Tag Archives: Trump

Prosecution of Donald Trump

People in media and elsewhere are falling all over themselves to influence the public’s understanding of Donald Trump’s guilt for multiple crimes while in office and thereafter. The nature of these “explanations” for the “difficulties” of convicting Trump have shifted somewhat. At first, there were the “defenses” suggested around whether Trump was legally responsible for inciting the January 6 attack on the Capitol. You know, the First Amendment that he was just engaged in protected “political speech.” That argument has pretty much dissolved in the face of overwhelming evidence developed by the January 6 Select Committee and other sources noting, correctly, that speech that is part of a criminal conspiracy, for example, is not protected “freedom of speech.”

We now have Republicans with credentials suggesting there are major difficulties in the path of Attorney General Garland’s struggle whether to indict the former president. In a Sunday New York Times “Guest Essay,” entitled “Prosecute Trump? Put Yourself in Merrick Garland’s Shoes,” Jack Goldsmith argues that the AG has three difficult decisions to make.

Mr. Goldsmith’s credentials are imposing. He served in the George W. Bush administration as an assistant attorney general, office of legal counsel, and as special counsel to the general counsel (??) of the Department of Defense.  He is a Harvard law professor and a senior fellow at the Hoover Institution (yes, that Hoover), and a co-author of “After Trump: Reconstructing the Presidency.”

To his credit, Goldsmith admits up front that Trump’s claim of election fraud was false. He also admits that, faced with multiple failures to secure his objective, Trump “riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.”

To mitigate this problematic situation, Goldsmith says Garland must first decide who should decide whether to indict Trump. He argues that DOJ likely has a conflict of interest because Garland’s “boss,” President Biden, is a likely opponent of Trump in the 2024 election. Thus, if another condition is met (Garland believes appointment of a special prosecutor is “in the public interest”), the AG must appoint a special counsel (another Mueller) to investigate Trump and decide the indictment issue. He goes so far as to note that “some people” believe that a quasi-independent special counsel should be a Republican (and you thought my reference to Mueller was just historical; remember who we’re talking about here).

After more back-and-forth, and like a good law professor, Goldsmith concludes this issue with the observation that “Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70-30.” I think that means Garland could decide that Garland should decide.

This is where things get really hinky. The second major decision, Goldsmith says with a straight face, is whether Garland,

has adequate evidence to indict Mr. Trump… The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” [emphasis added]

These issues, Goldsmith says, “will be hard conclusions for Mr. Garland to reach.”

To that, I say, C’mon, man. Be serious.

Goldsmith’s argument is that the evidence developed by the January 6 Select Committee is too “one-sided” and that,

Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.

Putting aside the position of the freshly corrupted Supreme Court (the Thomas scandal, questions about who paid Kavanagh’s debts, etc.), the rest of these issues, while certain to be raised, pose no serious threat to a well-crafted evidentiary case that overwhelmingly, just on what we now know, demonstrates Trump’s guilt on multiple federal counts. See, for example, the Brookings Institution’s report, Trump on Trial. See prior post, https://shiningseausa.com/2022/06/20/trump-crimes-report-marked-up/ And that does not include the nine remaining counts of obstruction of justice that Mueller uncovered but felt he was blocked by DOJ policy on indicting a sitting president.

Undeterred, Goldsmith suggests Trump has potential defenses in the argument that “he lacked criminal intent because he truly believed that massive voter fraud had taken place” and “his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive.” I don’t know whether to laugh or cry.

Goldsmith can call these arguments “legally powerful claims” all he wants, but the weight of reality is simply too great here. More on the “intent” issue in a bit.

Goldstein then says the third issue, in his reckoning the most difficult, is: “whether the national interest would be served by prosecuting Mr. Trump.”

He rightly says this is “a judgment call about the nature, and fate, of our democracy.”

A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.

And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.

Along the way, the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.

Mr. Goldstein is a master of both-sides-ing. But the effort fails in my judgment because:

  • It is not the Attorney General’s job to promote national political reconciliation. His job is to prosecute serious violations of federal law. There are none more serious than the attempts to overthrow the government, subvert the election and declare Trump the winner even though he lost.
  • Confidence in the justice system, already threatened by partisanship and conflicts of interest on the Supreme Court, cannot be promoted by letting a public criminal walk free just because he was president.
  • Republicans have already made clear that, if they gain enough political power, they will pursue policies of retribution wholly independent of substantive merit. If Trump has a role in that, it should be from prison.
  • The people who will see Trump as a victim of politicized justice are the same people who deny Biden’s election victory. In the grand tabulations involved here, they are entitled to zero deference.
  • Justice Department norms of independence and integrity, undermined by Trump, can only be restored by indicting and trying Trump, not by pretending none of this happened.
  • If the Department of Justice won’t stand up for our democracy, we will, as Ben Franklin suggested, lose our republic.

