Tag Archives: January 6

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.

 

Stefanik Admits She Would Sabotage the Constitution

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While the media have lost their minds over the gratuitous political hit job by the Special Counsel investigating President Biden’s possession of confidential government documents, the story about Elise Stefanik’s repudiation of her oath of office has all but disappeared from CNN.com where reports indicate her remark was made.

The story is that Stefanik said she would not have done what VP Pence did on January 6 – she admitted she would not have certified the election of Joe Biden. She declared this despite the fact that virtually all legal scholars worthy of the name agree that refusing to certify would have violated the Constitution.

Stefanik has thus admitted she is unfit for office. She is a fascist who places submission to the Great Leader Trump ahead of her fealty to the Constitution. Such a person cannot be trusted to honor her oath of office or to act in the public interest.

Stefanik’s rejection of the Constitution to seek the favor of Donald Trump is consistent with some other behavior related to the January 6 insurrection incited by Trump. In the moment, Stefanik posted on Twitter:

Then, Stefanik, revealing her true colors, said that the DOJ probes into those involved were “baseless witch hunt investigations.” Stefanik has also called those convicted and jailed for their actions “hostages.” http://tinyurl.com/mry7fkkc

In a typical Stefanik response, she had an advisor attack Liz Cheney for pointing out the flip-flop, accusing Cheney of “having a mental breakdown looking at archives of years old press releases.” The response was a pathetic deflection but not a response to the substance of the fact that Stefanik has changed her position 100 percent to align with Trump’s preposterous claim that the entire January 6 episode was just a peaceful demonstration by concerned citizens.

When challenged repeatedly to address her turnaround, Stefanik deflected to rant about other issues and other aspects of her speech, raving about Hunter Biden and repeating Republican talking points divorced from reality. http://tinyurl.com/49dw7dky

Stefanik has made clear she cares nothing about the truth and has no sense of responsibility to follow oaths she takes as a public official. Stefanik is an enemy of the United States, a traitor to its values as reflected in the Constitution to rejecting her obligations to the Constitution are not protected by the Speech and Debate Clause of Article I, Section 6.

The oath of office taken by Congressional representatives is clear:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

Stefanik has now rejected that oath and on that basis alone should be removed from Congress and barred from any future ballots for federal office.

Many People Are Saying …

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.. that it would be a mistake to keep Trump off the ballot, that the people should decide so he and his cult supporters will not cry ‘foul’ when he loses the election by vote counting.

Does any rational person truly believe that if Trump remains on the ballot and loses the election by vote count (with, of course, the Electoral College factored in), he will abide the result he refused to accept in 2020? Is there any plausible basis to think that his cult supporters, many of whom claim he is their God’s messenger, will just say, “oh well, we fought the good fight and lost so let’s just move on?”

Bear in mind that Trump is arguing now that because he was still President on January 6, 2021, he cannot be held criminally accountable for anything he did as President. That’s right, his brief to the U.S. Court of Appeals for the District of Columbia Circuit, to which the U.S. Supreme Court referred the immunity case, asserts Trump is absolutely immune from anything he did while President. He is arguing that everything that happened regarding the 2020 election dispute was within the broad range of presidential responsibilities and actions that are absolutely immune from any form of prosecution. If he loses in the Circuit Court, he will make that same argument to the Supreme Court, playing for time, his normal strategy when called to account for his many crimes and civil offenses.

The Supreme Court’s decision to deny certiorari to the Special Prosecutor gives Trump more chances to achieve his goal of delay. His strategy is that if he can avoid a definitive finding of criminal guilt until he wins the 2024 election, he will then pardon himself. That act will, of course, be challenged and he’ll almost certainly lose the argument, well into his presidency. At that point he will simply say: “You’ve made your decision, now try to enforce it.”

I understand the argument that his supporters will not tolerate his exclusion from the ballot in 2024 because they are morally certain he committed no crimes and even if he did, so what? The people should decide who they want for President, not the courts.

That’s a nice idea if everyone were going to play by the same rules. But the reality is that Republicans are doing everything they can to suppress Democratic votes. Trump has already convoluted his lead in the Republican nomination process to claiming certain victory in 2024. What then can be expected if he loses? Another January 6 only much worse?

I have read the Trump brief before the D.C. Circuit in which he argues that everything he did, including particularly his actions leading to and on January 6, was an “official act” of the President and thus absolutely immune from question in the courts. Only Congress, his arguments goes, can punish criminal conduct by a President and only by impeachment. If found “not guilty” in impeachment, a certainty in any Senate with even a large minority of compliant Republicans, his argument is that it would represent Double Jeopardy to try that President for crimes in the courts.

