Tag Archives: Jack Smith

That Flushing Sound You Hear

Leave a reply

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

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

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

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

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

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

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

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

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

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

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

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

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

The Deposition of Jack Smith, Special Counsel

1 Reply

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.

 

Supreme Court Sells Out to Trump in Insurrection Case

Leave a reply

Earlier today, the United States Supreme Court denied Trump’s request to stay the judgment of the DC Circuit that his claim of absolute immunity from criminal prosecution be stayed, while still taking review of the case through a procedural maneuver suggested as a fall-back by Special Counsel Jack Smith.

The Court’s schedule for briefing and argument of the case is ludicrous in light of what has gone before. The case has been briefed and argued to death in the lower courts, and thoroughly developed decisions rendered. There is no justification for a briefing and argument schedule taking the case to the week of April 22, 2024, almost two months further into the presidential election schedule.

Trump has until March 19, to file his brief, which will almost certainly be a mere reprise of arguments and citations already presented to and rejected by the DC District Court and the DC Circuit Court of Appeals. The Special Counsel is given three weeks (to respond, a period vastly longer that he is likely to require, given what has gone before, but a faster reply will not change the argument date. Oral argument will occur, if the schedule holds, a week after Trump’s reply brief.

Trump likely will find some excuse to whine about the schedule and seek to extend it.

The Court may then take weeks more, perhaps longer, to decide the case. The order is not signed and there is no indication that any justice dissented.

Unbelievable.

Humpty Dumpty Was President of U.S. 2017-2021

Leave a reply

Donald Trump, in one of his multitude of efforts through obfuscation and delay to avoid accountability for his many crimes against the nation and humanity, has stated what may be his most remarkable lie yet. In the litigation over whether he is disqualified from the Colorado ballot in 2024 due to his inciting the January 6 insurrection, Trump’s lawyers have declared that he never gave an oath to “support” the Constitution. https://tinyurl.com/3kdazbku

Here is text of the presidential swearing-in ceremony for Trump in 2017, and every other president:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Section 3 of the 14th Amendment, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Trump’s Colorado filing states:

The framers excluded the office of President from Section Three purposefully. Section Three does not apply, because the presidency is not an office ‘under the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.

From many decades of law practice in sometimes fraught circumstances, I am conscious of the pressure on lawyers to produce arguments that can strain credulity. They usually do this because they have nothing else, and the client demands they fight with anything and everything. So, they throw some legal slop at the wall and hope some of it sticks. I learned early, however, that such tactics usually do more harm than good and rarely convince experienced judges and neutral juries that an extreme position, lacking any basis in reason or precedent, should be embraced.

Here we have the former president of the United States, through his attorneys, flatly disavowing his oath of office. His lawyers are arguing, in effect, that “preserve, protect and defend” are not synonyms of “support.” In short, Trump is telling the Supreme Court,

Yes, the world saw me swear on a bible that I would preserve, protect, and defend the Constitution but that didn’t mean I support the Constitution. In fact, I don’t support the Constitution. I am opposed to the Constitution.

Now, imagine, if you can, that at his actual inauguration in 2017, Trump had placed his hand on the bible, Melania looking stricken behind him, and said to the world: “I decline to take the oath as prescribed. I don’t support the Constitution. I am opposed to the Constitution.” Imagine.

Trump’s lawyers are also arguing that the presidency is not an office “under the United States” and thus that the president is not an “officer of the United States,” as stated in the 14th Amendment, even though the president is the chief executive officer of the United States and is the repository of the “executive power” of the federal government as plainly stated in Clause 1 of Article II. By the way, this is the same Article II that Trump famously said conferred upon him the authority to “do whatever I want.” http://tinyurl.com/4jpuc2y9

The Trump position is right out of Alice in Wonderland:

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means what I choose it to mean – neither more nor less.

Alice’s retort, you may recall, was:

The question is … whether you can make words mean different things.

