Tag Archives: Eastman

Prosecution of Donald Trump

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People in media and elsewhere are falling all over themselves to influence the public’s understanding of Donald Trump’s guilt for multiple crimes while in office and thereafter. The nature of these “explanations” for the “difficulties” of convicting Trump have shifted somewhat. At first, there were the “defenses” suggested around whether Trump was legally responsible for inciting the January 6 attack on the Capitol. You know, the First Amendment that he was just engaged in protected “political speech.” That argument has pretty much dissolved in the face of overwhelming evidence developed by the January 6 Select Committee and other sources noting, correctly, that speech that is part of a criminal conspiracy, for example, is not protected “freedom of speech.”

We now have Republicans with credentials suggesting there are major difficulties in the path of Attorney General Garland’s struggle whether to indict the former president. In a Sunday New York Times “Guest Essay,” entitled “Prosecute Trump? Put Yourself in Merrick Garland’s Shoes,” Jack Goldsmith argues that the AG has three difficult decisions to make.

Mr. Goldsmith’s credentials are imposing. He served in the George W. Bush administration as an assistant attorney general, office of legal counsel, and as special counsel to the general counsel (??) of the Department of Defense.  He is a Harvard law professor and a senior fellow at the Hoover Institution (yes, that Hoover), and a co-author of “After Trump: Reconstructing the Presidency.”

To his credit, Goldsmith admits up front that Trump’s claim of election fraud was false. He also admits that, faced with multiple failures to secure his objective, Trump “riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.”

To mitigate this problematic situation, Goldsmith says Garland must first decide who should decide whether to indict Trump. He argues that DOJ likely has a conflict of interest because Garland’s “boss,” President Biden, is a likely opponent of Trump in the 2024 election. Thus, if another condition is met (Garland believes appointment of a special prosecutor is “in the public interest”), the AG must appoint a special counsel (another Mueller) to investigate Trump and decide the indictment issue. He goes so far as to note that “some people” believe that a quasi-independent special counsel should be a Republican (and you thought my reference to Mueller was just historical; remember who we’re talking about here).

After more back-and-forth, and like a good law professor, Goldsmith concludes this issue with the observation that “Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70-30.” I think that means Garland could decide that Garland should decide.

This is where things get really hinky. The second major decision, Goldsmith says with a straight face, is whether Garland,

has adequate evidence to indict Mr. Trump… The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” [emphasis added]

These issues, Goldsmith says, “will be hard conclusions for Mr. Garland to reach.”

To that, I say, C’mon, man. Be serious.

Goldsmith’s argument is that the evidence developed by the January 6 Select Committee is too “one-sided” and that,

Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.

Putting aside the position of the freshly corrupted Supreme Court (the Thomas scandal, questions about who paid Kavanagh’s debts, etc.), the rest of these issues, while certain to be raised, pose no serious threat to a well-crafted evidentiary case that overwhelmingly, just on what we now know, demonstrates Trump’s guilt on multiple federal counts. See, for example, the Brookings Institution’s report, Trump on Trial. See prior post, https://shiningseausa.com/2022/06/20/trump-crimes-report-marked-up/ And that does not include the nine remaining counts of obstruction of justice that Mueller uncovered but felt he was blocked by DOJ policy on indicting a sitting president.

Undeterred, Goldsmith suggests Trump has potential defenses in the argument that “he lacked criminal intent because he truly believed that massive voter fraud had taken place” and “his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive.” I don’t know whether to laugh or cry.

Goldsmith can call these arguments “legally powerful claims” all he wants, but the weight of reality is simply too great here. More on the “intent” issue in a bit.

Goldstein then says the third issue, in his reckoning the most difficult, is: “whether the national interest would be served by prosecuting Mr. Trump.”

He rightly says this is “a judgment call about the nature, and fate, of our democracy.”

A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.

And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.

Along the way, the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.

Mr. Goldstein is a master of both-sides-ing. But the effort fails in my judgment because:

  • It is not the Attorney General’s job to promote national political reconciliation. His job is to prosecute serious violations of federal law. There are none more serious than the attempts to overthrow the government, subvert the election and declare Trump the winner even though he lost.
  • Confidence in the justice system, already threatened by partisanship and conflicts of interest on the Supreme Court, cannot be promoted by letting a public criminal walk free just because he was president.
  • Republicans have already made clear that, if they gain enough political power, they will pursue policies of retribution wholly independent of substantive merit. If Trump has a role in that, it should be from prison.
  • The people who will see Trump as a victim of politicized justice are the same people who deny Biden’s election victory. In the grand tabulations involved here, they are entitled to zero deference.
  • Justice Department norms of independence and integrity, undermined by Trump, can only be restored by indicting and trying Trump, not by pretending none of this happened.
  • If the Department of Justice won’t stand up for our democracy, we will, as Ben Franklin suggested, lose our republic.

I noted above that I would return to the issue of “intent” that many observers have claimed is the centerpiece of the legal defenses Trump would raise. See “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges.” https://nyti.ms/3xKwrZ9 The authors of these ideas continue to suggest that Trump’s “intent,” his “corrupt state of mind, or not,” is a real issue and challenge for any prosecution.

Given what we already know, these concerns about Trump’s intentions border on preposterous. The repetition of them seems designed to prime the public mind to believe something that, like the Big Lie, is quite unbelievable because of, you know, the facts.

