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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 24th 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.

 

Hubris and the Junk Heap of History – Part 1

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Watching the descent of Donald Trump from indecent, corrupt, selfish, ignorant, and foolish to deliberate gross criminality that put the national security of his country at risk raises yet again the question of how someone with his alleged wealth, claimed high level of education and all the opportunities for success imaginable falls to such a state. And it’s not just Trump and his constantly grifting family to whom the question fairly applies.

The elected leaders of one of the two major political parties continue to support a candidate for leader of the country and commander-in-chief of the armed forces who has been twice-impeached (the party refused to hear the overwhelming evidence of his guilt) and now twice-indicted for multiple felonies, including threats to national security and against whom the evidence is, yet again, overwhelming. And more felony indictments are virtually certain regarding Trump’s attempt to overthrow the government on January 6, 2021, and remain in power despite his defeat in the 2020 election. Such is the reality of the Republican Party today that has aided and abetted many of his most criminal and dangerous behaviors.

MAGA Republicans, it seems, can keep multiple inconsistent ideas in their “minds” simultaneously without experiencing disabling cognitive dissonance. They can, for example, treat as “equal” situations that are plainly not “equal.” Examples of this behavior abound. They are masters of deflection: whatever Trump may have done (“who cares anyway”), someone else did something worse and was not punished so Trump should not be held accountable either. And on and on.

Interestingly, none of Trump’s most ardent supporters claim, “he didn’t do it.” Rather, they argue that he should not be punished under the law for what he did because,

            It’s a witch hunt;

            Others are more guilty of something or other;

            The investigations are “politically motivated”;

            Trump did “nothing wrong”;

            It was all antifa and Black Lives Matter

            Or it was the “deep state” out to get Trump

            Trump was framed [my personal favorite].

All very familiar Trump tropes.

Recall that Donald Trump said this: “I have an Article II where I have the right to do whatever I want as president.” And Trump thinks he is still the president.

As I have ruminated on what is happening here and why, I have, tentatively, come to some new conclusions. While I have never known anyone wholly like Trump, I have over my long life and career encountered many “successful” Type A people, almost all men, who share many characteristics with Trump.

I now believe, tentatively, that most men like Trump began their lives with various advantages that made them “successful standouts” at an early age. This phenomenon may go all the way back to grammar school, when the first genuine socialization behaviors are displayed. These are the boys who, regardless of actual talents, are always deferred to when teams are picked at recess or after school for pick-up sports. They are selected by default to pick the players they want on their side. The selection process is merciless and is repeated over and over day after day.

These same boys tend to be socially popular with both boys and girls. They exude confidence that is reinforced constantly at home and everywhere else. They are molded into dominant figures, accustomed to having their way, to being favored, to being successful in virtually everything they do. Often, they are rewarded in areas in which they do not excel because of their perceived status in other areas.

This reinforcement continues through high school and beyond. These men are the anointed “leaders” whose merit and status are rarely if ever questioned. They are, to paraphrase a line from the movie, Barry Lyndon, not the smartest, the quickest, the bravest, the most talented. They are, simply, the “best people.” And because they are so regarded, they are beyond reproach even when their behavior would otherwise warrant and even require condemnation and sanction.

Emergent from this process is a sense of self-worth, of self-regard that distorts their understanding of reality. Other men, and many women, are impressed by their self-confidence, their “authority,” that is evident in how they present themselves, independent of any objective reality as to their actual talents or worth.

The end of this process is, however, at least in my experience, almost always the same. Donald Trump is the purest manifestation of it. The hubris that develops blinds these men to the truth of their situation. They see themselves as untouchable, not subject to the same rules that govern everyone else.

How could they not? U.S. Senators and Congressmen (and now women) are fawned over, treated as special in every way, sought after socially, given power unrelated to their intelligence or actual skills. They are, after all, the “best people.” It’s just who they are. Or so they believe. American culture tends to venerate and elevate these men (mostly men).

The same is true of many “successful” businessmen. They may be dolts. They may be corrupt. Doesn’t matter. They are who they are – the winners, the top dogs. Media fawn over their every word, adding to the illusion of their superiority. These men attract money, followers, devotees – passionate supporters who need to share the penumbra of their worthiness.

Until they aren’t worthy. Until the sheen of invincibility is shattered by revelations of the lack of merit that has been concealed for so long beneath the veneer.  Examples are everywhere. Take the Cuomo brothers, Andrew and Chris. The sons of Mario Cuomo, the three-term governor of New York. https://en.wikipedia.org/wiki/Mario_Cuomo Mario Cuomo came from the humblest of circumstances – the family ran a grocery store in Queens. But he was highly intelligent and very ambitious. A powerful, dominating figure.

So too his sons. Yet, both have fallen from their pedestals, for different but related reasons. Then there is Rudy Giuliani, once called America’s Mayor for his post-9/11 “leadership.” By all accounts, he was highly intelligent and ambitious but, he too, fell from grace when he embraced Donald Trump’s brand of “truth.” https://en.wikipedia.org/wiki/Rudy_Giuliani

Consider the actor Will Smith. Highly talented and successful until he decided, and make no mistake it was a decision, to attack the Oscars’ host on live television for making a tasteless joke about his wife. Smith may recover. The Cuomo brothers and Giuliani may not.

Let’s not forget this: Trump Will Not Apologize for Calling for Death Penalty Over Central Park Five. https://www.nytimes.com/2019/06/18/nyregion/central-park-five-trump.html Presaging his views on the Charlottesville Unite the Right rally in 2017, involving alt-right, neo-Confederates, neo-fascists, white nationalists, neo-Nazis, Klansmen, and far-right “militias:  “You have people on both sides of that,” the president said when asked about the wrongly convicted defendants.”

So it goes. Over and over again. A seemingly endless progression of “great men” brought down by their own hubris – defined in dictionaries as ‘excessive pride or self-confidence.’ They come to believe they are untouchable, beyond reproach regardless of what they do. And in some sense their perception is correct, demonstrated by Trump himself in the way he has managed to not only survive but prevail, despite multiple obvious crimes, despite business mismanagement and multiple bankruptcies, and despite multiple credible allegations of sexual abuse and assault.