I believe Trump is wrong yet again for several simple but fundamental reasons:

  • Trump’s “concerns” about the validity of the election had no factual basis, as proven by losing 60+ lawsuits;
  • Attempts to overturn the results by pressuring local election officials and submitting slates of bogus electors are not plausibly “official acts” within the responsibility of a president;
  • Impeachment is not a criminal procedure even if crimes are at the heart of the allegations; it is a political procedure, as conclusively evidenced by the process followed in Trump’s specific case (refusal to call witnesses, being just one example) and by the Constitutionally-limited penalty that could be applied if a guilty outcome were determined; therefore, Double Jeopardy does not attach to an impeachment,

Let’s examine that.

First, Trump argues, “The indictment alleges five types of conduct, all of which constitute quintessential Presidential acts.” The Trump brief lists those acts as:

(1) “tweets and other public statements about the outcome of the 2020 federal election, contending that the election was tainted by fraud and irregularities;”

(2) “Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice about investigating election crimes and possibly appointing a new Acting Attorney General;”

(3) “Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities;”

(4) “Trump communicated with the Vice President, in his legislative capacity as President of the Senate, and attempted to communicate with other members of Congress in order to urge them to exercise their official duties with respect to the certification of the federal election according to President Trump’s view of the national interest;” and

(5) “other individuals organized slates of alternate electors from seven States to provide a justification for the Vice President to exercise his official duties in the manner urged by President Trump.”

Those are fantasy versions of what actually transpired.

In reality, the indictment of Trump charges a different state of facts:

  • Conspiracy to Defraud the United States— “using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government;”

Trump “spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and [Trump] knew that they were false.”

“The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

“The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”

“The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.”

  • Conspiracy to Obstruct an Official Proceeding— “to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote;”
  • Obstruction of, and Attempt to Obstruct, an Official Proceeding— “that is, the certification of the electoral vote;”
  • Conspiracy Against Rights— “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.”

I will spare you the rest of the extensive details in the indictment. It comprises 45 pages of specific allegations of conduct, not just “speech” or “communications,” engaged in by Trump and his co-conspirators to overturn the election based on false and illegal allegations for which no evidence existed, and which had been rejected in some 60 lawsuits filed on Trump’s behalf.

The contention that the indictment is just about some tweets and some random communications about election fraud that were plainly “official acts” of the President acting as President is preposterous and false.

The Trump brief claims that “the text of the Constitution, through the Impeachment Judgment Clause, presupposes criminal immunity. That Clause dictates that a President may be criminally charged only if he is the “Party convicted” in an impeachment trial.” That Clause says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Bear in mind that Trump simultaneously makes the argument that Impeachment is a criminal proceeding and thus once tried for asserted crimes and acquitted, Double Jeopardy attaches, and the President cannot be criminally prosecuted for those same crimes.

And so, ipse dixit, according to Trump, he gets a complete pass on his attempts to overturn the 2020 election. For the initiated, ipse dixit means: “He himself said it; a bare assertion resting on the authority of an individual.” http://tinyurl.com/yc3pdcrm In other words, Trump said it, so it’s true.

Fortunately for the country, that’s not how things work. It is elementary that in conspiracy, which is what Trump is charged with in three of the four indictment counts, these elements must be satisfied:

    • Two or more persons
    • intentionally make an agreement
    • to violate federal law or defraud the United states, and
    • commit some overt act in furtherance of the agreement.

The indictment charges and explains in gruesome detail the unlawful conspiracies in which Trump and others engaged to overturn the election result that Trump knowingly and falsely claimed had been stolen through fraud.

To take but one example (Georgia), Trump didn’t just “communicate” with “state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities,” as claimed in his brief. No, he pressed them repeatedly to “find” enough votes to overturn the result of the election based on false claims of stolen votes. He was aided in all his efforts by others with whom he had reached an understanding (agreement) that they would continue fighting the election outcome regardless of the evidence (the facts). He continued doing this up to and through January 6, 2021.

Trump’s claim that his statements and conduct clearly fall within the “‘outer perimeter’ of [the President’s] official responsibility” is preposterous on its face. The brief effectively concedes that point in multiple places where it argues that “When the President “acts[s] in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear tan that [his] acts are only politically examinable.” Trump Brief at 29.