Trump would say, yes, of course, I’m Donald Trump and I can say ‘yes’ and mean ‘no.’ I can bow down before foreign dictators while claiming that I courageously stood up to them. I can say something with complete seriousness and later claim I was joking if people don’t like what I said. I’m like the governor in The Best Little Whorehouse in Texas who sings Side Step:

Ooh, I love to dance the little sidestep

Now they see me, now they don’t

I’ve come and gone

And ooh, I love to sweep around a wide step

Cut a little swath

And lead the people on!

Such foolishness may work in movies and childish fantasies but in the real world, Trump must be treated like an adult. He swore an oath before the world. That oath is prescribed by the Constitution. Trump may not be heard now to disavow his oath and its plain meaning. He is estopped, in the language of the law:

Estoppel is an equitable doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.[https://www.law.cornell.edu/wex/estoppel]

It is way past time that the courts brought the hammer down on Trump’s dissembling. Special Prosecutor Jack Smith has taken a major step in that direction by seeking immediate Supreme Court review of Trump’s preposterous claim that he is absolutely immune from prosecution because he was once President of the United States.

Trump’s legal strategy has always been predicated on delay, delay, and more delay. Smith, seeing the delay strategy at work again, is calling the question whether Trump can escape responsibility for his criminal conduct. Trump is asserting something akin to the divine right of kings. But there are no kings in this country. The fate of the nation hangs on the Supreme Court’s decision. The Humpty Dumpty defense must be rejected. If not, violence may result. In 1776 and again in 1787, we said, “no more kings.” It cannot be otherwise.

Closing Note:  It appears that the Judge in the DC case has stayed the proceedings until the Trump’s claim of absolute immunity for crimes committed while president is resolved by higher courts. While expedited briefing schedules have been established, it is entirely possible that the Supreme Court will deny the government’s petition for certiorari and dump the case back to the DC Circuit Court of Appeals. That court may be independently looking at Trump’s appeal anyway. Chaos reigns. More time will pass, and Trump will avoid the consequences of his preposterous legal position yet again. If so, we will move another giant step toward autocracy and the death of American democracy.

I will have more to say about this as soon as I can get through the multitude of decisions and pleadings being filed almost every day. The irony is that by committing so many crimes in so many jurisdictions, Trump has managed to create a scenario that will allow some courts to accede to his delay tactics. I will never understand why the judiciary has not taken central control of this situation rather than letting Trump’s cadre of lawyers making ludicrous arguments play the courts against each other. But that seems to be where we are.

The Presumption of Innocence

Leave a reply

With all the Republican handwringing about Trump’s multiple indictments and efforts to interfere with the administration of justice (including defunding the Special Counsel’s office – to be covered in separate post), it may be useful to consider what the “presumption of innocence” means.

Some people appear to believe that the presumption of innocence has some meaning outside the courtroom and that a person cannot be “guilty” when “presumed innocent. That belief is wrong. The presumption is a legal process concept not found as such in the Constitution but implied by the right to a fair trial. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The practical result of those words is that the accused cannot be convicted, i.e., formally found “guilty” of the alleged crimes without a trial and process that complies with the Sixth Amendment and other applicable sections of the Constitution and laws. But that does not mean that the accused is “innocent.” It means that in court, the accused enjoys the protections associated with “fair trial” at the end of which a decision of “guilt” or “innocence” will be made. It means he hasn’t been found guilty yet. This may seem like a “dancing on the head of a pin” issue, but Trump’s acolytes make much of it and the media constantly repeat it.

Being “presumed innocent” doesn’t mean you are innocent. It means you haven’t yet been found guilty by the proper process. If you are not guilty, you cannot be kept in jail pending trial unless some limited conditions are met and appropriate, evidence-based findings are made. These include being a flight risk. Or a threat to witnesses.

So, Donald Trump may be “presumed innocent” but he is not “innocent.” No one, even his most ardent sycophantic idolizers, has argued that the facts alleged in the four criminal indictments against him are untrue. Nor could they make credible arguments to that effect. Instead, they deflect and distract with unproven and unprovable claims that the various governments that charged Trump have been “weaponized” for purposes of political revenge, or to keep Trump out of the 2024 race, or Trump shouldn’t be held accountable because others for whom no meaningful evidence of criminal conduct was ever brought forward have not been charged with crimes. Or or or or something anything, look a flying squirrel, look a UFO!