I noted above that I would return to the issue of “intent” that many observers have claimed is the centerpiece of the legal defenses Trump would raise. See “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges.” https://nyti.ms/3xKwrZ9 The authors of these ideas continue to suggest that Trump’s “intent,” his “corrupt state of mind, or not,” is a real issue and challenge for any prosecution.

Given what we already know, these concerns about Trump’s intentions border on preposterous. The repetition of them seems designed to prime the public mind to believe something that, like the Big Lie, is quite unbelievable because of, you know, the facts.

The New York Times piece recites Trump’s “arguments” based on a 12-page statement he issued last week, a statement the article described as,

· “rambling”

· “usual mix of outlandish claims, hyperbole and outright falsehoods”

· “unfounded”

· “obvious problems of credibility”

But also,

On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available. What happened at the Capitol on Jan. 6, 2021, Mr. Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”

If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal. [emphasis added]

As a potential defense, the tactic suggested by Mr. Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold on to power rather than to address some broader perceived vulnerability in the election system.

But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.

What? The article emphasizes that Donald Trump is a dishonest and remorseless serial liar while simultaneously saying this complicates prosecution of him? This bizarre position is apparently based on the views of Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor:

“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Mr. Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring. “The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes.”

Another authority, Samuel W. Buell, a law professor at Duke University and former federal prosecutor, said:

any criminal case against Mr. Trump would have to start with establishing that he had been aware that what he was doing was improper. “You need to show that he knew what he was doing was wrongful and had no legal basis,” he said. “I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”

If that is the standard, it has been met many times over. No rational juror could find otherwise based on the evidence presented during the January 6 hearings.

I recognize, of course, the article’s point that, “The House committee’s hearings are not a trial. The panel is free to be selective in what testimony it employs to build a case against Mr. Trump, and the former president has no allies on the committee who can question witnesses or provide information helpful to him.”

Consider for a moment who might be Trump’s “witnesses” to rebut the allegedly selective, but entirely consistent and multiply attested to, evidence presented by the January 6 Select Committee: Rudy Giuliani, Lin Wood, John Eastman, Jenna Ellis, Sidney Powell, and others similar. Most of them have either had their law licenses suspended, are subject to disciplinary proceedings or pleaded the Fifth Amendment 100 times when testifying to the January 6 Committee.

Against that “evidence,” would be the testimony of the former Attorney General (Barr), a Trump loyalist, and numerous other highly credentialed people who had investigated the fraud claims and advised Trump there was no evidence to support his claims. Also, Greg Jacob, VP Pence’s chief counsel. And many many others.

Unless we are going to follow a rule of law that says a person’s intent is measured entirely by whatever phantasmagorical imaginings they choose to adopt, which is not the law [unless they want to argue that Trump is insane, in which case, he gets committed 😎😃], Trump’s corrupt state of mind can readily be proven beyond a reasonable doubt.

The fact, if it is one, that he wanted to believe something else, something that was false, cannot be accepted as a defense any more than we would accept the excuse that the driver causing a fatal accident was blind drunk at the time. Every one of Trump’s responsible advisors told him, some many times, that there was no credible evidence of voter fraud that could change the result. He continued to declare that he won “by a landslide.”

It is beyond astonishing that credence is being given to the idea that because Trump was a serial liar, it may be harder to prove his guilt:

Expert advice is often enough to show a jury what a defendant knew, lawyers said. But that may be more difficult with Mr. Trump because he has such a long history of disregarding experts and his own aides, they said. Given the challenge of showing what Mr. Trump actually knew, there is one other way prosecutors could show he had a corrupt intent: proving what is often called “willful blindness.

Nonsense. The prosecution may choose to jump through all those hoops, but it should be more than sufficient to prove that Trump’s credible advisors told him his claims were false, but he persisted with the Big Lie anyway. A properly instructed jury could rationally and easily find Trump guilty on that basis. The suggestion that the prosecutors must somehow plumb the depths of Trump’s “mind” to determine and prove his subjective intent in fact is unnecessary and impossible. His behavior tells you what his mind was thinking. Trump has never cared about the truth and has always used his large resources and willing accomplices to avoid being held accountable. In this case his public conduct and the disclosed facts are more than sufficient to convict.