Similarly, Trump’s claim that “Because the Constitution specifies that only “the Party convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and Punishment,” … it presupposes that a President who is not convicted may not be subject to criminal prosecution,” citing as authority, naturally, the writings of Antonin Scalia offering this quote: “When a car dealer promises a low financing rate to ‘purchases with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.” Trump Brief at 26-27.

Trump’s argument might have some force if the impeachment process had the attributes of a criminal trial, but it doesn’t, as plainly demonstrated by the way in which his impeachment for his conduct before, on and after January 6 was handled.

Trump’s brief repeats the claim many times that his conduct covered by the indictment consisted entirely of “official acts”, but the brief nowhere explains how efforts to overturn an election based on false claims constitute “official acts” of the President. He doesn’t explain it because he can’t. The argument is ridiculous.

The same is true of the other major elements of Trump’s arguments, such as that.

The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a President for official acts—despite ample motive and opportunity to do so, over centuries—implies that the power does not exist.

That argument assumes the answer in the question: were Trump’s conspiracies “official acts?” Nowhere does the Trump brief establish or make a serious effort to establish that they were.

Calling Trump’s effort to subvert the election “core political speech and advocacy” does not make it so. Trump once said, ““I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose voters.” Trump would likely argue that shooting the particular person was “speech” in defense of his presidency. This example illustrates the danger of granting unlimited immunity to someone who recognizes no legal, moral, or other limitations on his entitlements.

Trump further claims that the law under which he was indicted “dramatically stretches the language of vague criminal statutes in novel interpretations in an attempt to criminalize core political speech and advocacy.” And, he argues, this problem is compounded by the fact that “Criminal prosecution … requires only a single enterprising prosecutor and a compliant grand jury drawn from a tiny sector of America.”

He is wrong because in both cases EVIDENCE is required. Trump didn’t hesitate to seek the rulings of the judicial system when he believed that allegations alone could overturn the results of the presidential election in key states. When he lost 60 cases, he decided it was ok to turn to extra-judicial means to achieve his goal of remaining in office. There is nothing vague about criminal conspiracy statutes under which he is charged, and he’ll have a full opportunity, like every other American, to defend himself in court.

Piling one false premise on another does not improve his argument. His brief claims there were “widespread reports of election fraud” that he was entitled to address, but those reports were by people working in concert with Trump and he knew the claims were false.

The brief’s attempt to show that his “communications” with state election officials (Georgia comes to mind) were merely “taking steps to ensure the integrity of federal elections, such as communicating with state officials who play a critical role in administering those federal elections.” The tapes of his attempts to persuade George Secretary of State Raffensperger to change the vote count there make a laughingstock of this argument.

Even more absurd is Trump’s claim that “communicating with Members of Congress, including the Vice President in his capacity as President of the Senate, about their exercise of their official duties lies at the core of Presidential responsibility.” That’s now what Trump did. He demanded, repeatedly and in multiple venues and contrary to advice from multiple credible advisors, that the Vice President reject electoral votes lawfully and properly certified by the states. To argue that “organizing contingent slates of electors to support the President’s advocacy to the Vice President and Congress is likewise an official act” is preposterous on its face.

Trump’s claim that Double Jeopardy attaches to his acquittal in the second impeachment also fails because, among other things, the impeachment was not for the “same offense.” The fact that the Constitution expressly limits the punishment that can be imposed for a guilty finding conclusively demonstrates that the impeachment was not a criminal proceeding under a criminal statute. A subsequent prosecution would be required to impose the criminal penalties, according to the express wording of the impeachment clause.

The Circuit Court should make short work of Trump’s ludicrous arguments and send the case back where it will ultimately be decided anyway: the United States Supreme Court where we will learn, once and for all, whether this Court is still tethered to the Constitution or whether it has become, as many of us believe, a political arm of the Republican Party. This case should settle any doubts about that and then, the fate of democracy in America will be determined.

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Note for the New Year: the peril to our democracy grows with each passing day. If you believe the posts in this blog have any value, feel free to share links to them with your own social media networks.

The January 6 Video Tapes

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Republicans are having hysterical conniption fits about the thousands of hours of January 6 security tapes recently released. They seem to have three main claims:

    1. The FBI infiltrated the mob that desecrated the Capitol [https://tinyurl.com/56ydb6hf], and
    2. The Capitol Police welcomed the mob and facilitated their entry into the Capitol, and
    3. The Capitol Police and others defending the Capitol were mean to the desecrators attacking them – they “beat them” bigly, according to, among others, Donald Trump

I have a few observations to offer those Republicans.