Trump’s only defense is delay. On the merits, on the facts, he is dead in the water. And yes, yes, he has the legal right to ask the state courts to remove the cases to federal court [all should be denied] and the legal right to ask that trial dates be put off to 2050 [denied].

Yes, Trump has us right where we want him. American justice is painfully slow, but Trump’s standard playbook is toast. The only real question is how long this is going to take.

One other thing. Various of Trump’s political allies are trying to have Jack Smith’s Special Counsel office defunded as a means of stopping the prosecution. In Georgia, efforts are under way to impeach or otherwise halt the prosecution by Fanni Willis. I believe all of these efforts constitute obstruction of justice, and it is past time for the governments involved to say so. Republicans in Congress have no business interfering with a criminal prosecution any more than they could pass a law saying that prior conduct of a particular individual, criminal at the time, was retroactively no longer criminal. The Republican Party has lost its claim to being the party of “law and order.”

Is Trump Disqualified?

Leave a reply

The New York Times reports that:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.

https://tinyurl.com/yh38rjyd

Oh, Lordy, I wish they were right.

But are they?

The NYT article says:

The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

Upon reading that, my first thought was Groucho Marx’s infamous saying that, “I don’t want to belong to any club that will accept me as a member.” But I digress. I do not adhere to such absolutist thinking about most things, and I suspect there’s a club somewhere that I might want to join, though whether there is one that would have me is another question for another day.

Returning to my new-found idols (if and only if they’re right) in the Federalist Society, they summarize their conclusion this way:

Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.

Affirming what I and many others have been saying since at least January 6, 2021, the esteemed authors of a forthcoming law review article state there is:

“abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” ….

Abundant evidence. Yes. Unquestionably fair. Without a doubt, reasonable or otherwise.

But is saying it enough? What about innocent until proven guilty, etc. Right to a fair trial. All that.

The relevant sections of the 14thAmendment to the Constitution state:

No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The central question is, I think, whether the provision is self-executing or requires a judicial finding that the person in question has engaged in insurrection, etc. The least relevant question is whether Congress would give Trump a pass. Two-thirds of “each House” means what it says (originalists are stuck with that) and that’s not happening.

According to the Times, the article concludes that:

essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”

I’m fully down with that so far but the question remains, I think.

The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.

“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.

In an interview, apparently, Professor Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, said those administrators must act:

“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.

Therein lies the rub. Republican secretaries of state, many of whom are abjectly committed to support Trump no matter what, cannot be assumed to perform the asserted duty, no matter how forcefully that obligation is confirmed by Federalist Society professors. Some enterprising journalist should immediately put the question to each of the fifty secretaries of state, starting tomorrow. What they say will not, of course, be binding but still would be good to know their answers in fashioning a way forward.

As much as I desperately want to believe that Section 3 of the Fourteenth Amendment is self-executing, the cynics among us (me) do not believe anything so simple could possibly work in the political world Trump has handed down to our country. Lawsuits are going to be necessary, complicated, I suggest, by the fact that Special Counsel Jack Smith elected not to charge Trump with insurrection under the relevant statute:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [18 U.S. Code § 2383-enacted June 25, 1948]

Why Smith did not bring that charge has not been, and likely will never be, explained, but Trump will try to drive his denial truck through that gap and, typically, more litigation will ensue if anyone tries to disqualify him through legal action.

A final observation. I just read that Alan Dershowitz, ready to defend Trump’s criminality at every turn, has reportedly declared that the 14thAmendment applies only to “those who served the Confederacy during the Civil War.” Reported in the Daily Caller (where else?) but published only in the SmartNews app, apparently. The piece notes that the “the text does not authorize Congress—or any other body or individual—to impose the disqualification in the first place.” Further, the article claims, “It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”

That’s an odd claim for an ultra-originalist to make. That fact, moreover, undermines Dershowitz’s argument. If no mechanism for applying the law was created, the most reasonable conclusion is that Congress thought it was self-actuating. And, if it were true that the law was only to apply to ex-Confederates, it would be most reasonable to expect that the statutory text would have been explicit to that effect.