I recognize, however, there is the “what if we indict, try and lose” school of thought. The answer is, I suggest, straightforward. There are no guarantees when it comes to criminal prosecution. But we’re talking about the fate of the country here. This is no time for timidity. If DOJ’s leadership is too afraid of the possibility, however remote, of defeat, it should be replaced forthwith by people of more courage and determination.

I am at a loss as to why the media and many lawyers continue to treat Trump like a grammar school-aged toddler who still believes in Santa Claus and the Tooth Fairy. I understand that there are people, more than we would care to think, who genuinely believe that the Earth is flat, that aliens walk among us, that Q is real and on and on. But those “beliefs” would not be effective defenses to, say, a charge of bank robbery: “Well, your Honor and members of the jury, it’s true I robbed the bank, but I did it only because an alien visited me and said his group needed the money to buy a spaceship for return to their home planet. Many people want the aliens to leave so I was justified. You must find me innocent.”

Enough with this nonsense. Indict him, try him, and convict him.

 

The Root of All Evil

A Biblical quotation worked its way into the popular vernacular a long time ago: the love of money is the root of all evil. The quote is often abbreviated to “money is the root of all evil.”  I have no idea whether the attribution to Apostle Paul is correct, but I also don’t care. I don’t believe either version of it is true.

The love of money, like the love of many other things, both physical and otherwise, can certainly lead to problematic outcomes. But the opposite of love can equally lead to problematic outcomes. There are just too many problematic outcomes to assign all the blame on love of money or just on money. When I think about this, I am reminded of the wonderful Robert Frost poem, Fire and Ice:

Some say the world will end in fire,

Some say in ice.

From what I’ve tasted of desire

I hold with those who favor fire.

But if it had to perish twice,

I think I know enough of hate

To say that for destruction ice

Is also great

And would suffice.

In my view, ignorance is the real root of all evil. Donald Trump once said, “I love the poorly educated!” He knew something that had apparently escaped the notice of even experienced political analysts. It’s not that the “poorly educated” are unintelligent. Many of them are quite intelligent and can perform many tasks effectively. They can be successful in many lines of commerce and in life generally.

On the other hand, the “poorly educated” may be susceptible to believing misinformation/false information because they have not been exposed to the discipline of education and have not undertaken to study on their own. But they are not alone in that, so being poorly educated is neither explanation nor excuse, despite Trump’s claimed admiration for them. During the height of the pandemic, we saw nurses and doctors embrace conspiracy theories, promote quack remedies for COVID and resist vaccination. And many members of Congress who support insane conspiracy theories and engage in traitorous and illegal activities are highly educated.

The problem is more complicated than the simple explanation that the “poorly educated” mistakenly thought Trump as president would be good for them. In trying to understand this, I have read numerous books, articles, theories, and studies. Most recently I discovered Strangers in Their Own Land, by Arlie Russell Hochschild, professor emeritum of sociology at the University of California, Berkeley, and the author of many notable books. The book was a 2016 Finalist for the National Book Award. This work is based on her personal research conducted in post-Katrina, post-Deepwater Horizon coastal Louisiana. The date of publication, 2016, was just before Trump was elected president and all that ensued. The book nevertheless seems wholly predictive of everything that followed.

Hochschild defined her mission at the outset as an effort to explore feelings, the “emotion in politics.” Strangers at 15. Some of those feelings were disturbing – she notes that “reminders of the racial divide were everywhere.” Strangers at 20. She did not draw much on that fact of coastal Louisiana life but indirectly seemed to acknowledge its abiding and broad influence on political life there.

Strangers focuses on what Hochschild calls the Great Paradox, stated roughly as the massive disconnect between the economic and life interests of the local people and their devotion to the Tea Party which was in full flower in the period covered. The locals were adamantly opposed to regulation, especially federal regulation, that might help restore the opportunity to continue the livelihoods they had pursued for generations in fishing/hunting/farming the abundant natural resources of coastal Louisiana.

One of the Tea Party’s darlings was Bobby Jindal. As Hochschild notes at the end of the book, Louisiana was left a “shambles” after eight years of Tea Party-style leadership by Governor Jindal. Yet his support among locals never waned. They bought into the capitalism mythology completely. Such devotion also led to support for Republican congressman David Vitter who opposed all federal environmental intervention, voted to terminate the Environmental Protection Agency and more. Strangers at 48.

The author said she was struck by what political candidates avoided in their pitches to voters: “that the state ranks 49th out of 50 on an index of human development, that Louisiana is the second poorest state, that 44 percent of its budget comes from the federal government – the Great Paradox.” Strangers at 59. People with little to begin with worried more about what others were getting (“non-working, non-deserving people”) than about destruction of the environment or years lost to bad health conditions.  Somehow this was seen as a loss of “honor” and that was more important than more tangible issues. Strangers at 60-61.