First, regarding the FBI, if it’s true that there were many FBI agents on the scene, wonderful. That means they expected trouble and when it came, they were on the scene doing their job. Now, to be sure, I don’t know whether the tapes actually establish that FBI agents were in the mob, or how the tapes could possibly do so, but the FBI certainly should have been there. The claim is there were at least 200, but all of this appears to be based on an unverified suspicion, without evidence, that FBI agents sent “ghost buses” full of agents dressed as Trump supporters, that the FBI “infiltrated” websites, social media accounts, and online chat groups “related to people who discussed “objections to COVID oppression.” Further, again without evidence,

when you track the text threads and the communications within those groups, and find the origins of suggestions of potential violence or an act of occupation of the Capitol on January 6, you’ll find that those messages were led by members of the groups and ended up to be the FBI agents that had infiltrated the group.

These are the ravings of Rep. Clay Higgins (R-La.) in a private “news” site under the name, American Military News, reporting on an interview Higgins gave to Newsmax, a cable news outlet so far right it fell off the flat earth. They ignore entirely the speech Trump gave on January 6 and his thoroughly documented refusal to call off the mob and stop the violence. Many of the convicted desecrators testified they believed they were simply answering the call and direction of their leader, Donald Trump, whose every word they believed.

Second, the Day of Rage video from the New York Times (https://tinyurl.com/242urbtu) and many others make clear that the attack started at the outer perimeter of the Capitol, that the mob attacked and overwhelmed the under-staffed and under-prepared Capitol Police before they approached, entered and desecrated the Capitol building.

Third, there are indications of Capitol Police, in most cases individuals facing massive numbers of violent intruders, failing to fight the mob inside the building. To the extent those officers failed to do their duty, they should be appropriately disciplined. But it’s likely that they decided resistance at that point was futile and that a more passive approach might be more effective than fighting a losing battle against an overwhelming and angry mob. This issue has, I believe, been addressed within the force, as it should be. It is no excuse for the behavior of the mob. The Republican claim amounts to, “the attack was the police’s fault because they didn’t fight back hard enough.”

Fourth, every member of the mob had the option at almost any time to turn around and walk away. The excuse of “I was swept up in the passion of the moment” is a child’s excuse. Any thinking adult could have seen the obvious: the mob was out of control, violence was occurring everywhere, police were being attacked (“support the Blue? Sure, but not today). Note also the conflict between “the Capitol Police welcomed the intruders” and “the Capitol Police violently beat the intruders.” I have commented before on the ability of Republicans to believe as simultaneously true two inconsistent concepts.

Fifth, the Republican hysteria fails to account for the role of the Proud Boys and other right-wing groups, many of whom were armed (Trump knew this and was furious that his instruction to remove the security apparatus to keep armed people away from his speech stage) and the massive evidence of what actually happened on January 6.

Sixth, and finally, the multitude of convictions resulting from trials and guilty pleas by mob participants so far (“More than 1,202 defendants have been charged in nearly all 50 states and the District of Columbia”), are conclusive evidence that many violent crimes were committed by the mob. You can see the latest data here: https://tinyurl.com/yry4jn2t

So, Republicans, you can continue whining about how the big bad police beat up on your band of fools or you could try, just once, facing reality. Trump incited an insurrection to overturn the 2020 election. Those who attacked the Capitol on his behalf deserve everything that is happening to them. And Trump belongs in prison. The End.

The Fork in the Road to Democracy or Dictatorship

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

― Alexander Hamilton, The Federalist Papers

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

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

Reaching Deeper Into the Bottom of the GOP Barrel

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The latest nominee for Speaker of the (barely) Republican-controlled House of Representatives is James Michael (Mike) Johnson, “representing” the 4th District of Louisiana. His official website touts the “7 Core Principles of Conservatism,” the customary blather about the “rule of law,” “free markets,” “limited government,” etc.

Last on the list is “Human Dignity:”

Because all men are created equal and in the image of God, every human life has inestimable dignity and value, and every person should be measured only by the content of their character. A just government protects life, honors marriage and family as the primary institutions of a healthy society, and embraces the vital cultural influences of religion and morality. Public policy should always encourage education and emphasize the virtue of hard work as a pathway out of poverty, while public assistance programs should be reserved only for those who are truly in need. In American, everyone who plays by the rules should get a fair shot. By preserving these ideals, we will maintain the goodness of America that has been the secret to our greatness.

Let’s unpack some of that.

For starters, note that Johnson conveniently picks up the “all men are created equal” from the Declaration of Independence but then, in a classic Republican head-fake, translates “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” into “in the image of God.” You will see below why this slight-of-hand is central to who Johnson is.

