Tag Archives: Jennifer Rubin

A Darkness in the Heart

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A few days ago, Rep. Carolyn Maloney, Chair of the House Committee on Oversight and Reform, releaseddocuments showing ex-President Trump’s efforts to pressure the Department of Justice (DOJ) to overturn the results of the 2020 presidential election.  https://bit.ly/35wq4uL Maloney’s release says, in part,

These documents show that President Trump tried to corrupt our nation’s chief law enforcement agency in a brazen attempt to overturn an election that he lost. Those who aided or witnessed President Trump’s unlawful actions must answer the committee’s questions about this attempted subversion of democracy.

This is not really new. Recall that on May 3, 2017, more than four long long years ago, I published, https://bit.ly/3vObOrS that included a 24-item list of indictable/impeachable offenses by Donald Trump. That was long before the March 2019 Mueller Report, laying out conclusive evidence of at least ten instances in which Trump obstructed justice. And longer still before the July 2019 phone call in which Trump threatened the President of Ukraine that he would withhold Congressionally-approved aid if Ukraine did not announce an investigation of Joe and Hunter Biden. See https://bit.ly/3vBQ7LF It was even longer before the January 6, 2021 Trump-inspired and Trump-led (“I will be there with you.”) attack on the Capitol, for which I recommended that Trump be indicted, arrested and charged with Sedition & Felony Murder. https://bit.ly/3q7iaSb

Thus, it comes as no surprise that unleashed Trump has once again committed multiple crimes. [An aside: this is not an exaggeration. I will soon be reviewing the extraordinary memoir, Where Law Ends, by Andrew Weissmann, the inside account of the Mueller investigation that reveals in horrifying detail the determination of Donald Trump to retain power and remain unaccountable to the people, including multiple crimes in office]

In a nutshell, as exposed in the released documents, here is how Trump attempted to subvert the Department of Justice in the wake of his 2020 election defeat [full details here; https://bit.ly/35wq4uL]:

Trump Sent Bogus Election Fraud Claims to Top DOJ Officials Minutes Before Announcing Their Promotions to the Top Two Spots in the Department

Trump Used Official White House Channels and a Private Attorney to Pressure DOJ to Urgently File a Supreme Court Lawsuit to Nullify the Election

      • The draft 54-page complaint demanded that the Supreme Court “declare that the Electoral College votes cast” in six states that President Trump lost “cannot be counted,” and  requested that the Court order a “special election” for president in those states.

Trump Enlisted Assistant AG Jeffrey Clark in an Attempt to Advance Election Fraud Claims; The White House Chief of Staff Pressured DOJ to Investigate Conspiracy Theories At Least Fives Times

 Examples [“Rosen” refers to then Deputy AG Jeffrey Rosen]:

      • On December 30, 2020, Mr. Meadows forwarded Mr. Rosen an email from Cleta Mitchell, a Trump advisor who later participated in a January phone call with Georgia Secretary of State Brad Raffensperger.  During that call,  President Trump reportedly asked Georgia election officials to “find” enough votes to declare him the winner of the state.  The December 30 email contained allegations of “video issues in Fulton County.”  Mr. Meadows wrote to Mr. Rosen:  “Can you have your team look into these allegations of wrongdoing.  Only the alleged fraudulent activity.”
      • Later on December 30, 2020, Mr. Meadows emailed Mr. Rosen a translation of a document from an individual in Italy claiming to have “direct knowledge” of a plot by which American electoral data was changed in Italian facilities “in coordination with senior US intelligence officials (CIA)” and loaded onto “military satellites.”  This individual claimed that the true data, as well as sources within the conservative wing of the Italian secret service, confirmed that Donald Trump was “clearly the winner” of the 2020 election.

Further nuances and details about these sorry episodes were reported in the Washington Post. https://wapo.st/3q4tP49 One element of that recital is the repetition of “no comment” and no response to inquiries from the press about the narrated events. Even those Justice Department officials who were steadfast in declining Trump’s overtures to overturn the election are apparently unwilling to address the revelations in the emails released by the Oversight Committee. And, quite expectedly, Mark Meadows and Trump himself had nothing further to say regarding their blatant attempts to overturn the election.

 What Should Happen Now

Trump and all of the people involved in attempts to suborn the Department of Justice should be indicted under 18 USC § 371,arrested and tried. It’s past time to put a stop to Trump’s campaign to undermine the central fabric of our democracy.

The US Criminal Code, 18 U.S.C. § 371, if violated when two or more persons conspire either to (a) commit any offense against the United States, or (b) defraud the United States, or any agency thereof in any manner or for any purpose. Both offenses require the traditional elements of conspiracy: an illegal agreement, criminal intent, and proof of an overt act.

In Hass v. Henkel, 216 U.S. 462 (1910) the Supreme Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

In Hammerschmidt v. United States, 265 U.S. 182 (1924), the Court elaborated:

To conspire to defraud the United States … also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

A multitude of later cases confirm the ongoing vitality of those early definitions.

