Tag Archives: First Amendment

That Flushing Sound You Hear

… is the credibility and the last scrap of integrity of the Washington Post’s Editorial Board being flushed down the toilet of history.

I was stunned this morning to read this morning that the Post’s Editorial Board has undertaken to undermine former Special Counsel Jack Smith’s argument that (1) Trump’s knowingly false claims about the 2020 election were not First Amendment protected speech, and that (2) Trump’s attacks on the prosecutor and his staff, which led to multiple death threats, were not First Amendment protected speech. Adding to that gross distortion of First Amendment jurisprudence were the snide and facially absurd claims that Smith was “seeking to muzzle a candidate for high office” and that his efforts “probably helped Trump win the 2024 election.”

No mention of the Post’s decision to withdraw its endorsement of Kamala Harris, forced on it by Post-owner, Trump supporter and financial beneficiary thereof Jeff Bezos. One cannot help but wonder what role Bezos is playing in directing the positions of the Editorial Board now.

In my semi-skilled understanding of the First Amendment and a fair reading of what Smith actually said in his deposition, the Post’s Editorial Board has deliberately misread and misstated what Smith said and what he did as Special Prosecutor to try to bring Trump to the justice that he has now, once again, completely escaped.

The EB says, “the indictment accused Trump of lying so pervasively about the election that he committed criminal fraud.” What Smith actually said, in response to a question suggesting Trump’s knowing lies about the election were protected by the First Amendment, was that the fraud exception to First Amendment immunity was well-established law, a statement that is unquestionably correct. The fact that other politicians in the future might try to claim such protections for their own make-believe versions of events in the future is no reason to exempt an out-going president/candidate from a knowingly-false and frequently pressed version of events designed to prevent the application of constitutionally-sanctioned actions are/were at the core of the peaceful transfer of power on which our government system is based.

If the Post’s EB has its way, future politicians will not only be able to press phantasmagorical versions of events on the public at will, but they will be able to do so in the cause of preventing the electoral process from functioning as it was intended (let’s not forget Trump’s fake electors scheme that, as Smith recounted, proved to be even a bridge too far for some of Trump’s devoted acolytes).

The EB labels Trump’s multiple knowingly false statements about the 2020 election as only “odious” and in keeping with the claims of other politicians who, not unusually, “take factual liberties” that constitute mere “misdirection” that should be addressed by “public scrutiny” rather than prosecution.

Perhaps equally preposterous is the EB’s claim that while “of course fraud is a crime,” it’s usually just about lying to get money, “not political advantage.” “Most political speech is aimed at influencing government functions.”

Maybe that was true before Trump but prosecuting a politician for what the EB backhandedly admits were “brazen and destructive falsehoods” will “inevitably” lead to exploitation by some future prosecutors “with different priorities” has already occurred and has nothing to do with what Jack Smith thinks. In case the EB is unaware, given Trump’s disposition to disregard court decisions, Trump, armed with the criminal immunity protection awarded him by the Supreme Court, Trump’s Justice Department is now serving as Trump’s personal counsel in trying to prosecute his “political enemies.” It is entirely a function of the collapse of democratic guardrails under a president who has no idea about and no interest in complying with the United States Constitution. The Post’s EB cannot be aware of what has happened since Trump took office. But with Bezos calling the shots now, it doesn’t seem to matter.

It was especially interesting, I thought, that the EB thought Smith’s efforts to obtain gag orders against Trump’s attacks and personal threats would simply “interfere with the legal process.” While Smith no doubt believed that was true, his argument was that Trump’s attacks were jeopardizing the safety of the people working on the cases and that such attacks needed to be restrained because they could, in ways obvious and not, to influence how the prosecution was conducted.

Yes, the courts limited the scope of the protections Smith sought. That’s what courts are for. Only the most willfully blind and/or indifferent observer could not see that Trump had and continues to have the support of the courts for most of his most egregious conduct. Of course, Trump can, and always could, claim he was being unfairly prosecuted, but that is not what he was doing. The EB’s claim that Smith had a “cavalier attitude toward constitutional safeguards” is the height of hypocrisy, given Trump’s total disregard for the Constitution that he has expressly stated he does not support notwithstanding his oath of office to the contrary.