Here’s what Mike Johnson really stands for:

  • Opposed to abortion access.
  • Opposed to medical marijuana.
  • Opposed to same-sex marriage.
  • Falsely claimed Trump had fully cooperated with the Mueller investigation.
  • Opposed to certification of the 2020 election.
  • Voted to overturn 2020 election result in Pennsylvania.
  • Voted against establishing the national commission to investigate the January 6 attack on the US Capitol.
  • Supported Trump’s 2017 Muslim ban.
  • Supports ending military aid to Ukraine so it can be absorbed by Russia.

[Wikipedia: https://tinyurl.com/3m38bmsx]

So much for the “rule of law” and the “inalienable right” to the “pursuit of happiness.”

Johnson is a religious zealot who appears to lack a basic understanding of the principle of separation of church and state while claiming devotion to the rule of law and the Constitution.

This is the man the GOP now has focused its attention on to elect as Speaker of the House, next in line behind the Vice President to succeed to the powers of the presidency.

 

What Are the Chances …

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that Donald Trump will comply with the Protective Order issued by Judge Chutkan in the January 6 case?

Near zero, I think. And his lawyers will be falling all over themselves to explain away or justify his violations when they are called before the judge, as they surely will be, to determine whether Trump should be held in contempt and, if so, what penalties should be imposed.

Trump will, I believe, continue attacking the judge, the justice system, the law, and anything else he believes will get attention in the media (who will duly report every outrage) and prepare his cultish supporters for what he hopes will be their next move, namely, a violent challenge to the law and order across the country. Trump likely believes that short of fleeing to a non-extradition country he may be out of options that his usual tactics of delay and obfuscation have achieved in the past. There is no reason to doubt that the carefully constructed evidentiary case against Trump for the January 6 insurrection will be persuasive beyond a reasonable doubt to any jury that fairly assesses it.

Trump’s trump card (sorry) is to force the judge to the edge of considering having him incarcerated, without his phone, pending trial. This prospect arises because no monetary penalty alone will suffice to control his behavior as long as he has free access, as he has in the past, to donated funds from his PACs and his rich benefactors. Money is literally no object to him in this circumstance.

Trump’s winning game therefore is to force the judge to order his arrest and detention, which will prevent him from campaigning, and thus drive his army of fanatical worshippers over the edge and into violent resistance. That is the true meaning of Trump’s social media post, ‘If you go after me, I’m coming after you.’

The judge has some alternatives, but none are going to suffice if Trump is determined not to be silenced. The judge could, for example, impose further restrictions on Trump’s access to the discovery materials that normally must be turned over by the prosecution to assist the defendant in preparing a defense. That approach hands Trump an additional claim that he was denied the opportunity for a fair trial because he could not participate fully in preparation of his defense.

The Protective Order issued by Judge Chutkan is not mysterious. It authorizes the Prosecution to designate various discovery documents as “Sensitive Materials” and imposes tight restrictions on their use [“defendant” replaced with “Trump”]:

Except as provided in this Order, without prior notice to the United States and authorization from the court, no Sensitive Materials, or information contained therein, may be disclosed to any person other than Trump, defense counsel, persons employed to assist the defense, or the person to whom the sensitive information solely and directly pertains and that person’s counsel….

… defense counsel may not allow Trump to write down any personally identifying information as identified in Federal Rule of Criminal Procedure 49.1 that is contained in the Sensitive Materials.

Of particular note:

…during any time that Trump reviews Sensitive Materials outside of defense counsel’s presence, Trump must not have access to any device capable of photocopying, recording, or otherwise replicating the Sensitive Materials, including a smart cellular device.

The trial judge has thus clamped the jaws of good order and justice tightly to send a clear message to Trump about what will be tolerated. That, of course, is a challenge Trump is unlikely to take lightly no matter how many assurances his lawyers offer up that he will comply.

Never forget that Trump has declared that “I have an Article II, where I have to the right to do whatever I want as president,” and he thinks he is still the president. People like Trump are unable to recognize that they have brought on themselves the troubles they face, by, in his case, and for example only, removing and mishandling top secret documents from the White House that he has claimed “are mine” and that he declassified just by thinking about declassifying them. He uses his abuses and law violations as a badge of victimization with which his cultish supporters sympathize because they see themselves also as victims. He hates and fears the same people they hate and fear, thus producing the perfect symbiosis.