[to be continued in Part 2]

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.

 

Donald Trump — A Gangster in the White House

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I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

Why Is Media Not Naming the Names?

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We now have reports of a 38-page PowerPoint document laying out a plan for Trump to declare a national emergency and continue in office. That’s 38 pages, not likely something just scrabbled together by some bozo whose mind is infected with conspiracy theories. But, whatever the case there, the document, or versions of it, apparently has been circulating on the internet for a while. Where on the internet, and when and by whom, is a bit fuzzy in the media reports.

What is significant about this report is not that such a PowerPoint exists. It has been clear throughout Trump’s presidency and during the coup attempt near its end that there are around the country numerous people, many holding public office and many just out there is the woods somewhere, who believe, without rational or evidentiary basis, that the election was stolen by various fraudulent means.

No, what is important here is that the document sets out [with the same excitement as the 8th item in food recipe] that members of Congress – both senators and House representatives – received briefings based on the document two days before the January 6 insurrection! https://nyti.ms/31Hho6N

But let’s back up. The title of the New York Times article is “Jan. 6 Committee Examines PowerPoint Document Sent to Meadows.” Sufficiently bland to be easily passed over. But, in case your interest is piqued, the summary deck beneath the headline seems further calculated to prime you to think nothing all that important is going on.

Mark Meadows’s lawyer said the former White House chief of staff did not act on the document, which recommended that President Donald J. Trump declare a national emergency to keep himself in power.

Well, of course, Meadows’ lawyer said that. What else was he going to say?

If you were still interested enough to read it, the article explains that the PowerPoint contained “extreme plans to overturn the 2020 election,” the idea being to have Trump declare a national emergency that would delay certification of Biden’s win. It relied upon claims that “China and Venezuela had obtained control over the voting infrastructure in a majority of states.”

We’ve heard about those types of claims before. FOX “News” and Trump’s team of lawyers promoted such claims repeatedly, without investigation or plausible evidence, and have been sued and sanctioned by courts for filing frivolous suits based on such nonsense.

As reported in NYT, the provenance of the PowerPoint is this:

Phil Waldron, a retired Army colonel and an influential voice in the movement to challenge the election, said on Friday from a bar he owns outside Austin, Texas, that he had circulated the document — titled “Election Fraud, Foreign Interference & Options for 6 JAN” — among Mr. Trump’s allies and on Capitol Hill before the attack. Mr. Waldron said that he did not personally send the document to Mr. Meadows, but that it was possible someone on his team had passed it along to the former chief of staff.

You can almost hear the theme song from the Twilight Zone playing in the background.

The actual author is unknown but “it is similar to a 36-page document available online, and it appears to be based on the theories of Jovan Hutton Pulitzer, a Texas entrepreneur and self-described inventor who has appeared with Mr. Waldron on podcasts discussing election fraud.”

More Twilight Zone.

NYT reports further that,

On Jan. 4, members of Mr. Waldron’s team — he did not identify them — spoke to a group of senators and briefed them on the allegations of supposed election fraud contained in the PowerPoint, Mr. Waldron said. The following day, he said, he personally briefed a small group of House members; that discussion focused on baseless claims of foreign interference in the election. He said he made the document available to the lawmakers.

NYT notes that Rudy Giuliani, sometimes known on Twitter as Rudy Colludy, has cited Waldron “as a source of information for his legal campaign.” That would likely be the “legal” campaign that led to Giuliani’s law license suspension in New York.

But wait, stop the music. Where in this article are the names of the House members and Senators who received these briefings two days before the insurrection and attempted coup at the U.S. Capitol? You won’t find them.

Why not? How can the New York Times, one of the country’s most prestigious newspapers report a story saying that members of Congress were briefed by private parties seeking to overturn the presidential election two days before the coup attempt that took lives and inflicted massive damage on the Capitol and there is no reference to the names of those members of Congress and no explanation as to why they are omitted?

And note how casually the article reports that Meadows, a founder of the ludicrously named Freedom Caucus and later Chief of Staff for Trump’s White House, has told the House Select Committee that “he had turned in the cellphone he used on Jan. 6 to his service provider, and that he was withholding some 1,000 text messages connected with the device.” Given Meadows’ central role in the effort to keep Trump in office despite having lost the election, could there be a clearer case of evidence tampering? Why would Meadows turn in the cell phone he used on January 6 if not to hide evidence it might contain? No plausible explanation appears in the article.

And at the same time the article gives Meadows a pass with this: “Even though Mr. Meadows did not appear to act on the PowerPoint….” Why? Because Meadows’ lawyer said so? Really? Meadows is clean because his lawyer says he is?

This article was written by seasoned award-winning reporters. Are they really content with this treatment? Were these details in the article but removed by editors?

Almost simultaneously, the Washington Post, my hometown rag, added more shocking details to the story. https://wapo.st/3lX90Xz Waldron is reported to have said he visited the White House multiple times after the election and “spoke with President Donald Trump’s chief of staff “maybe eight to 10 times.”” He also said he “briefed several members of Congress on the eve of the Jan. 6 riot.”

But, again, no names. No mention of efforts to get the names. Why not?

The names are particularly significant because,

The PowerPoint circulated by Waldron included proposals for Vice President Mike Pence on Jan. 6 to reject electors from “states where fraud occurred” or replace them with Republican electors. It included a third proposal in which the certification of Joe Biden’s victory was to be delayed, and U.S. marshals and National Guard troops were to help “secure” and count paper ballots in key states.

In short, the document set out a plan to overthrow the legitimate government, prevent the transfer of power and install Donald Trump as de facto dictator of the United States.

 These “briefings” of members of Congress are not casual affairs. Anyone who has practiced law/politics in Washington for any length of time will confirm how difficult it is to get direct access to members of Congress and especially to a group of them. Someone inside had to be helping arrange all of this and multiple staff would have known about it. Yet, here we are, almost a year from the January 6 attack and we’re just learning that members of Congress were briefed two days beforehand.

The WAPO report goes along with the “both sides” narrative by assuring us that,

it is not clear how widely the PowerPoint was circulated or how seriously the ideas in it were considered. A lawyer for Meadows, George J. Terwilliger III, said on Friday that there was no indication that Meadows did anything with the document after receiving it by email. “We produced it [to the committee] because it was not privileged,” Terwilliger said. A Meadows spokesman, Ben Williamson, declined to comment. Waldron said he was not the person who sent the PowerPoint to Meadows.