The EB’s final swipe is to criticize Smith for seeking what it calls the “phone records” of Republican members of Congress, including House Speaker Kevin McCarthy (does the EB think the Speaker of the House is also immune from criminal conspiracy?) Smith addressed the issue of those phone records in detail during his deposition. The records sought were toll records, showing who was calling whom but nothing about the content of the conversations.

Apparently, the Washington Post is perfectly fine with members of Congress conspiring to break the law and defy the Constitution. I, on the other hand, am delighted that we had an experienced prosecutor aggressively seeking justice and enforcement of the Constitutional principles that have sustained our country since June 1788. Our democracy now hangs by a thread. It is past time to take it back from Trump and his fascist fanatics. Trump/Vance must be removed.

The Deposition of Jack Smith, Special Counsel

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The House Judiciary Committee has released a 255-page transcript, as well as an 8 hour and 20-minute video, of its closed-door deposition with Jack Smith. Smith, you recall, was appointed by President Joe Biden to investigate and, if warranted, prosecute Donald Trump for his attempt to overthrow the 2020 election by violently preventing Congress from executing its responsibility to peacefully transfer the executive power on January 6, 2021. Smith’s work was inexplicably delayed by then Attorney General Merrick Garland so that, when Trump was elected the second time, all the prosecutions were stopped and eventually dropped entirely.

Thus, Donald Trump, once again, escaped justice.

On January 6 my wife and I watched on TV from our apartment at Pennsylvania Avenue and 24^th Street NW in Washington in disbelief as the attack on the Capitol unfolded, arranged and spurred on by Donald Trump. Surely, we thought, this will be the end of Trump. This is simply a bridge too far. We were wrong. Today, the anniversary of the attack on the Capitol, is an appropriate time to review Jack Smith’s deposition.

You are not likely going to read the entire deposition transcript. I have done so in your place and excerpt it here. The version on which I have relied is reproduced at: https://thenationaldesk.com/news/americas-news-now/house-judiciary-committee-releases-255-page-transcript-of-jack-smiths-deposition-former-special-counsel-president-donald-trump-criminal-investigations-probes-prosecutions-classified-documents-2020-presidential-election-joe-biden.

I begin by noting that the Republican politicians who led the questioning were partisans, determined to exonerate Trump regardless of the evidence. The transcript thus begins with this:

Chairman Jordan has requested this deposition as part of the committee’s oversight of the Biden-Harris administration’s weaponization of the Justice Department and its misuse of Federal law enforcement resources for partisan political purposes.

You may recall that immediately upon taking office the second time, Trump pardoned all the hundreds of convicted people who attacked the Capitol on January 6. That action speaks for itself.

The deposition began with Mr. Smith’s counsel noting that the deposition was being conducted with Volume Two of the special counsel’s report withheld per demand of Donald Trump:

… that amounts to gagging Mr. Smith today and preventing him from telling this committee about his investigation into President’s Trump’s crimes. And, specifically, these crimes include stealing and lying about classified documents he kept in the ballrooms and bathrooms of his Mar-a-Lago clubhouse. And there is no reason at all to continue to keep Volume Two under seal — besides, of course, the fact that Mr. Trump doesn’t like what it says.

A second major limitation, in place at the behest of the Department of Justice, was described this way:

This morning, just over an hour ago, the Department of Justice sent us an email affirming its view that Judge Cannon’s order applies to Mr. Smith and that it precludes him from disclosing any nonpublic information that may be contained in Volume Two, including but not limited to interview transcripts, search warrant materials, business records, toll records, video footage, records obtained by grand jury subpoenas, attorney-client communications, and potential for Rule 404(b) evidence. This restriction significantly limits Mr. Smith’s ability to discuss the classified documents case.

My summary of the deposition must be read in light of these Republican-imposed restrictions obviously intended to protect Trump from incriminating disclosures. Further, despite an express invitation, the Department of Justice declined to have a staff attorney present during the deposition to facilitate the prompt resolution of any questions that might arise regarding the proper scope of questions asked.