Trump remorselessly directed his followers to attack the Capitol on January 6 to stop the transfer of executive power from him to Joe Biden. The whole world watched the attack on TV and has sense seen endless film of the assault in brutal detail, all the while Trump resisting calls from within and outside of his administration to call off the attack. Trump dug his own grave on this one, along with the Mar-a-Lago documents case, and has no one to blame but himself. He will, however, always true to his nature, almost certainly try to force the court’s hand because, well, that’s what he does.

The Hunter Biden Circus – Bring in the Clowns

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Disclaimer: Since my earliest days as a lawyer, when I was assigned a few times by judges in the District of Columbia to perform pro bono (free) defense services for indigent criminal defendants, I am not, and have never been, a criminal defense attorney. But I do know a few things. Believe. Or not.

The circus surrounding the charges against Hunter Biden has its roots in the fact that he is the President’s son and Republicans are desperate to undermine the President who appears, for the present, destined to obliterate the criminal traitor Donald Trump on whom the Republican Party has pinned its hopes for 2024. Otherwise, Hunter Biden’s alcohol and drug-fueled misbehavior would be just another relatively small and unimportant criminal case against a person who, sadly and despite having all the advantages of being the son of a prominent politician, could not control himself. Addiction will do that. A Nobel Prize awaits the person who figures out how addiction works and how its deadly work can be derailed. But until then, it’s clear that the interest in the Hunter Biden case stems from one source.

Hunter Biden has been under investigation for years when the Trump administration was in charge and Trump’s personal lackeys were in charge of the Department of Justice, the FBI and more. In the ordinary boring course of such investigations, absent the connection to Joe Biden, the charges brought would most likely resemble those in the present case and a plea bargain would have emerged. Something went terribly wrong in Hunter Biden’s case and there is plenty of blame and reason for suspicion to go around.

Reports indicate that “whistleblowers” who formerly worked at DOJ have claimed their attempts to tie Hunter to the President were stymied. Yet, the man in charge of the process at DOJ says otherwise. He, like the judge assigned to Hunter Biden’s case, was appointed by Donald Trump (odd how that keeps happening). US Attorney David Weiss led the entire investigation and has been clear that there were no restraints on him from any source.

Little clarity surrounds the “restraints” claimed by the “whistleblowers” who arguably are carrying water for Rep. Jim Jordan and other MAGA Republicans whose main goal is not “justice for Hunter Biden” but pinning a corruption charge on President Biden. David Weiss has offered to testify before Jordan’s House committee but only in public and not behind closed doors as, curiously, the Republicans desire. Jordan’s approach would, of course, enable Republicans to make irrefutable claims about Weiss’s testimony, a ploy that he, despite presumed loyalty to Trump, is wise to.

The other major and possibly unique circumstance surrounding the plea deal and sentencing hearing is that the MAGA Republicans filed their own brief on Hunter Biden’s sentencing, urging the judge to reject it. And she did. Not, ostensibly, because of the claims of political interference by Biden loyalists at DOJ, but because of a serious oddity: an asserted concern raised by the judge on her own initiative, ostensibly, about the constitutionality of the plea deal’s secondary issue: Hunter Biden’s purchase of a gun when, as an admitted drug addict, he was forbidden from doing so.

Then, under probing from the judge about possible other charges against Hunter for illegal foreign lobbying under the Foreign Agents Registration Act, it was revealed that the Biden defense team and the prosecutors had different understandings of Hunter’s future exposure to such charges. And that, ladies and gentlemen, is the remarkable, astounding fact that is apparently at the root of the plea deal’s rejection, at least for now, by the judge.

If the judge’s questioning was motivated only by her appropriate interest is assuring that the parties had a complete meeting of the minds on the plea agreement, without regard to the political pressure brought to bear by the Republican Congressmen calling for rejection, the judge cannot be faulted. On the other hand, she is a Trump appointee and the issue of possible unconstitutionality of the plea deal as structured seems a bit of a stretch. We’ll likely never know.

I am personally very troubled, deeply, at the idea that a Congressional committee of partisan politicians injected itself into a criminal proceeding. I would be equally troubled if a committee of Democrats intervened in a criminal proceeding involving a Republican. We’ll never know what influenced the judge who reportedly said she had not digested the entire brief from the Congressional committee but signaled her intention to consider it.

One report characterized the judge’s concerns this way:

Noreika expressed frustration that the two sides structured the tax and gun plea deals in a way where she would need to approve the gun deal but had no powers to approve or reject the tax agreement.

The diversion agreement – which isn’t often submitted to a judge – has a provision that says if there is a dispute over whether Hunter Biden breached the terms of the deal, it would go to the judge for fact-finding. Noreika questioned why it would “plop” her in the middle of a deal she didn’t have a say in, and potentially block the Justice Department from bringing charges, a function of the executive branch.