Nevertheless, the Post report recognizes that Meadows’ efforts to disappear himself in the post-coup investigation are fading in light of these revelations and the previously reveal fact that Meadows had personally “pressed senior Justice Department leaders to investigate baseless conspiracy theories about election fraud.”

According to Waldron, Meadows sought to help his group pursue their conspiracy theories about foreign interference, quoting Meadows as, “What do you need? What would help?” Of course, the Post also reports comments from an unnamed “person familiar with the matter” purporting to exonerate Meadows from any responsibility. Despite Meadows’ critical role in the White House, he is presented as someone who just received and passed around documents without paying attention to their content. If so, Meadows is monumentally incompetent or monumentally stupid.

Then there is the Giuliani connection.

Waldron said that he and Meadows “weren’t pen pals” and that their communication was often through Trump’s personal attorney Rudolph W. Giuliani, who sometimes asked him to “explain this to Mark” over the phone.

Unsurprisingly, “Giuliani did not respond to requests for comment.”

Waldron’s explanation of events included a claim of a meeting with Trump himself (November 25) and some Pennsylvania legislators in the Oval Office. Waldron also claimed to have briefed Sen. Lindsey O. Graham (R-S.C.) “at the White House, in the chief of staff’s office, with Giuliani present.” Naturally, Graham also had nothing to say about that meeting. And Trump, of course, had no comment about the November 25 meeting.

Still, no disclosure of the attendees at the January 4 briefings. The Post did get one thing right,

The role played after the election by Waldron is another example of how the president aligned himself with a cast of fringe personalities as he worked to sabotage the U.S. democratic process

But the issue of members of Congress meeting with, and possibly conspiring with, a person like Waldron to overturn the election is a matter of the utmost national importance. The revelations in the New York Times and Washington Post articles about meetings in the days immediately leading to the attack are evidence suggesting that members of Congress knew about, likely approved of and possibly participated in the planning of the attack.

It is very hard to understand why the Times and WAPO would treat so cavalierly the issue of which members of Congress attended briefings about thoroughly debunked election fraud just two days before the deadly attack on the Capitol. These are FACTS, and the papers owe readers an explanation of why this information was so casually ignored.

Closing Note: I have been told that this post is uncomfortably close to the kinds of attacks Trump routinely levels against the mainstream media with his “fake news” trope. Not so, I say, because I am not saying the news reports are false, only that information crucial to complete reporting has been omitted without explanation. I want the media to tell the whole important truth and when it cannot find it, explain why not.

 

Trump Finally Tells the Truth

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According to fact-checkers at multiple credible sources, Donald Trump has set a world record for lies, deflections, mis-directions and related phantasmagorical utterances since he started his run for president and during his time in office. Mercifully, his time in office is about to end. Yet, in the midst of overt attempts to undermine the election, Trump has, at long last, told the truth about one thing.

During a roughly hour-long call by Trump, his Chief of Staff Mark Meadows, some of his lawyers, including Cleta Mitchell (a recent appearance) with Brad Raffensperger, the Georgia Secretary of State, and his attorneys, Trump in an endless stream of world-class whoppers, said on at least two occasions: “what a schmuck I was.”

Beyond that small victory for humanity, the rest of the call is almost beyond comprehension. I listened to the entire tape. What follows is my approximate “transcript” of the call, which, like the attack on Pearl Harbor, will live in infamy. It’s a bit herky-jerky but that reflects the nature of the “conversation.”

Throughout the call, Trump insists that “data” such as the size of his rallies in Georgia and the opinions of Republican governors from surrounding states prove beyond doubt that he won the election in Georgia by “hundreds of thousands” of votes, a “half million votes,” and 400,000 votes in his final plea for relief. Trump’s concept of truth is thus, essentially, that everyone knows if you have big rallies, you win the election. Also, if other politicians say, as Trump claims, ”there is no way” he lost Georgia, then, of course and obviously, he didn’t lose Georgia — he won it by huge margins.

On the rare occasions when they could get a word in, the representatives of Georgia contradicted every claim Trump made. The claims were the usual, most of which have been asserted in court cases that were thrown out but Trump claims the courts are against him so that doesn’t count. When Cleta Mitchell tried to chime into the conversation, Trump mostly just talked over her and said that whatever she was saying wasn’t important, because he only needed 11,780 votes to change the result and while he had “hundreds of thousands” more than he needed, he wasn’t really interested in going into all that as long as the GA officials “found” the 11, 780 he needed to be declared the winner (despite the fact that the vote count in Biden’s favor has been certified and confirmed in the Electoral College). Trump made clear he will never give up.

Trump has a very long list of “wrongs” perpetrated by the Georgia vote counters, including (1) video that the GA folks noted had been manipulated to show false results. The grievances also (2) include drop boxes that were mishandled, (3) dead people by the thousands who somehow voted, (4) “fake ballots” that were voted, (5) ballots that were shredded and are being shredded right now, (6) provisional ballots given to voters who were turned away because they allegedly had already voted but then their provisional votes weren’t counted, (7) people who moved out of state but still voted, (8) corrupt voting machines, (9) machines being removed, (10) parts of machines being removed ….

All of that either has been or will be “certified” in the near future by unnamed “experts” in Trump’s employ.

And it’s not just Georgia: “other states will be flipping to us shortly.” Some 200,000 more people voted in Pennsylvania than people voting. [That’s what I heard him say. I am not making this up]. In Michigan a “tremendous number of dead people voted.­­­­­” [These statements imply that Trump has reached out to Republican officials in other states he lost to urge them to somehow recount the votes and award him the victory]

The Georgia folks, trying very hard to maintain their composure and to be respectful to their Republican president asking them to violate the Constitution, federal law and Georgia law, noted that they simply did not agree with Trump’s claim that he won the vote in Georgia and that they had gone over his points one-by-one with the state legislature and Republican congressmen for hours.

Trump was having none of that, insisting that it was simply “not possible” he lost Georgia and that “they dropped a lot of votes in there at night.”