The contrary position states that

it was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision.

That argument ignores that Marbury v Madison was decided by the United States Supreme Court establishing the principle of judicial review, that the Constitution was indeed the supreme law of the land that Congress could not by itself change. While the article lists all kinds of mischief that might ensue without explicit mandates of who decides what, the reality, I suggest, is that the claimed disabilities are overcome by the fact that judicial review of all actions inconsistent with the plain intent of the statute would be available. As with many other laws in which judicial oversight is not expressly mentioned, the supremacy of federal law and the even greater supremacy of the Constitution are sufficient to warrant the conclusion that Congress did not have to established a specific enforcement mechanism for the operative sections of the Amendment. The courts were available to adjudicate any conflicting claims.

Thus, the absence of an explicit provision for judicial review does not support the speculation that the courts “might regard as a political question” the issue of whether a candidate had engaged in insurrection. No reason exists to think of that as a political question beyond the courts’ purview or that “if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.” Such imaginings are the product of an overactive ultra-originalist imagination.

Dershowitz gives himself away in the ensuing argument that,

Interpreting this post-Civil War amendment as a general provision for disqualifying candidates who some people may believeparticipated in what they regard as an insurrection or rebellion—as distinguished from a protest or even a riot—would create yet another divisive weapon in our increasingly partisan war. It would be used by Republicans against candidates who may have supported (gave “aid or comfort” to) riots such as those that followed the killing of George Floyd or other violence-provoking events. [boldface added]

The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree. Unless an amendment was clearly intended to further limit these qualifications, the voters are the ones to decide who is to be their president.

Quite clearly, Dershowitz is fine if “the voters” decide it’s acceptable to elect a criminal who tried to stop the peaceful transfer of presidential power and who has threatened violence and further insurrection if he is elected. That is not the argument of a “constitutionalist,” at least not the one that laid the foundation for the United States. No basis exists, I suggest, for interpreting the Constitution or any federal statute as permitting the overthrow of the government if a bare majority use the ballot box rather than armed revolt to accomplish it.

That said, I believe it is entirely appropriate for lawsuits to be instituted to present to the courts for adjudication the question whether January 6 was an unlawful insurrection and, if so, whether Donald Trump inspired, incited, and directed it. If yes, he’s out. Period.

Let’s get on with it. Somebody (ACLU?) sue to bar his candidacy for the presidency and let the future of our democracy be decided.

Hubris and the Junk Heap of History – Part 2

Leave a reply

Let’s review what has happened most recently.

  • 6-8-23 Trump is indicted. Finally. Thirty-seven counts. Felonies. Trump is accused of harboring hundreds of classified documents dealing with, defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.
  • Classified documents were stored in multiple unsecured locations at Mar-a-Lago;
  • On at least two occasions, Trump showed classified documents to persons not cleared to see them;
  • Trump obstructed the grand jury investigation by:
  • suggesting that his attorney falsely represent to the FBI and grand jury that Trump did not have documents called for by the grand jury subpoena;
  • directing co-defendant Waltine Nauta to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury;
  • suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;
  • providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully; and
  • causing a false certification to be submitted to the FBI and grand jury representing that all documents called for by the grand jury subpoena had been produced while knowing that, in fact, not all such documents had been produced;
  • Trump was personally involved in causing boxes containing hundreds of classified documents, to be transportedfrom the White House to The Mar-a-Lago Club;
  • Trump directed the move of some classified documents to non-secure locations at his Bedminster Club;
  • Despite public statements to the contrary, Trump was fully aware that he had not declassified the documents while he was president;
  • Trump and his co-defendant withheld key information from Trump’s attorneys regarding the location and number of document boxes at Mar-a-Lago;
  • Trump knowingly procured a false certification by one of his attorneys regarding the classified documents at Mar-a-Lago;
  • As a result, Trump was charged with:

Willful Retention of National Defense Information in violation of 18 U.S.C. § (e)

 Conspiracy to Obstruct Justice in violation of 18 U.S.C. §1512(k)

Withholding a Document or Record in violation of 18 U.S.C. §§ 1512(b)(2)(A), 2

Corruptly Concealing a Document or Record in violation of 18 U.S.C. §§ 1512(c)(l), 2

Concealing a Document in a Federal Investigation in violation of 18 U.S.C. §§ 1519, 2

Scheme to Conceal in violation of 18 U.S.C. §§ lO0l(a)(l), 2

 False Statements and Representations in violation of 18 U.S.C. §§ 1001(a)(2), 2

 All the allegations are supported by documents, testimony, photographs, and recordings.

TRUMP’S “DEFENSES” [Or “What, Are You, Nuts?]

[Warning: Do not eat or drink while reading this next part]

The willful ignorance of Republican politicians brings to mind Sam Cooke’s anthem song with the perverse (in current circumstances) title of Wonderful World:

Don’t know much about history
Don’t know much biology
Don’t know much about a science book

Don’t know much about the French I took
But I do know that I love you
And I know that if you love me, too
What a wonderful world this would be ….

One person who loves Trump is the Republican Speaker of the House, Kevin McCarthy, who just hours after the unsealing of Trump’s 37-count felony indictment threatened the U.S. Attorney General, stating that House Republicans “are not going to stand for” the criminal prosecution of the ex-president. McCarthy, in keeping with the observations above, claims Trump is being treated differently than others, even though no one in modern times has committed the treasonous acts for which the evidence against Trump is overwhelming. No one.

The Republican idea of “equal justice” is to treat Trump better than everyone else. Trump had numerous chances to get true equal treatment; all he had to do was return the documents and, if, and it’s a massive ‘if,’ he had a claim to them, pursue it through legal channels. Instead, he chose self-help and then engaged in a coverup. By grossly misstating the legal processes by which the Trump indictment was issued, McCarthy proved he is just as dishonest as Trump himself, a believer in what Kellyanne Conway, acting as counselor to Trump, cynically called “alternative facts.”

McCarthy’s sycophancy is not peculiar to him. In his usual manner of double-talking between law, politics and delusion, Alan Dershowitz produced this preposterous standard for judging Trump’s conduct: “the Richard Nixon test.”https://tinyurl.com/5y6zz4yv (Fox Business. Where else?):

“It has to be at least as strong as the case against Richard Nixon, which we will remember led not to Democrats to demand his resignation, but Republicans, his own colleagues came to him and said, this case is so strong that we can’t support you,” Dershowitz said Friday on “Mornings with Maria.” “I haven’t seen any suggestion that Republicans agree with this indictment,” the professor continued.

Translated to simple English, Dershowitz thinks the proper legal test for Trump’s document crimes is whether Republicans approve of his being indicted. Wow. How the mighty have lost their way. Dershowitz had more to say:

American citizens, Dershowitz argued, should be able to cast their votes for those candidates who align with their social, economic or foreign policy views as opposed to “who’s more criminal.”

The professor argued there “has to be equal justice” served as he pointed out Republicans will likely speed up their investigation into Hunter Biden and the Biden family foreign business dealings.

“If I were a Republican leader, what I would do is draft a potential indictment against Biden and his son based on the information that’s now available, and present that in the court of public opinion in juxtaposition with the indictment that will come down on Tuesday,” Dershowitz said, “and let the public judge.

Dershowitz apparently believes that the reality and nature of Trump’s crimes is simply irrelevant to whether he should be president again.

Dershowitz seems to have forgotten about the long history of the Trump family’s foreign entanglements, including massive infusions of cash from Saudi Arabia. But I am for “equal justice” too. If there is evidence of corruption in the Biden family that relates to the president doing his job, bring it.  So far, nothing but phantasmagorical claims based on missing or criminally indicted “witnesses.” It looks a lot like the claims of election fraud that Trump and his cronies repeatedly asserted without evidence. Republicans are the reincarnation of the Gang That Couldn’t Shoot Straight.