Semi-finally, in keeping with Trump’s general approach to the January 6 and document theft issues, he publicly called for the arrest of the special counsel. It was noted on the record that,

Yesterday the President’s chief of staff is reported to have confirmed in interviews that the President is indeed pursuing criminal prosecutions against his perceived adversaries as part of a retribution campaign.

And, finally, to put to rest the slanting of the narrative by the media, Smith’s clear and unequivocal opening statement began with:

Our investigation developed proof beyond a reasonable doubt that President Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power.

Our investigation also developed powerful evidence that showed that President Trump willfully retained highly classified documents after he left office in January of 2021, storing them at his social club, including in a ballroom and a bathroom. He then repeatedly tried to obstruct justice to conceal his continued retention of those documents….

The timing and speed of our work reflects the strength of the evidence and our confidence that we would have secured convictions at trial. If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.

And so on to the merits, as Republicans tried to frame the issue as one of infringing on Trump’s First Amendment rights to complain about the election outcome. Jack Smith speaks:

There is no historical analog for what President Trump did in this case. As we said in the indictment, he was free to say that he thought he won the election. He was even free to say falsely that he won the election. But what he was not free to do was violate Federal law and use knowing — knowingly false statements about election fraud to target a lawful government function. That he was not allowed to do. And that differentiates this case from any past history.

… the evidence here made clear that President Trump was by a large measure the most culpable and most responsible person in this conspiracy. These crimes were committed for his benefit. The attack that happened at the Capitol, part of this case, does not happen without him. The other co-conspirators were doing this for his benefit. So in terms of why we would pursue a case against him, I entirely disagree with any characterization that our work was in any way meant to hamper him in the Presidential election.

… our evidence is that he in the weeks leading up to January 6th created a level of distrust. He used that level of distrust to get people to believe fraud claims that weren’t true. He made false statements to State legislatures, to his supporters in all sorts of contexts and was aware in the days leading up to January 6th that his supporters were angry when he invited them and then he directed them to the Capitol. Now, once they were at the Capitol and once the attack on the Capitol happened, he refused to stop it. He instead issued a tweet that without question in my mind endangered the life of his own Vice President. And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it. And then even afterwards he directed co-conspirators to make calls to Members of Congress, people who had [sic]were his political allies, to further delay the proceedings.

Regarding Smith’s moving for gag orders against Trump’s threats:

… with respect to D.C., both the district court and the court of appeals, a panel of judges, found that his actions were, in fact, causing what we said they caused. They were causing witnesses to be intimidated and endangering people. And I believe it was the court of appeals also found that in addition to intimidating or chilling witnesses who existed, it would chill witnesses who had not yet come forward because they were afraid that they would be next.

Regarding the question of the Congressional committee reviewing the special counsel’s case files from the investigation:

Mr. Goldman. If the case files were released, would they include any political considerations by you or your team as you investigated and charged these cases?

Smith: We did not consider politics. I did not consider politics, anyone’s politics, in charging these cases.

Mr. Goldman. And that would be borne out presumably by the case files?

Smith: I’m not aware of anything in the case files that would contradict that.

Mr. Goldman. Because it never happened?

Smith: It never happened.

Smith:

The right to vote in a presidential election is one of the most sacred rights that America has – Americans have, and in this particular case, we had strong evidence that the defendants in this case sought to interfere with, obstruct, injure that right. We had evidence, and just a couple of examples, where President Trump was asking local officials to find 11,000 votes. When you find 11,000 votes, you’re diluting other people’s votes. We had evidence they were targeting other states and particularly certain parts of other states, generally urban parts of States, to have those votes thrown out with no factual basis whatsoever. I believe we cited this in our final report, but there is even statements of the co-conspirators in this case, at least one that’s coming to mind now, specifically saying, “We want to get rid of these votes. We want to subtract them.” And, diluting the vote count in that way, there is strong precedent for that being a violation of the statute that we charged.

Mr. Goldman. Did you ever prosecute someone that you did not believe was guilty beyond a reasonable doubt?

Smith: Never.