The Georgia people repeated that “the data you have is wrong.” “Only two dead people voted.” Cleta Mitchell, one of Trump’s lawyers, referred to a group of people with the same names as people who died but claimed they didn’t have the records they needed. Trump wasn’t interested in hearing from his lawyer; he interjected that “they stuffed the ballot boxes like nobody has ever seen before.”

The Georgia people noted, as politely as possible, that the video produced by Rudy Giuliani  to show that ballots were counted three times was “spliced and diced “by Giuliani to give a false impression of what actually occurred, that audits had been conducted and there was no evidence of ballots being input three times. When it was noted that during an absence of the vote counters, law enforcement people were present, Trump declared those people were either “incompetent or dishonest.”

Trump launched a personal attack on Stacey Abrams. Then he made the “give away” claim:  “we’ll find hundreds of thousands if you let us do it.”  More ranting followed: claims of many unsigned ballots and many forgeries in Fulton County. They’re “totally corrupt. They’re laughing at you. They cheated like nobody has ever cheated before. They are shredding ballots. The ballots are corrupt.”

Trump then asserted that there were crimes being committed and that the Georgia officials were not reporting it. “That’s a criminal offense. That’s a big risk to you and your lawyers. They’re moving machines and you’re letting them do it.” [It is a good measure of Trump’s desperation that, needing the complicity of the Georgia officials, he chose to accuse and threaten them].

Trump said they have “thousands of people who will testify they were denied right to vote because they were told they had already voted.” Trump’s ranting became louder and more forceful as it become clearer that he was going to get no joy from the Georgia authorities.

The first mention of “compromise and settlement” by a Trump attorney occurred at 53 minutes into the call. This was too late even if such an arrangement would have sufficed to cloak the discussion with privilege. [Even if these were in fact settlement talks regarding pending litigation, the solicitation of crimes of election fraud would almost certainly have defeated any claim of privilege. It’s reported Trump has sued someone over the release of the tape, but that is likely to meet the same fate as Trump’s other lawsuits (he’s 1 for 61 by my count).

As the call wound down, Trump pressed for immediate resolution, claiming the Senate run-off election was going to be affected because angry Republicans were being deterred from voting. The Georgia people reiterated that Trump’s data was wrong but indicated a willingness to sit down for talks. Trump became practically hysterical at this point, stating again that the governors in the surrounding states had said “there’s no way you lost GA.”

Meadows urged the lawyers to work out a plan to address some of the data issues, saying he can “promise you” there were more than two dead people who voted.

Trump brings up Abrams again: “I beat her.”  “What a schmuck I was.” “Let the truth come out.” “I won by at least 400,000 votes. That’s the truth.” Uh huh.

To Pardon or Not to Pardon – That Is the Question

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Just over a year ago, I posted a piece entitled Going Along to Get Along. https://bit.ly/2UCmkTi The central theme was the criminal conduct of the Trump administration for which, I naively argued, “The time has come for a reckoning.” The impeachment proceeding was imminent. While I acknowledged the likelihood that the Republicans would continue to support Trump no matter what crimes he committed, I predicted that,

Impeachment, rarely used because it is so serious, is about holding to account a lawless regime that threatens to undermine the democratic republic that was created by the Constitution. If the case is properly made, the majority of Americans will support the action.

In that small regard, I supposed I was right. Trump was massively defeated in the 2020 election by more than 5 million votes and by the same number of Electoral College votes that Trump won by in 2016.

Yet, here we are, two weeks after Election Day and Trump continues to claim that “I WON THE ELECTION!” His legal team, “led” by Rudy Giuliani [I am not making this up], has filed and lost multiple lawsuits across the country. But those suits are only in states Trump lost. Apparently, Trump’s legal team has no quarrel with the vote counting in states he won. Many of the law firms involved have withdrawn their representation. All of the lawsuits have either been dismissed outright or rendered meaningless by either the complete absence of supporting evidence or narrowed so that even if validated, the ultimate election outcome will not be affected.

Trump had previously threatened that he would not recognize the election result if he lost and, in this one respect, he has kept his word. This has brought to the forefront the question whether, once Joe Biden is inaugurated, he should pardon Trump’s commission of federal crimes. At the risk of giving away the plot too soon, I think not. No pardon. Not ever. Here’s why.

I will use as my guidepost in this argument a provocative think-piece published on Nov. 17 by Michael Conway, former counsel to the  U.S. House Judiciary Committee, entitled “Why Biden Should Pardon Trump – and We Democrats Should Want Him To.” https://nbcnews.to/3lB4NGN Mr. Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Nixon in 1974. He is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. His views are seriously presented and worthy of consideration.

The rationale offered by Mr. Conway is simply that a pardon for Trump’s multiple federal crimes is necessary if the nation is to heal from the four years of division, fear-mongering, racism, misogyny, hatred and other despicable qualities exemplified by the Trump administration and its enablers and supporters.

That is a heavy load for a pardon to carry, especially considering that, as Mr. Conway rightly recognizes, a presidential pardon would give Trump no legal protection from state crimes provable on the same facts. Conway’s argument also acknowledges that Trump is undeserving:

Trump would, of course, be one of the least deserving recipients of a federal pardon in history. His pardon could not be justified based on his innocence or his contrition because Trump is not contrite; to the contrary, he is currently endangering our democratic processes by relentlessly undermining the legitimacy of Biden’s election and thwarting a peaceful transition.

That said, the argument for a Biden pardon is based on several distinct ideas:

  • A pardon necessarily indicates an admission of guilt;
  • Exposure for prosecution under state law would continue;
  • State prosecutions would not be “laid at Biden’s doorstep;”
  • Biden can show he’s better than Trump by declining to do what Trump tried to do: use his administration to punish political adversaries [“lock her up!”]
  • American democracy would be undermined if we accept the prosecution of political opponents;
  • Declining to prosecute Trump will assuage some of the anger of Trump’s supporters who, however wrongly, believe he was cheated out of a second term;
  • Pardoning Trump will help “heal the nation” and prevent an “ongoing cycle of retribution” as political control inevitably cycles;
  • Precedent exists in President Ford’s pardon of Nixon;
  • Prosecuting Trump would enhance his martyr status among followers, add to partisanship and could “even lead to civil unrest.”