They knew that Big Oil and Big Chemical had undeniably wrecked the local environment, but they adhered to the mythology that the companies also brought jobs and other economic benefits that could not be secured under any form of regulation. They concluded that the honorable thing was to muddle through, accepting their fate while continuing to assert their” principles.”

Hochschild notes three paths by which Tea Party believers arrived at their profound dislike for the federal government:

their religious faith (the government curtailed the church, they felt),

hatred of taxes (which they saw as too high and too progressive), and

the government’s impact on their loss of honor …. [Strangers at 35]

They bought into the belief that taxes went to lazy welfare cheats and “government workers in cushy jobs.” Id. They thought climate change was bogus science. They resented what they perceived to be bias against the “little guy,” meaning mainly the little white guy, and interference with the role of God in overseeing humanity. Strangers at 52. Those are easy myths for resentful people to embrace without having to make the effort to understand complex systems and ideas. Indeed, for many, the outcome was in the hands of their God and humans thus had little responsibility for outcomes.

In portents of things to come, Hochschild notes that at the Republican Women of Southwest Louisiana meeting,

I heard a great deal about freedom in the sense of freedom to – to talk on your cellphone as you drove a car, to pick up a drive-in daiquiri with straw on the side, to walk about with a loaded gun. But there was almost no talk about freedom from such things as gun violence, car accidents, or toxic pollution. [Strangers at 71]

The perplexing reality is that people living with more pollution are more likely to believe in less regulation and more likely to be Republicans. Strangers at 79. This mental orientation set them up for manipulation and exploitation.

The initial tip to the problem of the book’s analysis comes at the beginning. Hochschild observes that the reason for population shifts in the United States had changed: people moved less to find better jobs, housing or (she didn’t mention this) education but rather to align more closely with people of similar political views. The sharpening of political division is, she says, attributable to the ‘right moving right.’ Strangers at 6-7. She recounts the dire economic conditions afflicting the southern states, Louisiana being among the worst of the worst:

Given such an array of challenges, one might expect people to welcome federal help. In truth, a very large proportion of the yearly budgets of red states – in the case of Louisiana, 44 percent – do come from federal funds. $2,400 is given by the federal government per Louisianan per year.

But Mike S_____ doesn’t welcome that federal money and doubts the science of climate change. “I’ll worry about global warming in fifty years,” he says. Mike loves his state, and he loves the outdoor life. But instead of looking to government, like others in the Tea Party, he turns to the free market. [Strangers at 9]

He turns to the same “free market” exploited by Big Oil and others to wreak havoc on the state that Mike purported to love so much. Thus, again, the Great Paradox.

The other major theme in the book is the Deep Story, the myths by which social groups, or tribes, are developed and sustained. Strangers at 135. Here perhaps is the core principle at work. In coastal Louisiana the Tea Party promoted, and locals accepted, the idea that undeserving people were cutting into the line ahead of hard-working “true Americans.” While their perceptions of race are complex, older whites interviewed by Hochschild saw Blacks especially as a problematic class afflicted by special issues not shared by most white people.

Economic class distinctions tracked race and distinguished between “makers” and “takers,” with the latter being the “line-cutters” supported by the federal government, those people unfairly getting ahead of everyone else. This grievance was at the root of many white Louisianans’ attitudes unrelated to the reality of local social and economic standing. Strangers at Ch. 9, and at 157-159.

Despite noting the data showing that “the higher the exposure to environmental pollution the less worried the individual was about it” [Strangers at 253], Hochschild concludes that the continuation of the Great Paradox is not the result of ignorance. [Id.] But that view is remarkable because it’s not supported by most of the data cited in the book. One of dozens of examples is the belief that 40 percent of all U.S. workers are employed by the federal government. The actual figure at the time was 1.9 percent. Strangers at 161.

Such ignorance of economic reality was at the root of many local people’s vigorous resistance to all forms of regulation. Such interventions could have helped to restore the balance of nature and, along with it, the jobs and environment they claimed to cherish. Yet, by and large, they wanted none of it. Hochschild was aware of this because data in Appendix C to the book was often interspersed in the text to illustrate how the real facts refuted the central myths on which the resistance depended. Peoples’ explanations of their views were rife with classical political myths and massively wrong factual beliefs.