When Committee Chairman Jordan resumed questioning Smith, he pressed on the question of why Smith sought the toll records of members of Congress from January 6 when he, Smith, could simply have asked for them. Smith’s response:

… you say now that nobody is disputing, but my experience in criminal investigations is that people often at trial dispute things that you never thought were going to be in dispute during the investigation and so, when I conduct a criminal investigation, I don’t assume there will be no disputes.

Having a record that is a hard record about a time, and the timeline about that particular afternoon was important because the violence had started. The President refused to stop it. He endangered the life of his Vice President, and then he’s getting calls, and not just – not calls from Democrats, not calls from people he doesn’t know – calls from people he trusts, calls from people he relies on – and still refuses to come to the aid of the people at the Capitol. That’s very important evidence for criminal intent in our case.

Name of questioner deleted:

So do you recall any evidence, when you were talking to Mr. Giuliani, that he truly believed all the voter-fraud claims that he was putting out around the country?

Smith:

Our evidence was, he did not. And, in fact, when we interviewed him, he disavowed a number of the claims. He claimed they were mistakes or hyperbole, even the claim about Ruby Freeman, where he, you know, basically destroyed this poor woman’s life by claiming she was a vote scammer. President Trump did the same thing in a recorded call with the Secretary of State; he disavowed things he’d said in that interview.

Smith:

Another example I can give is that Sidney Powell, who’s alleged as one of the co-conspirators, was part of his team at the beginning of this conspiracy. Shortly after, she began making statements that really nobody could credit, that were facially false. And at some point, Giuliani made a statement that she wasn’t on the legal team anymore. And Trump at one point was on a call, President Trump, where he, if I recollect it right, he muted the call and said she was crazy. But then, after that point, he continued to promote her fraud claims and lawsuits. He considered putting her as a special counsel, even though he’d admitted — you know, he used the word “crazy,” and the statements she was making couldn’t by any reasonable person be viewed as true. And so I think that sort of, like, claims that were so outlandish and so just fantastical, continuing to push those sort of claims after they’d been disabused, was strong evidence of our case.

Mr. Lofgren:

What did Donald Trump want Vice President Pence to do to overturn the election results?

Smith:

Well, ultimately, he wanted him to just hand him the election, to say he won. There were different proposals that President Trump and his co-conspirators put to Mike Pence, but, in essence, he wanted Mike Pence to impose his own choice about who should be President over the will of the American people who voted in the election.

Mr. Lofgren:

Was one of those ways that Donald Trump tried to pressure Mr. Pence was to reject the lawful elector certificates of their votes during the electoral counting process? Was that one of the ways that you recall?

Smith: That’s correct.

Questioner redacted:

Can you help now bring us full circle on how you analyzed the First Amendment claims with the knowledge of the fraud that Mr. Trump was putting out to the American public in 2020 and 2021?

Smith:

Sure. From a legal perspective, this is really quite clear. I think all of us want to make sure people’s First Amendment rights are not abridged in a way that they shouldn’t be. I think I certainly feel that way. I’m sure everybody in this room feels that way. But there is a very clear carve-out for fraud in our case law. The Supreme Court — I think there’s — one case is the Stevens case, talks about that, and there are others. And so when you’re committing a fraud, meaning you’re not just saying something that’s untrue, you’re saying it knowing it’s untrue or with reckless disregard for the truth, that’s not protected by the First Amendment. People commit crimes all the time using words. And when someone commits a fraud, an investment fraud, or someone commits an affinity fraud, where you try to gain someone’s trust, get them to trust you as a general matter, and then you rip them off, you defraud them, that’s all words, but it’s not protected by the First Amendment. And in a lot of ways this case was an affinity fraud. The President had people who he had built up — who had built up trust in him, including people in his own party, and he preyed on that. Some people wouldn’t do it. Others would. We’re lucky that enough wouldn’t that the election was upheld.

Regarding the Supreme Court’s decision that Trump was absolutely immune from accountability for crimes committed while executing the president’s executive powers:

Smith:

All of those witnesses … would still be available to us. The heart of our case would still be available to us.

