Tag Archives: Meadows

The Stench from the Bench

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The Washington Post reported recently that Supreme Court Justice Neil M. Gorsuch would join Mike Pence, Ron DeSantis, and Trump’s White House press secretary Kayleigh McEnany in speaking to the Federalist Society. They did and the media, as reported, was excluded. https://wapo.st/3 Jua6Dz  Even rev.com, the repository of many political speeches, could not acquire a transcript.

 I have it on pure speculation, good enough in a Trumpworld, that in a rare act of dexterity, Mike Pence got off his knees and stood erect at the podium during his portion of the show. One wonders how he was received given his shocking one-time decision to comply with the Constitution and the law in connection with Trump’s ongoing attempt to overturn the 2020 election by whatever means will work for him, including violence against the police.

A related question is hanging regarding DeSantis who swings between sycophantic adoration of Trump and hints that he may run against Trump in 2024. McEnany has no such problem. She’s not running for anything but the money. Her connection with the truth is so remote she could satisfy her obligations by just sending a copy of Big Little Lies to sit on the podium during Pence’s talk.

This wasn’t Gorsuch’s first such speech. He did a victory lap at the Federalist Society in November 2017 just after his confirmation to the Supreme Court. https://politi.co/3LySkRt Not surprisingly, perhaps, the only other Justice present then was Justice Alito who has spoken to the Federalists multiple times. In Gorsuch’s 2017 speech, he,

vowed to continue to expound the group’s favored judicial philosophies from his new post. “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch,” the justice vowed.

Very interestingly, neither the Supreme Court nor the Federalist Society would say whether Gorsuch was paid to appear and, if so, by whom. Why, I wonder, would they not answer that simple question if he were not going to be paid? Refusing to answer in this context is analogous to pleading the 5th Amendment.

To be fair, it is reported that “liberal justices” are also “often guests of progressive organizations such as the American Constitution Society.” Despite all of that, or because of it, the justices are making public statements defending the high court’s impartiality and integrity. Retiring Justice Stephen Breyer wrote in his book that,

“Political groups may favor a particular appointment but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

Well, maybe not “all of us.” The sordid conduct of some Justices has now reached the nadir of ethical practice. Justice Clarence Thomas, for example, has defended the court’s “independence” during a lecture at the University of Notre Dame, but failed to mention that his wife, Ginni Thomas, is an avowed right-wing sycophant and Trump lover. She has been widely reported to have played a role in the January 6 attack on the Capitol, has argued far and wide that the 2020 election was stolen, and on and on. And now, we have reports that Ms. Thomas texted multiple times with Mark Meadows, then serving as Chief of Staff to Trump, that Meadows should do everything in his power to overturn the election.

As you likely recall, Thomas was the sole dissenting vote in the case about whether Trump had to turn over documents to the January 6 Select Committee. In Thomas’s participation in that case, there was no mention of his wife’s activities and no apparent concern about the grotesque conflict of interest, or appearance thereof. He apparently thinks he has no disclosure obligations, no recusal obligations regarding participation in cases in which his spouse is actively and aggressively interested.

Something is rotten here – ‘here’ meaning ‘right here,’ not Denmark – and the stench, has only gotten worse in recent days.

Lest we forget, judicial “ethics” also did not stop conservative icon Antonin Scalia from taking trips paid for by … someone not him. Indeed, according to New York Times reporting, Justice Scalia took more than,

258 subsidized trips … from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong. [https://nyti.ms/3Dk8fPE]

A private individual provided Scalia with a free room at his ranch even though he had business before the Supreme Court. Again, according to the Times,

legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

WHAT????

All my years in private practice I fretted over conflicts of interest issues and Supreme Court justices can accept luxury hotel accommodations if they’re provided by “private individuals?!?!” No wonder “Supreme Court members took 1,009 paid trips between 2004 and 2014.” According to my calculations, that averages to 11 trips per year per Justice. And these are not trips to Bridgeport.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

The disclosure reports, such as they are, reportedly “show that the majority of the privately funded trips — by far — are sponsored by universities.” Maybe, but it’s a fair bet that on those trips, the Justices don’t stay in dorm rooms. Are we to believe the suggestion that universities paid to send Justices to Singapore, Hong Kong, Ireland, and Switzerland? I also note that universities are sometimes litigants or amicus curiae (friend of the court) in cases of major importance.