Proof of conspiracy requires knowledge by the perpetrators that the statements were false. The claims made by Trump, Meadows and others acting on Trump’s behalf were not just obviously false but bordered on hallucinatory. Trump’s repeated claims that there was “no way” he lost Georgia, for example, have no plausible factual predicate and after sixty lawsuit failures, no plausible factual basis has been presented. Trump’s claims were a blatant attempt to both “interfere or obstruct legitimate Government activity” and/or to “make wrongful use of a governmental instrumentality.”

The Manual of Model Criminal Jury Instructions: 8. Offenses Under Title 18, referring to 18 USC § 371,  states,

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed….

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.…

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

A conspirator may not defend on the basis that he believed in fantasies when he made claims he knew were unjustified. In this case Trump and his henchmen tried to enlist the personnel and resources of the nation’s top law enforcement agency to accomplish what they failed to accomplish in the election, knowing to a moral certainty that their claims lacked a basis in reality. The conduct in question occurred almost two months after the election and after numerous lawsuits throughout the country failed to persuade a single judge (including some Trump himself appointed) that there was any basis for claims of election fraud that could change the result. Even Trump’s Attorney General Barr publicly rejected the fraud claims.

I am not alone in advocating strong and prompt action to stop Trump’s continuing effort to overturn the election . Jennifer Rubin suggested the following in the Washington Post on [https://wapo.st/3wz0sJM]:

    1.  criminal investigation into post-election actions in which officials were pressured to change election outcomes, including attempts at DOJ and at state officials such as Georgia Secretary of State Brad Raffensperger,
    2. create strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections, including whistleblower protections and mandatory duty to report such actions to Congress,
    3. sue to stop the bogus so-called “audits” in Arizona and elsewhere,
    4. develop federal legislation to strengthen the Electoral Count Act, such as requiring a supermajority to challenge electoral votes.

Rubin’s final recommendation is probably the most important: establish an election-monitoring program for 2022 and 2024 that will assign Justice personnel to prevent voter intimidation, measure wait times, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.  That’s the most critical because Republicans throughout the country are legislating changes in local election procedures to enable Republican-controlled legislatures and political appointees to control and even overturn election results.

Following Republicans’ uniform refusal to hold Trump accountable for any of his many crimes in office, it is now clear that the fate of the nation’s election system is under systemic attack. It is no exaggeration to say that Republicans are prepared, without compunction, to adopt totalitarian tactics to establish themselves as the permanent ruling party in American politics. They seem to believe that the majority of Americans will accept such actions in peaceful submission. That, I believe, is a fundamental misjudgment, the consequences of which are unimaginably horrible. Among many other things, the United States is no longer separated from its enemies by oceans that take weeks or months to cross. A violent civil conflict would expose the country to attacks from which it could never recover.

In any case, there is no reason to sit idly by while the Republicans attempt in plain view to subvert the Constitution and establish a Republican dictatorship under Donald Trump. Aggressive and immediate actions can prevent the unthinkable and avert more drastic measures later. Trump and his co-conspirators should be indicted forthwith. Time and opportunity are wasting.

Manchin Both Ways – Political Double Speak

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Senator Manchin of West Virginia, putative Democrat, published a statement of principles of sorts in the Charleston Gazette-Mail on June 6, 2021. https://bit.ly/3x5q9S8 In matters of this import, reasonable people will expect the ideas expressed to have been expressly approved by the senator. What, then, is the putative Democrat from West Virginia telling us?

The title of the piece tells us that Manchin is going directly in the face of everyone who is concerned about voter suppression in the United States: “Why I’m voting against the For the People Act.” Then, in a remarkable exercise in double speak, Manchin purports to explain why he thinks this is justified. To more clearly set out what Manchin is saying, along with the foreseeable consequences, I have arranged his statements in a table:

Principle                     Manchin Position                    Result                      Effect on Democracy

Right to vote critical to democracy For it Manchin looks good but …. Zero, just platitude
Right to vote is not about party or politics For it Manchin looks good but …. Zero, just platitude
Protecting that right should never be partisan For non-partisanship Good in theory but if Republicans are partisan anyway, law is defeated Negative
Elections should be fair, accessible and secure For it Good if parties agree on what is fair & secure; if not, Repubs defeat law Negative
Early voting is good For it Good if parties agree but if not, Repubs defeat early voting Negative
Party labels can’t prevent doing what is right For it Wrong; party labels often prevent doing what is right Negative
Debate about voting rights is about partisan advantage Against it Wrong; debate is abt voting rts or voter suppression Negative
Partisan policy re voting rights is anti-democratic Against it Manchin looks good but … Negative
We should get along For it Manchin looks good but … Negative
Repubs who voted to impeach Trump shoudd vote for the bill For it Manchin looks good but … Negative
Partisan voting reform will lead to more partisanship Against it Republicans should get their way so we can be non-partisan Negative
Democrats are just as bad as Republicans re filibuster Against it Republicans should get their way so we can be non-partisan Negative
Founders built checks/balances to force compromise For it Republicans should get their way, even though filibuster not in Constitution Negative
Absolute power is bad Against it If Republicans get their way, we will have solutions Negative – Republicans will defeat bill
Better way is to “find it together” For it Republicans defeat the bill Negative