Meanwhile, otherwise responsible media continues to bemoan the fact that a former president is being charged. The Washington Post Editorial Board wrote on June 9 that,

No one should celebrate Thursday’s indictment of Donald Trump in a case involving classified documents improperly stored at his Mar-a-Lago estate. Something has gone deeply wrong when, in a historic first, federal prosecutors reach the point of filing criminal charges against a former and possibly future president. Yet, in this matter, the defendant appears to have left them little choice.

[https://www.washingtonpost.com/opinions/the-posts-view/]

On the contrary, all patriotic Americans should applaud the fact that “equal justice” means what it says and that one’s political status does not confer privileges to violate the law that applies to others. The Post finds the allegations against Trump “disturbing” as if they related to shoplifting a shirt at Macy’s. And USAToday continues to publish click-bait pieces like this one: Donald Trump was indicted over classified documents. Why aren’t Joe Biden and Mike Pence? https://tinyurl.com/5xv63mjh

Concerns have justifiably arisen about the bizarre fact that the Trump-appointed judge in the documents case is the same judge that was reversed in dramatic terms by the 11th Circuit for gross errors of law and bias toward Trump. Jack Smith is unlikely to tolerate much funny business from her but there are clearly risks in her overseeing a criminal trial like this, given her lack of experience and apparent lack of judgment. Time will tell.

Trump is in serious trouble as his standard stratagems of delay and obfuscation are, one by one, falling apart. He appears to be destined for trial in the Mar-a-Lago documents case and for new indictments related to the January 6 fake-electors scheme and the January 6 insurrection. These cannot come soon enough, particularly since, reports already indicate that Judge Cannon is falling all over herself to stall the case against Trump. https://tinyurl.com/yck42wbt  She should be removed from the case before it’s too late.

If fair-minded juries are chosen and the trials are fairly administered, Trump will surely be convicted of multiple felonies, along with, hopefully, many of his co-conspirators.

Trump will then go down in history – down being the correct word here – as what he is: the worst criminal ever to occupy the White House. He will join the legions of failed putative dictators and other men that fortune falsely anointed as “great men” but whose ignorance and greed undid them. Trump loves to do his form of “dance” at rallies to the YMCA song to show that he’s young, virile, and cool, but his real song should be Send in the Clowns to distract from the reality that his day of reckoning may finally, at long last, be approaching.

What Pence’s Subpoena Resistance Means

Leave a reply

Special Counsel Jack Smith has subpoenaed former Vice President Mike Pence to testify before a Grand Jury investigating attempts to overturn the 2020 election. Pence has stated he will not testify, citing the Speech & Debate Clause of the U.S. Constitution (Article I, Section 6, Clause 1). https://politi.co/3xw9GZs

That Clause states:

They [Members of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence claims that because his involvement in the coup was limited to presiding over the Congress’s final tally of electoral votes and certification of Joe Biden’s victory, he was acting in a “legislative capacity” and thus cannot be questioned.

On its face there are a multitude of problems with Pence’s position. First is that he has insisted, correctly, that his acts on January 6 were purely ministerial and that he lacked any discretion under the Constitution and laws to evaluate the validity of state vote counts or other acts leading to the election certification. His job was to open envelopes and announce their contents. This alone raises fundamental doubts about the “legislative nature” of what was intended to be protected by the Speech & Debate Clause.

Second, even if his January 6 actions were covered to some extent by the Clause, he cannot justify total refusal to be questioned about other matters arising out of the January 6 coup attempt and subsequent insurrectionist activities by Trump and others of which Pence may have knowledge. His immunity claim sweeps too broadly. In fact, it seems unlikely Special Counsel is much interested in Pence’s non-discretionary acts on January 6. Rather, the investigation more likely seeks his knowledge about actions by Donald Trump and others supporting his coup/insurrection attempt to overturn the election. As far as I am aware, Mike Pence conducted no legislative activities about any of that, other than his non-discretionary overseeing of the final electoral count tally.