And I think it’s important to know that … our view was that he abused his authority in the Justice Department to as one way, to effectuate this scheme. This was about him as a candidate trying to say he won an election he didn’t win, and so, having to frame this in that matter, obviously, it limited some of the evidence. That’s why we had to supersede the indictment.

But I don’t think it was an exoneration because I still believed that there was substantial evidence that would allow us to prove the case beyond a reasonable doubt.

The balance of the deposition relates to the indictment and related search of the Mar-a-Lago premises for confidential documents that Trump removed from the White House, stored in insecure facilities where many people without security clearances could have seen them, and about the efforts of Trump and his aides to conceal the documents from the attorneys searching for them. Smith notes in the deposition that the judge (a Trump appointee) who decided the challenges to the search of Mar-a-Lago had stated that “the defense motion does not even meaningfully challenge the presence of probable cause in the affidavit.” Smith also noted that “President Trump kept these incredibly highly classified documents in boxes with all different sorts of things of all different sorts of shapes and sizes — clothing, memorabilia, newspaper clippings, things of that nature.”

Near the end of the deposition, a redacted questioner posed these questions:

Q: So, Mr. Smith, you spoke earlier today about threats and attacks against — made by Donald Trump against witnesses, prosecutors, judges who had challenged him, including threats against yourself. Do you remember that?

Smith: Yes.

Q : So did President Trump target you personally in posts on Truth Social?

Smith: Yes.

Q: Are you aware, for example, that he called you a, quote, “deranged lunatic,” unquote; quote, “Trump hater,” unquote; and, quote, “psycho”?

Smith: Yes.

Q: Do you recall that, on October 15th this year, President Trump, speaking to reporters, standing next to the Attorney General and the Deputy Attorney General, said, quote, “Deranged Jack Smith, in my opinion, is a criminal,” unquote? Then he also talked about investigating Lisa Monaco, Andrew Weissmann, and Adam Schiff, saying, quote, “I hope they’re looking at all these people. And I’m allowed to find out. I’m, in theory, the chief law enforcement officer,” unquote.

Smith: Yes, I’m aware of that.

Q: And are you aware that President Trump posted on Truth Social on October 29th of this year that, quote, “these thugs should all be investigated and put in prison. A disgrace to humanity. Deranged Jack Smith is a criminal!!!” with three exclamation marks, unquote?

Smith: That may be. I know there were several posts like this.

Q: Okay. Do you think those were a direction, potential direction, to Department of Justice to retaliate against you because of your role as special counsel in 1 the investigation of him?

Smith: Yes.

Q: You are joined by your counsel today from Covington & Burling. Is that right?

Smith: Yes.

Q: And did President Trump or the White House take any actions against your attorneys due to their relationship with you?

Smith: Yes.

Q; And what action did they take?

Smith: They filed an executive order against the law firm and sought to withdraw the security clearances of my attorney.

The deposition concludes with a discussion of the fact that President Trump pardoned all of the convicted men and women who attacked the Capitol on January 6, 2021, injuring and killing police officers, and then pardoned the 77 people involved in seeking to overturn the 2020 election.

The Fork in the Road to Democracy or Dictatorship

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

― Alexander Hamilton, The Federalist Papers

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

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

Gagging Trump

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

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

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

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

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

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

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

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

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

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

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.

The Free Press on the Brink

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I read in Sunday’s New York Times an “Opinion” piece, entitled “The Free Press Needs Our Help.” https://nyti.ms/32c2wNh where the title is “Independent Journalism Is at Risk. Here’s How to Save It.” The article is co-authored by a Nobel Peace Prize winner (Maria Ressa) and a former NYT chief executive and director general of the BBC (Mark Thompson). Their argument is a familiar one. It makes a compelling case for its main point: “around the world, independent journalism is on the brink of extinction.”

Their solution is the creation of the International Fund for Public Interest Media that will be funded by governments, foundations and private companies and then make grants to “promising and trustworthy independent news providers worldwide.” Clearly an ambitious undertaking, likely to be challenged by, among other things, the reality that governments in some cases have been the primary force undermining the free press. That said, it’s a good idea.