Manchin goes on to argue that the Voting Rights Act was reauthorized five times with bipartisan support, overlooking that the Supreme Court, at the behest of Shelby County, Alabama, gutted the VRA in 2013, leading to immediate resumption of voter suppression laws that continues to this day. The reality is that Republicans who, with the filibuster at their disposal, control the outcome in the Senate with Manchin’s support, are dead set against the readoption of the key provisions of the VRA in any form.

Manchin’s enthusiasm about having one Republican senator supporting the John Lewis Voting Rights Advancement Act is just so much hypocritical deflection. There is zero evidence to think Lisa Murkowski’s support is going to lead Republican senators to support the legislation. It is therefore completely transparent cynicism for Manchin to declare:

I continue to engage with my Republican and Democratic colleagues about the value of the John Lewis Voting Rights Advancement Act and I am encouraged by the desire from both sides to transcend partisan politics and strengthen our democracy by protecting voting rights.

That is politician double speak for “I don’t want this legislation but I’m going to act like I do. Trust me.”

Thus, Manchin, the Republican sheep in Democrat’s clothes, concludes with his rejection of the For the People Act and rejection of efforts to end the filibuster that gives the Republicans a chokehold on the separate voting legislation, all on the blatantly false premise that “bipartisan compromise” is still possible. Manchin’s hypocrisy is transparent. The question now is: what will the Democratic Party do about this continuing roadblock to meaningful protection of voting rights in America? The Democratic Party is never going to get the cooperation of Joe Manchin who is full of platitudes about bipartisanship and cooperation when he knows full well that neither of those is going to happen in the face of trenchant Republican opposition.

We are at the crossroads now – one path leads to restoring voting rights and protecting democracy, while the other leads directly to more voter suppression and, potentially, the establishment of a dictatorship as Donald Trump has made clear he intends to pursue.

Jennifer Rubin’s opinion piece in the Washington Post yesterday has it right. https://wapo.st/3puKvkV  Manchin’s objection comes down to the fact that Republicans object. His objection, therefore, has nothing to do with bipartisanship. That is a smokescreen for the position that the Republicans should get their way, which is the way of voter suppression and not the path to restoring the highly effective processes that were in place under the Voting Rights Act of 1965. Rubin argues,

Manchin’s bland platitudes suggest he prefers stalemate to taking hard votes. The status quo leaves him with latitude to make holier-than-thou pronouncements to decry both sides.

Rubin proposes a series of specific actions to bring the Manchin play to a head. All make great sense. Democratic leadership must demand that Manchin,

(1) “come up with 10 Republicans for H.R. 4 and for a slimmed down H.R. 1” and  “four more Republicans to support the Jan. 6 commission.”

If he cannot, then his thesis that the filibuster promotes debate and makes way for compromise collapses and his role in promoting the tyranny of the minority is laid bare.

(2) spell out what reforms he would accept. Is requiring Republicans to hold the floor (i.e., demanding a talking filibuster) “weakening” the rule? …. If the filibuster is simply a means of thwarting any reasonable legislation, why is it worth preserving? What if the integrity of our democracy is at stake?”

Elevating the filibuster to the sine qua non of our constitutional system is absurd. It is not in the Constitution. It protects no constitutional principle. It does not constitute a check or balance on the other branches as, for example, a veto override or the Senate’s advise and consent power on nominees. It does not protect minority rights when it is used to thwart voting rights protection for disfavored minorities.

(3) “Democrats should compel Republicans to filibuster again and again the bills Manchin himself thinks are entirely reasonable. Bring up H.R. 4. Put the Jan. 6 commission back on the floor. After 5 or 6 of these rounds, Manchin’s bipartisan fetish may subside.”

(4) Democrats should also  “demand he present compromise legislation that has 10 Republicans. What magic formula is he aware of that has evaded others? Where are four more Republicans in addition to the six who would support the Jan. 6 commission?”

(5) “voters and voting rights activists need to confront Manchin civilly and peacefully, but with unrelenting demands for him to justify his position. An array of interest groups hurt by Republican obstruction and assaults on voting rights — e.g., organized labor, seniors, the disabled community — must turn up the heat. Most of all, Capitol Hill police and other law enforcement officials must demand passage of the Jan. 6 commission — or Manchin’s agreement to push it through with less than 60 votes. They and the widows of law enforcement personnel killed from the Jan. 6 events need to be omnipresent and unrelenting.”

The final word from Rubin, well and truly said:

The time for Manchin’s excuse-mongering is over. It is time to demonstrate his bipartisan notions are more than fantasy.