elections. In six states, more than half of ballots were cast at in-person early voting sites. Although the overall rate of by-mail voting has not changed significantly since 2014, the states of California, Montana, and Utah saw large increases in their statewide by-mail voting rates.

These remarkable results involved more than 600,000 volunteer poll workers. However, nearly 70 percent of responding jurisdictions reported that it was “very difficult” or “somewhat difficult” to obtain a sufficient number of poll workers. That was, obviously, long before the coronavirus pandemic. This year the challenge will be massively greater.

There are numerous other obstacles to more robust voting. For example,

Thirteen states do not offer online voter registration

Fewer than half of states allow for same day voter registration

Only three states run their elections entirely by mail (4 others have all-by-mail voting in select local jurisdictions

About a quarter of states require in-person early voters to provide an excuse for doing so

Less than one-third of states have vote centers or allow voters to cast ballots at any polling place in their jurisdiction.

That is what Republican control of many state legislatures, combined with active Republican voter suppression tactics, have left us.

Given the pandemic and ongoing threats to voting by Republicans in 2020, what could go wrong? Answer: everything; the signs are unmistakable.

Republicans, including Trump himself, have publicly admitted that, for example, changes like universal automatic voter registration and mail-in voting will favor Democrats. Therefore, Republicans conjure various bogus and non-evidence-based claims of massive voter fraud, mistakes and delays, even as Trump’s appointee to head the U.S. Postal Service works to cripple the Service’s ability to adapt to major volume increases for the upcoming election. And Trump urges the voter suppression work onward because, as Prof. Snyder has observed, he pretty well knows he’s going to be defeated in a fair election process.

What can Democrats do to avoid the roadblocks Republicans are going to place in the path of increased voter turnout?

The answer is to plan out every potential obstructionist scenario and prepare countermeasures accordingly.

At the most basic level, it is crucial to identify polling places where long lines are likely on November 3. For every such location, Democrats should provide portable toilets, snacks, water, rain ponchos and anything else that will make it easier for voters to stay in line as long as it takes. Virtually everyone who gives up and leaves the line will not return later to vote, so it crucial to help every Democrat stick it out as long as needed.

The actual voting process must be closely observed to assure that bogus obstacles are not thrown in the path of voters. In cases of asserted issues, poll watchers must insist that provisional ballots be provided, and a close count must be maintained of how many such ballots are collected. Watching the final tally at the end of the voting day is equally important. This process can be tedious and a bit complicated; trained observers are important, as their mere presence will discourage shenanigans during the counting and reporting process.

To the extent consistent with local laws, videos and photographs should be taken of the physical setup of each polling place. Record any incidents of potential voter interference outside the polling station. The recent incidents in Minnesota, for example, in which armed “protesters” demanded removal of mask requirements and opening of lockdowns at state legislatures and elsewhere are evidence suggesting that armed groups may appear at polling places in “open carry” states to try to intimidate voters by their presence.

Democratic watchers must be present to record any such incidents and to reassure waiting voters that they should not be deterred from exercising their right to vote. Armed “militias” should not be allowed to, for example, interrogate voters approaching the polling station about why they are there. Poll-watchers should be equipped with contact information for the State and Local Police as well as key media outlets in the area. The more eyes on the situation, the less likely actual acts of intimidation will be successful. In polling places located where potential disruptions are considered most likely, Democrats should always have more than one person on-site from opening to reporting of the final tally.

These recommendations are a tall order, requiring a large commitment from many people. Nevertheless, the stakes are also extremely high — nothing less than the survival of American democracy. Trump intends to steal the election by whatever method works and he has started multiple paths to that end. Having sent federal “troops” to Portland and other cities on the pretext of protecting federal property, with the predictable result of further destabilizing the situation and increasing the violence, he will stop at nothing to get what he wants. The people must stop at nothing to thwart his plan to undermine democracy.

It’s important to remember that Trump’s hard-core supporters are a minority of the voting population. Hillary Clinton’s popular vote was larger by just under 2.9 million votes. Her defeat was a product of many things, not least of which was Russian interference and the Electoral College, the vestige of a past time that enhances the voting power of the smaller states and thus, for example, enlarges the impact of southern state resistance to social policies favored by Democrats. It is likely Trump is getting help from Russia again this year. The election rules are fixed for now so the answer to Trump is maximum Democratic voter turnout.

Also keep in mind that Trump has lied repeatedly about his agenda. Just one example — his lawyers are in court right now trying to end insurance protection of pre-existing conditions. If re-elected, Trump will have free-reign to bring down what remains of America’s best institutions. If defeated, we can immediately begin rebuilding a civil society that treats all citizens fairly and promotes the common good of everyone, including recovery from the pandemic.

It’s up to you. If you can do it, please volunteer to help on Election Day. We must prepare for the worst case if we’re going to win.