I was most intrigued, however, by the reference to “trustworthy independent new providers.” What exactly is that? Is there a commonly understood meaning for it? In the United States, how does that concept square with the existence of entities like Fox News, Breitbart, OAN, Newsmax and the others? Not a day goes by that I don’t see someone in social media screaming for the government to “shut down Fox!” That, of course, is not going to happen as long as TrumpPublicans do not control the government and those entities continue to toe the right-wing line with the proper fervor. [There is also the First Amendment, but a second Trump administration faced with (however improbably) an insufficiently sycophantic Fox News would likely have no problem with a direct attack to compel compliance or else].

These random thoughts led me to reflect on certain “realities of American life,” the main one being that if it’s not prohibited, you may, legally, do it. That is one of the root/core principles that govern the American legal and political systems. On the other hand, the “ideal” of total freedom had some dire consequences. Thus, we regulate practices like law, medicine, hair-styling and other occupations who, absent qualifying instruction and demonstrations of minimum [or minimal] competency could make a real hash of things.

Still, even those principles have a fuzzy edge. Some people with doctorate degrees call themselves “Dr.” and mostly no one objects. Most people with doctorates don’t add that appellation outside interactions within their discipline, but some do. It burnishes one’s image in some circles to be known as “Dr.” Mainly, in the U.S., the status of having earned a Ph.D. is added at the end of one’s name, as in ShiningSeaUSA, Ph.D. (or JD for lawyers).

As with all such matters, the history is fraught and complicated. See https://en.wikipedia.org/wiki/Doctor_(title) if you have time on your hands.

My central idea (at last!) is that in “journalism,” almost anyone can claim the title, regardless of training, certification, experience or, well, regardless of just about anything. Thus, I can claim to be a journalist when I’m covering a protest at the Supreme Court for a potential blog post and who is to say nay? Armed with a camera (Nikon, if you please), and, if needed, a home-made “press badge,” I am indistinguishable from the other “real” journalists who write for actual media like the New York Times and Washington Post.

It occurs to me, then, that we have an opportunity to improve our situation by establishing some criteria of legitimacy for people who want to use the term “journalist.” We could, for example, establish national standards for the use of the term that, like the practice of law and medicine, would sanction persons with demonstrable relevant education and knowledge to call themselves journalists.

I well understand this would be complex and controversial. And, of course, someone (likely someone wanting to be considered a journalist but having neither education, training nor demonstrable knowledge of the field) would bring up the First Amendment. A good argument can be made that the 1A would not be implicated in a proper regulatory system because the requirements do not prevent anyone from speaking or reporting. They would only forbid the unqualified from calling themselves journalists.

I can hear the screams of outrage now, but I think this is an idea worth considering. It would not shut Fox News or Breitbart down, but a properly constructed code of ethics could go some distance to prevent such entities from passing themselves off as journalism. And, by the way, the same goes for the likes of CNN which, over time, has made a practice of presenting right-wing shills as “journalism” when it’s really something else.

This suggestion will not solve the entire problem, which is obviously complex, but this may well be a situation where we should be careful not to make the perfect the enemy of the good. Something to think about.

Indict & Arrest Trump — Charge with Sedition & Felony Murder

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Now to the known facts.

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

Donald Trump Jr., eldest son of the president

Eric Trump, second-eldest son of the president

Michael Flynn, former National Security Advisor to the president

Peter Navarro, Assistant to the President, among other things

Corey Lewandowski, 2016 Trump campaign manager

David Bossie, 2016 Trump deputy campaign manager

Adam Piper, executive director of the Republican Attorneys General Association

Tommy Tuberville, United States senator from the State of Alabama

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

Kimberly Guilfoyle, girlfriend of Donald Trump Jr

Michael Lindell, Trump donor and MyPillow CEO

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

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

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

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

The primary report notes:

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

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

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

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

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

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

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

Still earlier in January,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, where do we go from here?