That is as strong an argument for a pardon as I can imagine. Here’s why I think it’s wrong.

  • The admission of guilt would be “by operation of law,” but Trump would continue to argue that he was unjustly punished in various ways, especially in light of (2) under which he would continue to be exposed to state prosecutions, especially in New York;
  • Avoiding the “onus” of prosecution for Biden is of low value in the scheme of things, considering the scale and gravity of Trump’s crimes; protecting the incoming president from responsibility for enforcing the law is not a good reason to pardon;
  • We already know to a certainty that “Biden is better than Trump” as a moral force and as an empathetic leader;
  • Avoiding further blows to democratic institutions is a serious point, but democracy has already been severely undermined by Trump’s conduct, as well as that of the Republicans who enabled him;
  • Protecting Trump from federal prosecution is unlikely to assuage the anger of his most ardent followers who, we have learned to our everlasting sorrow, are totally disconnected from normal emotional responses to truth/facts/reality; assuaging their “feelings” is a fool’s errand – it just won’t work;
  • True that there is precedent but for many the Nixon pardon remains, after all these years, a very sore spot indeed; there is little juice behind the precedent argument;
  • In sacrificing the “healing” opportunity, we likely do increase the risk of more partisanship and the possibility of “civil unrest,” but those risks will exist even in the face of a federal pardon if, for example, New York prosecutes Trump for state crimes;

Moreover, pardoning Trump does not achieve the intended goal of peace with the Trump family writ large. There is likely evidence, known or to be uncovered after January 20, that members of the immediate family are guilty of multiple crimes as well, including conspiracy, obstruction of justice, destruction of federal property/records, money laundering and others perhaps even worse. Trump and his followers are not going to take well to facing such charges even if the capo is pardoned.

Finally, pardoning Trump would send the signal that the more crimes you commit and the more outrageously you behave, the better your chance of a pardon. American democracy has been shaken to the core by the four years of Trump’s mal-administration. This outcome of a pardon would tell the next unprincipled demagogue that “anything goes,” because the worse you are, the greater the likelihood you’ll walk free and clear with the loot you have acquired.

I readily confess that some of my thinking about this is driven by the belief, reluctantly reached, that Trump’s acolytes among the general population (he received more than 73 million votes at last count) are not going to be satisfied regarding Trump’s treatment, regardless of the generosity accorded him, They may be forced “underground” again, where, we have learned, they subsisted and persisted all the time many of us thought we had entered the post-racial world heralded by the election (twice) of Barack Obama. But they won’t be “gone;” they won’t likely experience some profound awakening of empathy and generosity toward others; Whatever the “solution” for those people is, I am constrained to believe that a pardon of Donald Trump is simply not relevant to the factors that motivate them.

In the end, perhaps, it can be concluded that I am more a “law and order” person than Trump’s most ardent fans. I believe in the principle that a properly functioning society needs a “just system of justice” that includes the goal of deterring the highest forms of white color crime, the types of crimes committed most egregiously, and often in the open, by Trump and his family and friends. Accountability is essential to prevent demagogues from becoming the norm of our political life. One important lesson from the Trump ascendancy in American politics is that our frequently sneering disrespect for “banana republics” could very readily become an apt description of the United States if we do not insist on full accountability from our leaders.

The harshest lesson, I think, is that we are not really who we thought we were. American aspirations and reality do not mesh as we had believed. That does not mean, however, that we should reject our aspirations. On the contrary, and as Joe Biden’s election has reminded us, we can and must continue to aspire to a higher calling for our country. We have the choice to make: despair that we have fallen short or renew our commitment to making a better and more just society for all who live here. Pardoning Donald Trump will not help us do better.

This position does not mean that every last drop of retribution must be exacted. The pandemic must be the top priority. Restoration of relations with allies is also critical to our national security. And, obviously, I think, action to aggressively address climate change is essential to our survival as a functioning species. Trump and his family can stew in the uncertainty of their ultimate fate until it is appropriate to take up their crimes, a day that will come all the sooner if Trump continues his insistence that he will hold office against the will of the people, as expressed in the 2020 election. If he wants to be drug physically from the White House, that can be arranged, in which case the day of reckoning will come even sooner. That choice is, to a degree, his to make. His family should recognize that truth, at least, and urge him to stand down. Either way, he must go.

 

Trump Can’t Walk Back His Racism

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No one paying attention will likely ever forget Trump’s response to the neo-Nazis marching with torches in Charlottesville: “very fine people [pause] on both sides.” There are many older examples but the one getting the most attention today is Trump’s refusal to reject white supremacy during the first presidential debate on September 29. Pressed by the moderator and by Joe Biden, Trump first tried to deflect by asking who specifically he was being asked to condemn. Biden promptly replied, “the Proud Boys.”

Like the attack on Pearl Harbor, Trump’s response will live in infamy: “stand back and stand by.” Like many other astounding statements from Trump, it’s on video and can’t be denied. But that never stops the Republicans from finding some path to altered reality other than the obvious need to admit that their candidate is a racist and is ready to call for violence in order to stay in power. Trump’s debasement of the presidency and destruction of American democracy are now fully out in the open.

The GOP autocracy/theocracy is bending itself into pretzels trying to cope with the exposed reality that their candidate is a racist monster who represents everything antithetical to the American values Republicans are constantly harping about. Politico.com reports the story. https://politi.co/34eExdZ

Senate Republicans spent much of Wednesday pressing President Donald Trump to denounce white supremacy, with few in the GOP willing to explicitly defend his refusal to do so during Tuesday’s presidential debate.

Trump’s unsubtle dog whistle was understood by the Proud Boys and other right-wing neo-Nazi groups exactly as it was intended. Many of them tweeted, in essence, “we await your orders to attack.”

Several pathetic deflections ensued. One suggestion was that Trump didn’t understand the question, or that he “misspoke,” which is preposterous to anyone who saw the event or the video of it. Then, Trump tried to say he didn’t know who the Proud Boys are, which is a lie. He was quite clear at the time. If he wanted to escape unscathed, he could have said, “I don’t know them, but I am opposed to white supremacy in all forms at all times.” But, he didn’t.