The cited Times story about all this was published almost exactly five years ago. At that time legislation was pending in Congress to “require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, like the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.” It should say “United States Judges Other Than Supreme Court Justices” because it apparently does not apply to them in any meaningful way – each of them decides for himself whether his conduct raises ethical concerns.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

“Society could benefit.” Perhaps, if that’s what the Justices always spoke about to other judges, law students and the like. Somehow, I doubt that’s what Scalia was talking about in Zurich.

Self-policing is a nice concept but fails in practice a good deal of the time. And since the Supreme Court is the top of the third branch of government, enshrined in the Constitution and the final word on the constitutionality of state and federal laws, self-policing seems a particularly inapt way of assuring fair, neutral decision-making.

The sitting Chief Justice has defended the current approach by arguing that the Justices “consult the code for lower-court judges in assessing their own ethical obligations.”  They may “consult” but are not bound to follow.” Extraordinary.

The “both sides-ing” of the ethical issues involving speeches and political leanings by Justices cannot be allowed to obscure the fundamental obligation of judicial neutrality embodied in the American Bar Association’s Model Code of Judicial Conduct [bolding is mine] set out below, along with the corresponding Code of Conduct for United States Judges.

ABA: CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Judges’ Code: Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary.

 ABA: CANON 2 
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Judges’ Code: Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

ABA: CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Judges’ Code: Canon 3

A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

ABA: CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judges’ Code: Canon 4

A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

 Judges’ Code: Canon 5

A Judge Should Refrain from Political Activity

The Judges’ Code is accompanied by a lengthy commentary on each section that only a lawyer can appreciate. Suffice to say that, in substance, the ABA Code and the Judges’ Code are essentially the same.

A commission appointed by President Biden to consider some of these issues stated in its report that “this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court. “It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said. Indeed, a masterpiece of understatement.

Ironically, I suggest without a hint of irony, Justice Alito who often speaks at the Federalist Society’s meetings, had this to say at its November 2020 convention:

Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead. When we look back at the history of the American judiciary, we can see many judges who were fearless in their dedication to principle …. [https://bit.ly/3uEG2iE]

Many, but not all, it seems. Furthering the irony, Justice Alito’s very next words were, “and one who is especially dear to the Federalist Society springs immediately to mind I’m referring to Justice Antonin Scalia.” To quote the infamous Mr. Barry, I am not making this up. I will have much more to say about J. Alito’s extraordinary speech in a future post.

Most of the comments I have read about this issue constitute the highest [lowest?] form of tiptoeing by the graveyard. The stench of politics wafting from the High Court is gag-inducing. The pussyfooting by Democrats only makes it worse: “Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements.” https://wapo.st/3DqCQLB “Exceedingly difficult?” Really?

This is the same Justice Thomas and his wife, Ginni, whose text messages to Mark Meadows, Chief of Staff to Trump urged Meadows and Trump to “stand firm” in pursuing legal strategies to overturn the election she claimed was stolen from Trump. In keeping with the circus-of-the-obvious that Washington has become, Democrats in Congress were shocked, yes, I say, shocked, and even “outraged” to learn of these messages. https://wapo.st/35r6N1C

Now some experts see problems with this sordid example of non-self-regulation:

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a professor and judicial ethics expert at Northwestern University law school.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack on the U.S. Capitol by hundreds of Trump’s supporters. “It is so stark.” [https://wapo.st/3LtMno4]

Not surprisingly to anyone with a functioning mind, “Congressional Republicans came to Clarence Thomas’s defense.” Names: Senate Minority Leader Mitch McConnell, House Minority Leader Kevin McCarthy, leading House shrieker, Jim Jordan. Icons of ethical conduct, every one. Some of them, McConnell in particular, it is said, oppose Thomas even recusing from January 6 cases. We should not be surprised since the last Republican known to believe in democratic principles appears to have died some time ago.