Locals that Hochschild interviewed appeared to believe that a woman’s role was to be completely subordinate to her husband. Strangers at 174. This attitude is consistent with the analysis of “what makes a Republican” in George Lakoff’s 1996 Moral Politics that, controversially, applies principles of cognitive science to politics. As summarized in Wikipedia:

Lakoff argues that the differences in opinions between liberals and conservatives follow from the fact that they subscribe with different strength to two different central metaphors about the relationship of the state to its citizens. Both, he claims, see governance through metaphors of the family.

Conspiratorial thinking was also rampant among Hochschild’s subjects. Few people believed science had made the case for global warming. Strangers at e.g., 183. They did not understand what the lives of the seriously poor were like, rejected much historical truth, adopted phantasmagorical solutions dependent upon the “free market” and adopted what has come to be known more recently as “replacement theory.” Strangers at Ch. 14.

In the end, it seemed to me that the author was profoundly fooled by the mannered façade she experienced in her research with the locals whose “good-hearted acceptance” of her, their “great personal warmth and famous Southern hospitality,” misled her to conclude that

in human terms, the [empathy] wall can easily come down. And issue by issue, there is possibility for practical cooperation. [Strangers at 233]

There is nothing in the buildup to the end of the book or in the data set out throughout it that would support such a conclusion. And, of course, the history under Trump’s presidency is the most profound refutation of the “we can all just get along” thesis. The author’s starry-eyed belief in future harmony and progress was, I believe, a grievous error by a researcher whose approach to her study was primarily based on just talking with locals, eating meals with them, and looking at the surrounding conditions that determine their lives and livelihoods.

The book confirms my suspicions in its treatment of the rise of Trump as a political power.

Three elements had come together. Since 1980, virtually all those I talked with felt on shaky economic ground, a fact that made them brace at the very idea of “redistribution.” The also felt culturally marginalized: their views about abortion, gay marriage, gender roles, race, guns, and the Confederate flag all were held up to ridicule in the national media as backward. And they felt part of a demographic decline; “there are fewer and fewer white Christians like us….”        [Strangers at 221]

Economically, culturally, demographically, politically, you are suddenly a stranger in your own land. The whole context of Louisiana – its companies, its government, its church and media – reinforces that deep story. [Strangersat 222]

Trump, consciously or otherwise, fed this sense of disaffection and loss.

His supporters have been in mourning for a lost way of life Many have become discouraged, others depressed. They yearn to feel pride but instead have felt shame. Their land no longer feels their own. Joined together with others like themselves, they now feel hopeful, joyous, elated … in a state of rapture… no longer strangers in their own land. [Strangers at 225]

Rapture indeed. This degree of magical thinking is beyond imagining: a Pew Research Center 2010 study reported that “41 percent of all Americans believe the Second Coming “probably” or “definitely” will happen by the year 2050.” Strangers at 125. Hochschild labels them “victims without a language of victimhood.” Strangers at 131, a missing element that Donald Trump readily supplied.

My overall conclusion about this book is that the people it discusses suffer from a central fatal flaw: they mistakenly believed that the land belonged to them in the sense that the whole of it was their natural right. Anything that challenged that idea was alien, undermining their sense of “our land.” This, I think, is about as un-American a concept as you will find. It ignores history, economic reality, and the nature of democracy. The root concept that “this land is ours then, now and always,” meaning us God-fearing white people who have an entitlement that others are unjustly trying to steal, fundamentally misunderstands the nature of the country, its origins, and its development.

This issue may be connected to education, but I suspect it’s much deeper than that. The possessory and superiority components of these cultural beliefs leave these people vulnerable to the “it’s ok to hate” message from a demagogue like Donald Trump who lacks any core value system of principles except greed. These people have less to fear from interlopers than from their own ignorance.

The problem, however, is that someone so ignorant is usually unaware of his ignorance and simply feels put upon by the forces of change. He just wants what he thought he had before, notwithstanding that the oil-based economy was a complete fraud on coastal Louisiana society, wrecking the environment while failing to deliver the economic benefits that locals were sure existed. It’s also often true that the ignorant are unwilling to learn; they lack empathy and see others’ gains mainly as their losses.

I don’t want to be told I’m a bad person if I don’t feel sorry for that [sick African child on TV with Christiane Amanpour]” Strangers at 128.

But even those who fancy ourselves as “not ignorant” are capable of delusional thinking. I have confessed multiple times to having fundamentally misunderstood the degree of disfunction in the country. I thought the election of Barack Obama was a sign that, overall, the country had changed. That was wrong.