[https://www.cnn.com/2023/07/26/politics/takeaways-hunter-biden-plea-hearing/index.html] I don’t understand the judge’s attributed remark that she had no say in the deal when the deal was before her for acceptance or rejection.

Beyond the judge, however, it is clear to me that one of counsel’s most important functions in a case like this is to suss out every possible issue that could come up, every possible thing that could do awry. This is as true of the prosecutor as it is of the defense counsel. Here, apparently, both failed in this critical responsibility. They made a deal that was incomplete, and the omitted factor was, I believe, obvious. A plea deal is a settlement and a central issue in every settlement is the question of its completeness. Does it resolve all issues? In civil settlements, it is typical to include the broadest possible language showing that all issues between the parties arising out of the dispute are resolved. No less is this to be expected in a criminal plea bargain.

Yet, in Hunter Biden’s case, the parties did not, apparently, consider the issue of future charges for other offenses even though the potential of such charges was known to and should have been obvious to both sides.

The end result is that there is no end result. Hunter Biden ended up pleading “not guilty” to the current charges while the judge considers her options. Presumably, the defense and prosecution will reconvene to negotiate further. Time will tell.

So, who was responsible for this mess? I don’t know and decline to speculate. As with the charges that appear to be imminent against Donald Trump and his many co-conspirators for the January 6 insurrection, the false electors gambit and the fully documented attempts to overturn the election in Georgia, we will have to remain patient for a while longer. Serious and expert observers of this case share your, and my, amazement that this issue was not resolved before the plea hearing. https://www.rawstory.com/hunter-biden-2662485694/

A final observation: one issue that has been raised in the press is whether the agreed charges against Hunter Biden are inappropriately “light” given the offenses involved. One’s views of this question are most heavily influenced by one’s political partisanship. I caution only this: plea deals are just that. Each side assesses the strengths and weaknesses of its case, and each side gives something to achieve settlement.

Sentencing is inherently difficult and often results in terms that seem sharply disparate. The most prominent examples lately are the various impositions on January 6 insurrectionists who were found guilty, by trial or plea in the face of overwhelming evidence. There are many reasons for this. If you are really interested in how this happens, read Noise, by behavioral economist Daniel Kahneman (Nobel Prize-winning author of Thinking, Fast and Slow), Olivier Sibony and Cass Sunstein where the variability of judgments by judges, doctors and others is analyzed in shocking detail.

The Answer is Blowin’ in the Wind

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Those of you close to my generation will recognize that phrase as part of the refrain from Bob Dylan’s famous song that became a 1960s anthem against oppression and war. The song was made broadly famous by Peter, Paul & Mary, singing it here in 1966: https://bit.ly/3J6WK2w Joan Baez, among others, sang it in 1967: https://bit.ly/3SHSEB8

The lyrics to that song came immediately to mind when I read the report that the Department of Justice has, at long last, rejected Trump’s claims to be above the law. DOJ filed a brief arguing that Donald Trump’s claims of “absolute immunity” from civil suits must be limited at least regarding the January 6 abomination he sent to descrate the Capitol  https://bit.ly/3moh3jm

You know the story: Trump summoned the mob to DC and incited them to attack the Capitol to stop the final certification of Joe Biden’s electoral victory. True, he mentioned in passing that they should be peaceful, but that was classic Trump. Say one thing, then the opposite again and again. He also said, for example, “if you don’t fight like hell, you’re not going to have a country anymore.” His message was received loud and clear as evidenced by what the mob did. One of the many remarkable videos was produced by the New York Times, showing exactly what happened: Day of Ragehttps://nyti.ms/3mlhISw Many of those later arrested have testified under oath that they understood Trump had invited them to Washington and urged them to do just what they did.

Those revelations can come as no surprise to anyone with a fully functioning mind. Recall that Trump famously said, “I have Article II where I have the right to do whatever I want as president.” It’s on tape. He said it. He believed it. Still does. Often wrong, but never in doubt.

As recounted in the USAToday story, a group of House Democrats filed two civil suits and two Capitol police officers filed the third one. USAToday reports that Trump’s lawyers have argued to the Court of Appeals for the District of Columbia Circuit that, “The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? … The answer is undoubtedly, yes.”

The Department of Justice rejected that position: “The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit.’”