Politico again,

In a series of interviews and public statements Wednesday, Senate Republicans pushed Trump to clarify his comments, with party leaders and the rank-and-file eager to put distance between themselves and the president’s stance.

Senate Majority Leader Mitch McConnell (R-Ky.) said that he shared the same views as Sen. Tim Scott (R-S.C.), the only black GOP senator, who urged the president to correct his comments.

The suggestion that Trump’s remark can simply be “corrected” betrays the Republican perfidy in this entire subject. To them it’s just a question of what they can get away with and if exposed, “correcting” the comments fixes everything. But it doesn’t.

There are certainly gaffes and mistakes that everyone makes. This was not one of those. Given Trump’s history, it was virtually certain to arise in the debates one way or another and it is unimaginable that Rudy Giuliani and Chris Christie, Trump’s two primary debate preparers, did not address this with him. He knew it was coming, obviously didn’t like it but, visibly squirming, he said what he meant. Rick Santorum, the ever-reliable Trump toady who remains, for no apparent reason, a CNN commentator, objected that the question was unfair because the moderator knew how much Trump hates having to criticize his political base. If Santorum understands that Trump’s base has huge racist elements, you know all you need to know.

The Trump toady-in-chief, Senate Majority Leader Mitch McConnell, certainly understood it:

…McConnell said Trump’s performance in the debate wouldn’t hurt his efforts to keep the Senate: “I don’t know of any of my colleagues who will have problems as a result of that.”

Other GOP lawmakers, such as House Minority Leader Kevin McCarthy (R-Calif.) and Sen Kelly Loeffler (R-Ga.), lately of insider trading fame, tried to deflect the criticism, arguing that Trump had said he would designate the KKK as a terrorist group. He hasn’t, of course, and we know why.

Former New Jersey Gov. Chris Christie, lately of Bridgegate fame, downplayed the alarm many had to the president’s remarks, saying on ABC’s “Good Morning America” that he “heard it differently.” Uh huh. Pressed, Christie performed the pretzel twist with the claim that he  “didn’t read it that way, but if you want to read it that way that’s your prerogative,” insisting there was “confusion on the matter.”

Apparently, the White House believe-anything-he-tells-you-even-when-it’s-obviously-false” team didn’t get the Christie memo. Per Politico,

Alyssa Farah, the White House communications director, meanwhile told Fox News that “I don’t think that there is anything to clarify” from Trump’s comments the night before.” He’s told them to stand back,” she said, pointing to the president’s efforts to tamp down violence in cities across the country.

Farah conveniently ignored the “and stand by” half of Trump’s response.

Meanwhile, over at “Fox & Friends,” co-host Brian Kilmeade, always there for Trump, was quoted saying, “Why the president didn’t just knock that out of the park, I’m not sure.”  But, of course, he is sure. Trump is a racist and ignoramus. Trump believes that ‘antifa’ is some kind of organization bent on destroying America, a view even Trump’s own Justice Department, led by Trump’s personal consigliere the Attorney General William Barr, does not accept.

House Speaker Nancy Pelosi (D-Calif.) hit the nail on the head: “I think one thing he did present was the authenticity of who he is.”

We all know, I think, that public speaking is stressful, all the more so if much is at stake. If you have looked out over a large audience with expectant, perhaps even hostile, faces, you can understand how extemporaneous responses to questions can lead to regretful misstatements.

On the other hand, when you’re a public figure who has been  prepped and practiced and are aware of past issues and challenges with statements you’ve made, it is not too high a standard to expect certain things. First and foremost is ‘truth.’ We can accept and forgive dumb remarks, factual mistakes, failed memories over details and statistics. Those things happen in extemporaneous public speaking all the time.

The “stand back and stand by” comment by the president of the United States, almost four years into his presidency, is not in that class. Trump has history on this question. As Yogi Berra famously said, “it’s déjà vu all over again.”  Trump sent a message to the worst elements of his political base that he may call upon them to violently attack either the government or elements of the electorate he considers his enemies. They got the message loud and clear.

There is no walking this back, as the politicians like to say. Some things simply can’t be unsaid. Even if, under pressure from his Republican enablers in Congress, Trump were to categorically assert that he didn’t mean what he said, it’s too little too late. Everyone now has the clearest statement of Trump’s loyalties and they are not to the Constitution he swore to uphold. His loyalties are to himself ahead of everything and everyone else. The most remarkable aspect of this is that those same enablers do not accept Trump’s own version of himself. Or, maybe they really do and just don’t care.

Either way, the election draws closer by the day. Trump’s debasement of the highest office in the land will continue unless and until he is removed, one way or the other. You know what to do.

Impeachment – Why and What?

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I recently heard that a friend of mine was confused about the impeachment process now underway in the House of Representatives. I will try here to clarify, in simple English and without legalisms, what is going on and why.

The president is currently subject to an “impeachment inquiry” started by a resolution of the House of Representatives. The “inquiry” is a fancy term for an investigation. That investigation is about the question whether the president in his dealings with Ukraine committed “treason, bribery or other high crimes or misdemeanors,” that are the criteria for impeachment in the U.S. Constitution. If impeached (by the House adopting articles of impeachment) and convicted (by the Senate finding that the asserted crimes in the articles are true), he may be removed from office. Since he is still president during this process, he cannot be indicted (according to the Department of Justice). Once removed, however, he can be indicted, tried, convicted and sent to prison for crimes committed while in office.

The investigation is being conducted through two main processes.

The first process is the gathering of evidence through testimony-under-oath by various witnesses who have been subpoenaed (ordered to appear) or have volunteered to testify. Initially, those depositions (taking testimony under oath recorded verbatim) were conducted in private sessions open to members of the three investigating committees from both parties. Despite the opportunity to be present and ask questions, Republicans have complained bitterly about what they hysterically and falsely called “secret” sessions, even to the point of storming into one of the sessions in a group, violating the security requirements that apply to the site of the depositions.

The second process is the public hearing phase, now being broadcast on many TV stations, in which the same witnesses are called to be examined in public, again by both Democrats and Republicans. Now the Republicans, including the president himself, are bitterly claiming that the hearings should not be public. In the end of their rhetoric, what the Republicans want is to shut down the impeachment process entirely. That is not going to happen.