The essential proof is that despite his record of lies, incompetence and corruption, Trump received 74 million votes in 2020. Joe Biden received many more, of course, but the thinnest of margins remains in both houses of Congress. People with short term concerns about things like inflation, and no or limited understanding of its causes, may drive the country back into an abyss from which democracy may not re-emerge. It can happen here. Only the voters can prevent it.

I heard recently from a reliable source that many young people, in their 20’s and 30’s, may not feel they are much affected by what is happening in politics. That absence of perceived impact often makes them indifferent to the outcome of critical issues. If that is true, we are in even more trouble than I imagined.

Republicans are highly motivated by their grievances and can be expected to turn out in large numbers in the 2022 mid-terms. If Democrats stay home, it’s game over. You have been warned.

Is Twitter the Next Republican Echo Chamber?

Social media are awash in problematic and near hysterical responses to the announcement that Elon Musk is cleared to buy Twitter. Having paid little attention to Musk, I have nothing useful to say about the acquisition as such.

I am, however, interested in the assertion that Musk is a “free speech absolutist” and that he will, therefore, apply that principle to his management of Twitter with dire consequences. Many observers believe this means Trump’s Twitter account will be restored, with predictable results. Trump himself reportedly says he won’t rejoin Twitter but anyone who has been mentally functioning for the past five years knows Trump’s word is meaningless. Meanwhile, people like Trump’s children have remained on Twitter all along, promoting their schemes, lying and all the rest. Is the furor just about Trump?

In any case what does “free speech absolutist” mean? Yesterday, Musk tweeted this:

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

Putting aside the logical issues with those sentences, if Musk really means that free speech must “match the law,” there would be little to worry about. Summarized, the law is that speech that is, for example, in furtherance of a criminal conspiracy or that is demonstrably false and harmful may be regulated, not only by private entities but by the government itself. The classic example is shouting fire in a crowded and darkened theater. Such “speech” is dangerous, and the speaker may be held to account for it. Similarly, solicitation of a crime combined with actual steps toward executing the crime may be prosecuted. Speech that is normally covered by, for example, attorney-client privilege that prevents compulsory disclosure loses its privileged status if, for example, the attorney-client communication is part of a criminal enterprise.

If, on the other hand, Musk means that going forward Twitter will not discipline participants and will depend entirely on the government to do so, we will have an example of the most cynical form of disinformation in history. Why? Because Musk knows that the government is not going to undertake direct regulation of social media platforms like Twitter and claiming to depend on “the law” to do so is the height of cynical misdirection.

Mr. Musk may, on the other hand, actually believe that speech is absolute in its “freedom,” so that, for example, Donald Trump should be free to claim in Future Twitter that the 2020 election was stolen and that no consequences should attach to such false claims. Maybe.

I don’t know for sure what Musk actually thinks. Twitter participants appear to be dropping out in large numbers over fear that Musk will turn Twitter into a platform for free-form lying by right-wing lunatics. Others argue that they will “stay and fight.” Many right-wing conspiracists are rejoicing at what they believe will be the New Twitter where anything goes, including blatantly false statements about important matters like elections. Such statements are already appearing in a multitude of tweets.

Staying and fighting may not be a viable strategy if indeed Twitter is going to adopt the policy that anything goes. If it does, it will almost certainly and very quickly attract the Flat Earth and other crazies who have nothing useful to say and are not open to reason. In that case, Twitter may well die, and Musk will lose a lot of money.

I say that because I am confident that a social media platform of Twitter’s scope will not long endure as a home for lunatic fringe participants. There are, of course, plenty of them already participating. Usually, the best approach is to just block them.

Maybe Twitter really is worth $44 billion but the investment could easily be squandered by turning the platform into what Trump’s Truth Social was supposed to be but never achieved. The good news is that it won’t take too long to see which way the mendacity is blowing.

Twitter as a free-to-lie/cheat/steal platform, Twitter as the new home for Fox News and the like, can be replaced by a platform that respects truth, rejects disinformation and honors the true meaning of the idea of “free speech.” Call me naïve, if you like, but $44 billion for a platform that promotes false information is probably a bad investment. We’ll see.

Donald Trump — A Gangster in the White House

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

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

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

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

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

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

Toobin ends the opening with the observation that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus it was written and thus it was done.

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

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

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

Trump’s Documents – Trump’s Crimes

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.

The Stench from the Bench

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.

Is It Too Late?

On Sunday, January 2, 2022, the New York Times published an Editorial entitled “Every Day Is January 6 Now.” https://nyti.ms/3qKLbEH Rather than summarize it, I am going to quote liberally from it so that it’s clear who is speaking and what is being said. I may add some thoughts of my own here and there, clearly indicated, and, of course, at the end.