The New York Times piece recites Trump’s “arguments” based on a 12-page statement he issued last week, a statement the article described as,

· “rambling”

· “usual mix of outlandish claims, hyperbole and outright falsehoods”

· “unfounded”

· “obvious problems of credibility”

But also,

On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available. What happened at the Capitol on Jan. 6, 2021, Mr. Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”

If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal. [emphasis added]

As a potential defense, the tactic suggested by Mr. Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold on to power rather than to address some broader perceived vulnerability in the election system.

But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.

What? The article emphasizes that Donald Trump is a dishonest and remorseless serial liar while simultaneously saying this complicates prosecution of him? This bizarre position is apparently based on the views of Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor:

“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Mr. Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring. “The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes.”

Another authority, Samuel W. Buell, a law professor at Duke University and former federal prosecutor, said:

any criminal case against Mr. Trump would have to start with establishing that he had been aware that what he was doing was improper. “You need to show that he knew what he was doing was wrongful and had no legal basis,” he said. “I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”

If that is the standard, it has been met many times over. No rational juror could find otherwise based on the evidence presented during the January 6 hearings.

I recognize, of course, the article’s point that, “The House committee’s hearings are not a trial. The panel is free to be selective in what testimony it employs to build a case against Mr. Trump, and the former president has no allies on the committee who can question witnesses or provide information helpful to him.”

Consider for a moment who might be Trump’s “witnesses” to rebut the allegedly selective, but entirely consistent and multiply attested to, evidence presented by the January 6 Select Committee: Rudy Giuliani, Lin Wood, John Eastman, Jenna Ellis, Sidney Powell, and others similar. Most of them have either had their law licenses suspended, are subject to disciplinary proceedings or pleaded the Fifth Amendment 100 times when testifying to the January 6 Committee.

Against that “evidence,” would be the testimony of the former Attorney General (Barr), a Trump loyalist, and numerous other highly credentialed people who had investigated the fraud claims and advised Trump there was no evidence to support his claims. Also, Greg Jacob, VP Pence’s chief counsel. And many many others.

Unless we are going to follow a rule of law that says a person’s intent is measured entirely by whatever phantasmagorical imaginings they choose to adopt, which is not the law [unless they want to argue that Trump is insane, in which case, he gets committed 😎😃], Trump’s corrupt state of mind can readily be proven beyond a reasonable doubt.

The fact, if it is one, that he wanted to believe something else, something that was false, cannot be accepted as a defense any more than we would accept the excuse that the driver causing a fatal accident was blind drunk at the time. Every one of Trump’s responsible advisors told him, some many times, that there was no credible evidence of voter fraud that could change the result. He continued to declare that he won “by a landslide.”

It is beyond astonishing that credence is being given to the idea that because Trump was a serial liar, it may be harder to prove his guilt:

Expert advice is often enough to show a jury what a defendant knew, lawyers said. But that may be more difficult with Mr. Trump because he has such a long history of disregarding experts and his own aides, they said. Given the challenge of showing what Mr. Trump actually knew, there is one other way prosecutors could show he had a corrupt intent: proving what is often called “willful blindness.

Nonsense. The prosecution may choose to jump through all those hoops, but it should be more than sufficient to prove that Trump’s credible advisors told him his claims were false, but he persisted with the Big Lie anyway. A properly instructed jury could rationally and easily find Trump guilty on that basis. The suggestion that the prosecutors must somehow plumb the depths of Trump’s “mind” to determine and prove his subjective intent in fact is unnecessary and impossible. His behavior tells you what his mind was thinking. Trump has never cared about the truth and has always used his large resources and willing accomplices to avoid being held accountable. In this case his public conduct and the disclosed facts are more than sufficient to convict.

I recognize, however, there is the “what if we indict, try and lose” school of thought. The answer is, I suggest, straightforward. There are no guarantees when it comes to criminal prosecution. But we’re talking about the fate of the country here. This is no time for timidity. If DOJ’s leadership is too afraid of the possibility, however remote, of defeat, it should be replaced forthwith by people of more courage and determination.

I am at a loss as to why the media and many lawyers continue to treat Trump like a grammar school-aged toddler who still believes in Santa Claus and the Tooth Fairy. I understand that there are people, more than we would care to think, who genuinely believe that the Earth is flat, that aliens walk among us, that Q is real and on and on. But those “beliefs” would not be effective defenses to, say, a charge of bank robbery: “Well, your Honor and members of the jury, it’s true I robbed the bank, but I did it only because an alien visited me and said his group needed the money to buy a spaceship for return to their home planet. Many people want the aliens to leave so I was justified. You must find me innocent.”

Enough with this nonsense. Indict him, try him, and convict him.

 

Trump’s Documents – Trump’s Crimes

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

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

There Was No Election Fraud in 2020

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

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

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

Eastman’s Plan to Overturn the Election

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

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

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

But,

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

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

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

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

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

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

 Refusal to Produce Documents to January 6 Select Committee

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

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

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

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

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

Trump Committed Crimes

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

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

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

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

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

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

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

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

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

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

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

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

The illegality of the plan was obvious.

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

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

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

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

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

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

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

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

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

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

Finally,

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

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

The Fourth Reich — It’s Them or Us

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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.