Why, then, is this impeachment inquiry happening? The essence of it is that Donald Trump tried to use Congressionally approved funding to help Ukraine defend  against further military incursions by Russia and also the prospect of a meeting with Trump for the newly elected Ukraine president (Zelensky) to leverage Ukraine’s new leadership to announce investigations into the then-leading challenger to Trump’s re-election, Joe Biden. The immediate target of the investigation would be Biden’s son, Hunter, who was, for a period, being paid $50,000 a month to sit on the board of Burisma, a Ukrainian energy company. Republicans claim that this arrangement was part of the historic and endemic corruption that has afflicted Ukrainian political leadership for a very long time, but thus far no evidence has turned up to indicate that either Joe or Hunter Biden broke any laws.

All this is complicated by a number of details that are not central to the issue of what the president did, but they certainly illuminate his motives and explain his conduct. For one, Trump used his personal attorney, Rudy Giuliani to engage with the Ukrainians and to promote false conspiracy theories about the Biden’s and to lead a smear campaign against the sitting U.S. ambassador to Ukraine, Marie Yovanovitch. Trump eventually fired her without notice or explanation.

There are many other characters in this drama, some with long titles and long histories as diplomats in the U.S.-Ukraine relationship. Republicans have attacked many of these people because they obtained some or all of their information about Trump’s campaign against Biden through other sources. Indeed, the initial report that started all of this came from an anonymous whistleblower. The Inspector General of the Intelligence Community within the Office of the Director of National Intelligence reviewed the whistleblower’s report and found it credible and disturbing. The impeachment inquiry followed.

It is important not to be distracted by the efforts of Republicans to focus the fight on side issues, such as the identity of the whistleblower or the “hearsay” nature of some of the evidence against Trump. The most damaging evidence was direct and produced by Trump himself, in the form of a memo (not a transcript) of his call with Ukraine President Zelensky in which Trump called on Zelensky to start the investigation. There is much additional testimony from Trump appointees, like Gordon Sondland, U.S. Ambassador to the European Union, who personally participated in the leveraging of Ukraine.

The impeachment may be broadened before it’s over. One example comes from the Mueller investigation. Mueller’s final report found 10 instances of obstruction of justice by Trump and/or members of his staff and administration. These may, and in my opinion definitely should, be included in the forthcoming articles of impeachment. A second major example is playing out in the courts now – Democrats in the House are seeking  access to many of the redacted materials in the Mueller Report that may show that Trump lied to Mueller and is thus guilty of the high crime of perjury.

So, the impeachment is pretty straightforward when the Republican smoke is cleared away. Trump tried to induce Zelensky to publicly announce a Ukrainian investigation of the Biden’s to damage Joe Biden’s challenge to Trump’s re-election. The evidence on this is clear. He did it. The evidence of obstruction of justice in the Mueller Report is also clear. The House of Representatives is collecting the evidence and presenting it through public hearings. Eventually, when the hearings are completed, the House will have the opportunity to vote on “articles of impeachment.” These are like a criminal indictment. They will state the specific charges of “treason, bribery or other high crimes and misdemeanors” that the House leadership believes are the basis for impeaching the president.

If the articles are approved by a majority vote in the House prior to the 2020 election, the impeachment moves to the Republican-controlled Senate for “trial” to determine if the president is guilty of the charged offenses and, if so, what the penalty should be. This process will be controlled entirely by Republicans and, absent a massive change in positioning, Republicans will refuse to convict the president regardless of the charges and regardless of the evidence.

The question of judging Trump’s conduct in office will then move to final determination in the election of 2020.

Mueller Report Part II – Trump Guilty of Obstruction of Justice – F

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F. The Inexplicable Treatment of Trump’s Personal Attorneys & Other Enablers

Another unexplained aspect of the Report relates to Trump’s use of his personal attorneys (never identified) to communicate with Flynn and his attorneys. Trump’s personal counsel appear a number of times in the report. II MR 121-122. A fair interpretation of this evidence is that Trump used his personal attorney to try to influence Flynn’s cooperation with the SCO, first with cajoling about how Trump cared about him, then with implied threats about Trump’s presumed anger. A further fair argument can be made that Trump’s personal counsel was a knowing participant in an obstruction effort. Why is this not at least mentioned in the Report?

The Report relegates to II MR-122, n. 839 the extraordinary decision not to try to interview Trump’s personal attorneys “because of attorney-client privilege issues.” Given the active role those lawyers played in some of Trump’s obstructive acts, it is hard to understand a decision not to try to learn something from them. Attorney-client privilege does not protect an attorney who is participating in a criminal enterprise. This is known as the crime-fraud exception to the general privilege rule. If Trump’s personal counsel were actively and knowingly participating in an attempt to obstruct justice by, for example, influencing Gen. Flynn’s testimony or by attempting to unlawfully procure the firing of the Special Counsel, the privilege likely does not apply. It is, moreover, inconceivable that Trump’s attorneys acted on their own without consulting their client. We are left to speculate as to why Mueller did not pursue this seemingly fruitful source of information.

We can’t be sure, of course, whether to credit Rick Gates assertion that Paul Manafort had talked with Trump’s personal counsel and been assured that they would be “taken care of” if they did not talk to the SCO. Mueller, however, clearly believed Gates’ account of these conversations with Manafort. II MR-123 & n. 848, 850. This is a subject that could have been pursued directly with Trump’s counsel if Mueller had been more aggressive in seeking the full body of evidence rather than simply assuming that the privilege would be upheld.

One of Trump’s personal attorneys during this period was Rudy Giuliani who gave multiple interviews in which he suggested Trump might pardon Manafort, then, following the classic Trump playbook, claimed he was misunderstood and not signaling anyone. II MR-124. This was fertile ground to discover whether Trump and Giuliani had mapped out this strategy to obtain Manafort’s silence or other forms of cooperation. A good argument could be made that Trump-Giuliani had waived the attorney-client privilege when Giuliani told the Washington Post that Trump had consulted his attorneys about granting pardons to Manafort. II MR-127. Manafort had some kind of joint defense agreement with Trump and was coordinating his Mueller interviews with Trump’s attorneys. II MR-127. That fact alone warranted taking Giuliani’s testimony under oath. It is all the more compelling because Trump publicly contradicting Giuliani’s statements. II MR-128. Instead, Mueller concludes that the evidence on Trump’s personal participation in all this was inconclusive (II MR-132), an amazing conclusion in light of his decision not to press for an interview of Giuliani and/or Trump.