This is not to say that I think the Times is the final word on this or anything. I have, and will continue to, criticize the writing in the Times and other media whose careless and/or deliberate use of words takes news reporting into another realm. A recent example is this headline: “American officials scrambled to clarify Biden’s suggestion that Putin ‘cannot remain in power.’” https://nyti.ms/3NlwD8a Three co-authors are shown and, presumably, at least one editor reviewed the headline before publication. Drop the word “scrambled” and you have the same news: that officials offered clarifications of Biden’s statement. That is the fact, shorn of the authors’ nuances implying confusion and that Biden was making a proposal rather than some of the other possible interpretations of his remark. See https://bit.ly/3tKPiTa It’s hard to avoid the conclusion that the Times was tilting the table against the President here. Why would it do that?

It’s likely part of the journalism philosophy that leads to “both sides-ing” stories. In any case, the practice is inconsistent with the editorial position of the Times on one of the most important issues of our time. Returning, then, to my main purpose here, I quote now extensively from the editorial of January 2, noting in passing that it is now March 28, another fact to which I will return at the end. Bear with me. This is really important. Really. [ As usual, the bolded text is my doing]

Jan. 6 is not in the past; it is every day.

It is regular citizens who threaten election officials and other public servants, who ask, “When can we use the guns?” and who vow to murder politicians who dare to vote their conscience. It is Republican lawmakers scrambling to make it harder for people to vote and easier to subvert their will if they do. It is Donald Trump who continues to stoke the flames of conflict with his rampant lies and limitless resentments and whose twisted version of reality still dominates one of the nation’s two major political parties.

In short, the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends. No self-governing society can survive such a threat by denying that it exists. Rather, survival depends on looking back and forward at the same time….

The effort extended all the way into the Oval Office, where Mr. Trump and his allies plotted a constitutional self-coup.

We know now that top Republican lawmakers and right-wing media figures privately understood how dangerous the riot was and pleaded with Mr. Trump to call a halt to it, even as they publicly pretended otherwise. We know now that those who may have critical information about the planning and execution of the attack are refusing to cooperate with Congress, even if it means being charged with criminal contempt….

Over the past year, Republican lawmakers in 41 states have been trying to advance the goals of the Jan. 6 rioters — not by breaking laws but by making them. Hundreds of bills have been proposed and nearly three dozen laws have been passed that empower state legislatures to sabotage their own elections and overturn the will of their voters ….

Thus the Capitol riot continues in statehouses across the country, in a bloodless, legalized form that no police officer can arrest and that no prosecutor can try in court….

A healthy, functioning political party faces its electoral losses by assessing what went wrong and redoubling its efforts to appeal to more voters the next time. The Republican Party, like authoritarian movements the world over, has shown itself recently to be incapable of doing this. Party leaders’ rhetoric suggests they see it as the only legitimate governing power and thus portrays anyone else’s victory as the result of fraud — hence the foundational falsehood that spurred the Jan. 6 attack, that Joe Biden didn’t win the election….

Polling finds that the overwhelming majority of Republicans believe that President Biden was not legitimately elected and that about one-third approve of using violence to achieve political goals. Put those two numbers together, and you have a recipe for extreme danger….

Democrats aren’t helpless…. They hold unified power in Washington, for the last time in what may be a long time. Yet they have so far failed to confront the urgency of this moment — unwilling or unable to take action to protect elections from subversion and sabotage. Blame Senator Joe Manchin or Senator Kyrsten Sinema, but the only thing that matters in the end is whether you get it done. For that reason, Mr. Biden and other leading Democrats should make use of what remaining power they have to end the filibuster for voting rights legislation, even if nothing else.

Whatever happens in Washington, in the months and years to come, Americans of all stripes who value their self-government must mobilize at every level — not simply once every four years but today and tomorrow and the next day — to win elections and help protect the basic functions of democracy. If people who believe in conspiracy theories can win, so can those who live in the reality-based world.

Above all, we should stop underestimating the threat facing the country. Countless times over the past six years, up to and including the events of Jan. 6, Mr. Trump and his allies openly projected their intent to do something outrageous or illegal or destructive. Every time, the common response was that they weren’t serious or that they would never succeed. How many times will we have to be proved wrong before we take it seriously? The sooner we do, the sooner we might hope to salvage a democracy that is in grave danger.