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

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

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

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

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

Trump’s Presidency – the Real Game of Thrones

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I have just read that the Trump administration has refused to sign an international agreement involving New Zealand, France and the top social media companies headquartered in the United State that would combat online extremism. The cited objection: the First Amendment to the United States Constitution. While mouthing its general agreement that online extremism is a serious problem, the Trump administration suddenly is concerned that policies designed to more aggressively strike at the use of online platforms to promote extremist and violent behavior will conflict with freedom of speech guaranteed by the First Amendment.

This comes from the same president who, in the wake of the white supremacist/neo-Nazi march in Charlottesville declared there were “good people on both sides.” The same president who has declined multiple opportunities to take aggressive positions against extremist right-wing activities. The same president who ignores the all-too-frequent episodes of white assassins slaughtering children in schools and Muslims in their churches while jumping at every chance to complain that an immigrant person of color was involved in some crime.

This from the same president who has, dozens, if not more, times described the media as the “enemy of the people.”

So much for Trump’s concerns about the First Amendment. The truth is that Donald Trump supports online extremism from the racist right-wing white male cohort that produces most of it and that supports him no matter what he says or does. Trump cares nothing about the First Amendment except for its utility as a whipping boy when members of the free press speak negatively about him.

In this, as in most other things, Trump is a lying traitor to the United States.

Think that’s too strong? I have also just read that Trump’s attorneys have argued in litigation challenging a subpoena from the House Oversight and Reform Committee for Trump financial records. Trump’s attorneys maintain that Congress may not investigate the president regarding violations of the law, but only about matters that have a “legitimate legislative purpose.” That position expressly bars Congress from looking into whether the president was personally financially involved in a conflict of interest arising out of a particular piece of legislation.

The ironies of these arguments are almost too glaring to comprehend. There is no question that Congress has the power to bring impeachment proceedings against a sitting president for “Treason, Bribery, or other high Crimes and Misdemeanors.” The president’s lawyers seem to argue that, despite the wording, the impeachment clause refers to something other than “law enforcement.” That position is not only contrary to the Constitutional language, the principle of separation of powers and plain common sense, it also sets up the president as a person who can, with impunity, violate the law, violate his oath of office, and, generally, act like a king, above reproach, immune to sanction, free to act as he wants without restraint.

There is one irreducible fact about the U.S. Constitution that no amount of legal legerdemain can overcome: the Framers of the Constitution intended to preclude the assumption of kingly powers by the future chief executive of the government under Article II. Trump’s lawyers appear to have forgotten the reasons the War of Independence was fought. It is also commonly called the Revolutionary War — it was a revolution against the tyranny of the English crown, the claimed right of the King of England to treat American colonists however he wanted, above reproach, immune to sanction, free to act as he wanted without restraint.

Trump is now also hinting that he may not respect the outcome of the election that will consider his replacement in 2020. It is only a short step from that position to a claim that he doesn’t actually have to stand for re-election at all, that he can simply suspend the “rigged” election and remain in office as long as he wants.

If that is where Trump and his enablers in the Republican Party are headed, I then suggest, in all seriousness, that we will have a second American Revolution that will remove him from office one way or the other way. If it comes to that, his promoters like Senator Lindsey Graham will face a similar fate. This is the same Senator Lindsey Graham who, in February 2016, stated in public that Donald Trump was a “kook” and “crazy“ and not fit for office,” among many similar statements. It’s all on video: https://www.buzzfeednews.com/article/tomnamako/kook Now Graham is Trump’s most ardent supporter but he has nowhere to hide from his treachery. Nothing about Trump has changed for the better since Graham accurately described him in 2016. Graham, like Trump, is unprincipled and apparently willing to say and do anything to keep Trump, and himself, in power.

It is hard to imagine that the courts will sustain Trump’s argument that he is above the reach of law, but anything is possible. Everyone must pay close attention to what may seem like peripheral legal squabbling but is in truth laying the groundwork for a repudiation of the Constitution.

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Tag Archives: First Amendment

That Flushing Sound You Hear

The Deposition of Jack Smith, Special Counsel

The Fork in the Road to Democracy or Dictatorship

Gagging Trump

Prosecution of Donald Trump

The Free Press on the Brink

Indict & Arrest Trump — Charge with Sedition & Felony Murder

Trump’s Presidency – the Real Game of Thrones

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