Thus, Pence cannot plausibly argue that “because I performed one legislative act that day, I am immune from disclosing any information I may have about other matters related to the insurrection that day.”

To my knowledge, no one has suggested that Pence’s conduct on January 6 was questionable constitutionally or otherwise. Except Donald Trump, of course, who want berserk when Pence refused to go along with the false attack on the election.

Politico reports that Pence “feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.” Maybe, but it’s more than coincidental that, as Politico also notes, Pence’s resistance ”will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.”

I do not understand how “Trump’s months-long crusade to pressure his vice president to derail Biden’s win — which is central to Smith’s investigation — focused entirely on Pence’s [ministerial] duties as Senate president, which legal scholars say lends credence to Pence’s case.” Josh Chafetz, a Georgetown University constitutional law professor, supports the argument that Pence may be on to something by observing that “a lot of the action here took place in terms of arguments about how he should rule from the chair.”

But the “action” around this issue was generated by Trump, not by Pence, who consistently resisted the argument that he had any more authority/responsibility on January 6 than opening envelopes and announcing their contents. Such “acts,” even if judged “legislative,” were not likely what the framers had in mind in protecting the legislators from encroachment by the other two branches.

Roy Brownell, former counsel to Senate Minority Leader Mitch McConnell has suggested that “Pence … could characterize his pre-Jan. 6 conversations with Trump and others as research into how he might rule on matters related to the Electoral College.” True, Pence could try that, but the courts are not bound by claims like that. Pence was researching anything and if he had been, it would certainly not have been by asking Donald Trump whose credentials as an expert on the Constitution are less than zero.

In any event, the question here is not whether some specific aspects of Pence’s conversations were privileged – he is refusing to testify at all, arguing that there is nothing the Special Counsel could legitimately ask him about his knowledge of Trump’s attempt to overthrow the government. That, I suggest, is facially preposterous and inconsistent with extensive case law on the limitations of privilege assertions in all contexts.

As reported elsewhere by Politico,

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously rejected the South Carolina Republican’s [Senator Lindsey Graham] claim that he is constitutionally immune from such questioning. Though Graham may not be questioned about any conversations he had in support of his legislative activity, the panel ruled, prosecutors may question him about his “coordination” with the Trump campaign to arrange his calls with Georgia officials, as well as efforts to pressure those officials amid their ongoing audit of Georgia’s presidential election results.

The Supreme Court declined to intervene on Graham’s behalf.

We should also have regard for the literalist interpretation of the Constitution favored by “conservatives” and “originalists.” The Speech & Debate Clause refers expressly to “Senators and Representatives.” The Vice President is neither of those. The fact that he has limited, ministerial duties to perform in the legislative branch every four years does not make him one. He is there as the Vice President, conducting ministerial, non-discretionary acts involving no legislative work.

United Press International reports that Pence said at a campaign rally:

I’m going to fight the Biden DOJ’s subpoena for me to appear before the grand jury because I believe it’s unconstitutional, and it’s unprecedented. No vice president has ever been subject to a subpoena to testify about the president with whom they served. [https://bit.ly/3lC9Co9]

Unprecedented it may be, but no president has ever tried to overthrow the government and reinstall himself despite having lost the election. Arguing the lack of precedent just doesn’t work here.

At the end of the day, what Pence’s position comes down to is this: he is desperate to appease Trump’s loyalist political base and in fact supported Trump’s attempt to overturn the election while cleverly, but rightly, refusing to actively participate in the coup attempt. Pence wants it both ways – no responsibility for the insurrection but avoiding the appearance of attacking Trump, while simultaneously undermining Trump. He hopes Trump’s loyalists will overlook his refusal to play along on January 6 if he appears to defend Trump while not actually defending him.

Pence thinks Trump’s loyalists are a bunch of cultish dopes who will, when push time comes, choose him as Trump’s successor.

Pence is only slightly less a traitor than Trump. Special Counsel Smith is not going to fall for this nonsense and should vigorously contest Pence’s claim to immunity from subpoena by the Grand Jury.