Let’s briefly examine the “absolute immunity” claim. Let’s pretend you’re in law school. You adopt Trump’s position that he was addressing the election results, a “matter of public concern” and thus just “doing the job of the president.” He should, you contend, be immune from vexatious and meddlesome civil suits [law students love to talk like that] that could interfere with his ability to carry out his many constitutional responsibilities.

Having adopted the role of professor of law, I hook my thumbs in my vest [law profs love vested suits, or did back in the day], frown, pace a bit, spin, and face you: “That sounds pretty good, doesn’t it? Don’t we have to protect the nation’s chief executive and chief law enforcement officer from being hauled into court every time he says something that someone doesn’t like? Isn’t it true that someone always objects to virtually everything the president, any president, says?”

You smirk at having been recognized as oh-so-clever as to receive that rare law school commodity: praise from a professor. You are sure the other students are burning with envy at your achievement and recognition.

Then I, thumbs out of the vest now, lean forward closer to you, and you start to get a queasy feeling. I glare into your eyes and ask, “but suppose the president’s January 6 speech included this statement:

…and if you meet resistance from police at the Capitol, just knock them down, beat the hell out of them. Anybody gets in your way, kill them. I don’t care, but get the job done. Safe our country! Save meeee!

President still immune? Suppose Trump further said, “Mike Pence, the vice president I mistakenly chose to elevate from well-earned obscurity, failed to do his job. He needs to be set straight. Punished if he won’t do what needs to be done. If he refuses to comply, I say, Hang Mike Pence! Repeat after me, Hang Mike Pence! Hang Mike Pence!”

You spend the rest of class looking at your shoes, wondering why you didn’t just get a job.

You think back to Trump’s penchant for lying and making outrageous claims, then, when called out for it, saying, “oh, that? I was just joking.” On January 6, his followers knew he wasn’t joking. They understood exactly why he summoned them and what he wanted them to do.

The claim of “absolute immunity” is utterly implausible in a country with a democratic republican Constitution that sets up a three-part balance of power structure in which each of the three main branches acts as a check on the other two. It makes for complex problems and many troublesome questions, to be sure. Democracy is “messy,” according to a popular formulation. But one thing is clear: no man is above the law.  A president who incites violence in an effort to interfere with constitutionally mandated processes designed for the peaceful transfer of power must be held accountable by those directly harmed by his conduct.

Now, to return to our law school conceit for a bit longer, some will argue that the proper method for holding the president accountable is impeachment and nothing more. Impeachment certainly would work … if it worked. But Trump was impeached twice and not convicted because the Republican members of Congress refused to hear all the evidence, refused even to hear witnesses, and announced they would support him even before the “trial” occurred. Republicans thus made that constitutional process a sham.

It follows that the inherently political process of impeachment is not sufficient to hold a president accountable for inciting violence that harms not only the democratic system but individual citizens as well. Therefore, there must be another remedy.

To paraphrase Trump, if you don’t hold a president accountable for inciting insurrection, you’re not going to have a country anymore.

Now to conclude today’s lesson, let’s look at the broader implications of the position taken by the Justice Department. Despite what I’ve said above, I have little hope that the courts are going to agree with the Department of Justice. I am especially doubtful that the 6-Justice conservative majority on the Supreme Court, where the case is inevitably headed, is going to hold the president accountable as DOJ has proposed.

However, many observers, the writer included, have repeatedly expressed frustration that the Attorney General was going to let Trump skate despite his many crimes. While this set of civil cases is a far cry from a criminal indictment, the position taken by Justice signals that even its relatively conservative approach to “presidential law” has its limits. It may also signify that the Special Counsel appointed to independently investigate Trump’s many crimes has more juice behind his mandate than first appeared. Hope that it is so because our survival as a democratic republic depends on it. The answer, my friends, is blowin’ in the wind.

 [Pedagogical Note: in law school, the professor rarely jumped from one proposition you thought was right to the death blow to your sense of self-worth. Instead, they usually proceeded in small steps, slowly sucking the life out of what you thought was the intellectually plausible content of your thoughts, then delivering the coup de grace at the end. I have collapsed the dialogue in the interest of time and space. It was always worse.]

Trump’s Documents – Trump’s Crimes

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

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

There Was No Election Fraud in 2020

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

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

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

Eastman’s Plan to Overturn the Election

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

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

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

But,

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

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

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

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

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

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

 Refusal to Produce Documents to January 6 Select Committee

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

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

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

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

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

Trump Committed Crimes

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

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

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

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

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

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

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

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

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

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

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

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

The illegality of the plan was obvious.

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

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

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

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

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

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

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

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

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

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

Finally,

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

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