Mueller digs deep to find alternative explanations for Trump’s comments about the treatment of Manafort. II MR-133. In the totality of circumstances regarding Trump’s repeated litany of claims that he and others were being treated unfairly, this is astonishing, especially considering that at times Trump claimed he knew very little about what these people did for him and the campaign. Normally you can’t have it both ways but Mueller lets Trump get away with it.

Note that there are substantial redactions in this part of the Report for Harm to an Ongoing Matter, suggesting that additional investigations have been farmed out to the US Attorneys’ offices. II MR 128-130.

Trump’s personal attorneys played a further role in Cohen’s false testimony to Congress. II MR-139. A joint defense agreement existed between Cohen and Trump plus other unnamed individuals involved in the Russia investigation. II MR-139. The identity of all the other individuals is not revealed in the Report. Why is this not addressed? The president’s personal attorney played an active role in assuring Cohen that his loyalty to Trump would be rewarded. II MR-140.

Despite the fact that drafts of Cohen’s false testimony to Congress were discussed with members of the Joint Defense Agreement and that false testimony to Congress under oath is a crime, Mueller did not see the drafts because of concerns about the common interest privilege. But it is not clear who raised those concerns. This is another example of Mueller seeming to act as counsel for the defense.

Perhaps because Cohen was in almost daily contact with Trump’s personal attorney about Cohen’s Congressional testimony, Mueller, in this one case, indicates an attempt was made to interview counsel. But the counsel declined, citing “potential privilege concerns.” II MR-143. What precisely those concerns were is not explained. Nor is there any indication that the SCO aggressively pursued this obviously important testimony about an agreement to suppress truthful information being sought by Congress. Who exactly is the “President’s personal counsel” that is referred here? Is it the same person throughout? Trump hired and replaced many attorneys during this time. Why does the SCO not identify these people by name?

This is not the normal or effective way to handle privilege disputes. The privilege-claiming party should be presented with the questions and compelled to explain with specificity why each question cannot be answered even in part because of privilege. Mueller may have gone through this exercise but there is no evidence of that anywhere in the Report.

Further puzzling issues arise from Mueller’s failure to pursue Robert Costello who, in the period following the raid on Cohen’s home and office, was used as a go-between connecting Giuliani and Cohen and assuring Cohen of Trump’s continued favor. II MR-146. Costello’s offering to support secret communications between the White House and Cohen appears to have been of no concern at the SCO. One question is which personal counsel to the President was assuring Cohen that if he continued lying, Trump would protect him? Why does Mueller protect the identity of President’s personal attorney engaged in a cover-up and overt acts of witness tampering/obstruction of justice?

 Beyond that, Mueller accepts that Trump’s personal counsel was working with Cohen on false testimony to Congress but does not attribute that conduct to Trump and never goes after the counsel for aiding & abetting false testimony or giving message to Cohen that he would be protected if he stuck to the party line. Why was Mueller so reticent about these compelling facts that do not appear to be disputed? Faced with an apparent conspiracy to submit false testimony to Congress, resistance by Trump & by his personal attorney (who refused to provide his version of his conversations with Cohen who was not his client and thus not covered by any plausible claim of privilege), Mueller simply assumed he couldn’t get evidence about Trump’s discussions with his personal counsel and didn’t even try to pursue this line. II MR-154. No presumption of privilege should attach to conspiracy to commit a crime. Mueller’s unwillingness to tangle with Trump’s personal attorneys is inexplicable and unconscionable malpractice. Why was Trump’s personal attorney not charged with suborning perjury in connection with Cohen’s false testimony that Trump’s personal attorney helped facilitate?

Mueller’s approach is particularly disturbing because Trump refused to answer the written questions posed to him about the Trump Tower meeting. II MR-149. What Trump did say was that he couldn’t remember his conversations with Cohen. After Cohen pled guilty to lying to Congress about the Trump Tower meeting, Trump refused to provide any more information about his role and turned sharply against Cohen. II MR-151. Thereafter, Giuliani made public statements that conflicted with what Trump was now saying, then “walked those back.” II MR-152. Mueller seems completely bamboozled by all this, unable to make the obvious conclusions.

Trump refused to clarify what Mueller calls the “seeming discrepancy” between his statements about the Trump Tower project in Russia made before and after Cohen’s guilty plea. Mueller engages repeatedly in speculation about what Trump might have meant rather than concluding that, having declined the opportunity to set the record straight, Trump should be estopped to deny the discrepancy and to deny what Cohen said was the truth eventually.

I have asked repeatedly in these evaluations of the Mueller Report why Trump’s enablers were not indicted. Mueller addresses very briefly at II MR-158 where he leaps a giant chasm of evidence to conclude that because a few of Trump’s aides refused to carry out his blatantly obstructive orders, virtually all of them were allowed to walk away unscathed, including Trump’s personal attorneys and others who, according to undisputed evidence, did carry out Trump’s orders to try to intimidate witnesses, terminate the SCO investigation and other forms of interference detailed throughout the Report. Mueller calls the “pattern” one in which Trump’s enablers resisted his obstruction directives, but the evidence adduced shows that in most cases the White House staff did exactly what Trump wanted them to do. The “pattern” is the exact opposite of Mueller’s conclusion.

The Mueller Report ends with a lengthy, lawyerly analysis of the statutory and constitutional defenses asserted by Trump’s attorneys. The analysis is unobjectionable and supports not only the conclusions Mueller did reach but re-emphasizes the lingering questions about the conclusions he declined to reach. In particular, we are left to wonder why so few of the obvious enablers of Trump’s overt obstructive acts were not held accountable. Mueller’s treatment of “presumption of privilege” issues is inexplicable, given that much of the enabling activity was in support of federal crimes. We can only hope, though likely in vain, that Congressional hearings will flesh out the hanging questions.