Experts in judicial ethics seem to be falling all over themselves to avoid speaking the dreaded words: RESIGN. The lawyerly hair splitting is disturbing because this is not a problem curable by disclosure or recusal in this case or that. The High Court may well end up deciding multiple cases arising from the January 6 attack and the conspiracies that led up to and followed it.

Even if recusal, the step short of resignation, were adopted by Thomas for those cases, the Court would be deprived of one voice and one vote in an already small group of decision-makers. The burdens on other Justice would increase and the possibility of tie-votes on crucial constitutional issues would increase. Ginni Thomas’s own words proof how tone-deaf and substance-indifferent she and her husband are: ““Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” Sure.

Just imagine:

“How was your day, honey?”

“Fine. Just the usual run-of-the-mill insurrection cases, you know, the attempts to overthrow the government. But you know we can’t talk about that, right?”

“Of course not, so let me tell you what I did today….”

More rules and self-enforcing principles of recusal do not serve the interests of the United States, which should be the only focus here. The interests and feelings of Justice Thomas and his wife are irrelevant. They brought this problem on themselves, and the country should not bear further the costs of their conduct. Thomas has already shown himself to be indifferent, at best, to the high ethically duty that should be the watchword of every Justice on the Court. Resignation is the only appropriate remedy, and it should be forthwith, before more interference with the Court’s business and more impairment of its already wounded reputation occur.

Why Is Media Not Naming the Names?

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

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

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

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

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

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

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

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

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

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

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

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

More Twilight Zone.

NYT reports further that,

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

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

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

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

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

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

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

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

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

The names are particularly significant because,

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

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

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

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

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

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

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

Then there is the Giuliani connection.

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

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

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

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

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

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

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

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

 

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.

Trump Finally Tells the Truth

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let Them Eat Cake

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Putting aside the apocryphal nature of the title phrase, it fits perfectly the current attitude of the Republican Party in the Senate where they are doing their best to mimic Ebenezer Scrooge by denying suffering workers a meaningful relief program. The situation is so bad that,

White House Chief of Staff Mark Meadows said on Sunday he was not optimistic on reaching agreement soon on a deal for the next round of legislation to provide relief to Americans hit hard by the coronavirus pandemic. [https://reut.rs/2EIOKpL]

The key problem should be the easiest to resolve:  whether to extend the $600 per week in extra federal unemployment benefits for Americans that has literally saved millions from total economic destruction. The benefit expired on July 31.

According to the Reuters report,

The Trump administration and some Senate Republicans have been pushing for a reduction in those extra federal benefits, saying they should be tied to wages. Other Senate Republicans have rejected any extension. [emphasis mine]

Treasury Secretary Mnuchin claims Trump supports the enhanced benefits but does not want people to make more when they are unemployed than they would if they had a job. Mnuchin reportedly said, ”we want to make sure there’s the right incentives.” Typically, Republican leaders are more worried about a few people getting an “undeserved benefit” than helping the overwhelming majority of people who are is increasingly desperate need of help.

Yale economists have studied the data on the alleged disincentive to work arising from unemployment benefits and concluded that “expanded jobless benefits did not reduce employment.” https://bit.ly/3gnWdIY At the risk of letting actual economics get in the way of Republican orthodoxy, the Republican Party would do itself and the country a favor if it stopped bowing down to Donald Trump’s uninformed view of work incentives for people with whom he has only enjoyed a master-servant relationship. The Republicans are focused on the wrong, and least significant aspect, of the problem.

In addition to the classically dense Republican view of economics, the most stunning element of this fiasco is that the Democrat-controlled House proposed relief legislation in May – MAY – but it has languished in the Republican-controlled Senate until last week (more than two months of no action) and Republicans remain divided on what should be in the next round.

Meanwhile, America burns while the Republicans fiddle.

It’s time to hold the Republicans’ feet to the fire they have stoked. The coronavirus rages largely out of control around the country and the economy is in a dead stall. Republicans own the disaster because they supported Donald Trump’s ignorance, incompetence and corruption. The time for political posturing is over. It’s time to act and help the people who elected this legislators and expect them to do their job.