[End of Times editorial]

Three months have passed since that editorial was published. We are now a year and three months past the January 6 attack on the Capitol and on American democracy. Here’s where we are:

  1. No main planners behind the January 6 insurrection (referring here to members of the Trump administration, members of Congress and Trump himself) have been indicted,
  2. Members of Congress and others continue to spit in the face of the Select Committee to Investigate the January 6th Attack on the United States Capitol by defying demands, including subpoenas, for records and testimony.
  3. The Select Committee is moving at a pace that makes the tortoise in the famous tale look like War Admiral, the fourth winner of the Triple Crown. At this rate nothing of substance will have been accomplished by the mid-term elections of 2022.
  4. Attorney General Merrick Garland’s Department of Justice has not produced a single indictment of any of the principal conspirators behind January 6, or any indictments of those refusing to comply with lawful orders of the Select Committee, meaning that any indictment now almost certainly would not be tried before the 2024 elections.

I practiced law for 48 years, including conducting investigations of lying and highly resistant conspirators, and closely observed Watergate, the Clinton impeachment, and other sordid political matters. Strategies such as “run out the clock” are well-known by prosecutors. The statute of limitations has already run on at least one of Trump’s crimes. See https://shiningseausa.com/2022/02/18/trump-may-skate-obstruction-justice/

I understand the natural reluctance of prosecutors to bring cases they fear might lose and that might lead to judicial decisions with lasting negative effects on our politics. No one wants to be associated with losing a big case. But failing to bring a case that is justified by evidence, but where the law may be unclear, for fear of defeat is to be defeated already. You have beaten yourself and the country too. That’s where we seem to be now. We are defeating ourselves by allowing the primary perpetrators of the January 6 insurrection to escape swift justice.

Lawyers lose cases all the time. Every trial has a winner and a loser. It’s rare that losing a case has long-term consequences for the attorneys involved.

We’ve seen this before, as I noted in reviewing Andrew Weissmann’s remarkable analysis of the Mueller investigation in Where Law Ends: “rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.” https://bit.ly/3uTJ7M7 Among the leading ones were decisions not to interview Trump’s children who worked in the White House throughout his term.

Even more egregious was the decision not to force Trump’s hand regarding testimony under oath. I almost fell over yesterday when reading in Jeffrey Toobin’s True Crimes and Misdemeanors [started before the 2020 election but only now being finished – more on that in a future post] that Aaron Zebley, Mueller’s chief of staff at the FBI and a senior member of the investigation team, committed one of the worst negotiating sins imaginable.

A meeting was held between Mueller’s people and Trump’s defense team, for the purpose of introducing Rudy Giuliani as the new lead defense lawyer. According to  Toobin, Giuliani wanted to,

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

It appears that Mueller got nothing in exchange for this astounding concession that removed one of the largest leverages that Mueller had. I would not have believed this happened were it not consistent with Weissmann’s descriptions of the influence Zebley exerted at critical moments in the investigation.

Successful investigations require maximum pressure. I don’t mean that the investigators should behave unreasonably or unfairly. That approach would likely backfire at some point. But there is no reason whatsoever to give away leverage without securing at least an equal value in some other form. As it happened, Trump himself was never placed under oath  for an interview, never answered many of the written questions posed to him and almost certainly lied in answering many others in which the self-declared “stable genius” claimed to not remember much of anything. See my series of posts about the Mueller investigation, beginning at https://bit.ly/3tLT2Us.

The Select Committee is run by politicians so there is perhaps even less reason to expect world-class investigative technique, but if something doesn’t change soon, the entire point will be lost. In what universe do leaders of a democracy, all sworn to follow the law and sustain the Constitution, walk free in the face of evidence that they conspired to overthrow the democratically constituted government?

I say ‘evidence’ recognizing we don’t have all of it. But if all the evidence would show they were innocent, is it plausible that so many members of Congress and of the Trump administration would refuse to cooperate, refuse to produce documents, and refuse to testify under oath? Enough is already known to warrant very aggressive and immediate action to bring the Republican dogs to justice. ALL of them.

As the New York Times astutely said back in January 2022,

Jan. 6 is not in the past; it is every day.

The White House and the Department of Justice had better wake up before it’s too late.

The Triumph of Hope Over Experience?

Once again, the rush is on to drop mask mandates and “get back to normal.” Because, Freedumb. This past Presidents Day weekend we visited Wilmington and places along the way. Masks were already the marked exception, even for restaurant staff. Signs referring to masks were mostly gone or disregarded. In our 10-story hotel, one of the two elevators was out of service, many people were perfectly content to, maskless, get on the elevator with you.

As a society we have asked, nay, demanded of our health care workers in hospitals and elsewhere an extraordinary degree of commitment and sacrifice, not to mention life-threatening risk. Small wonder that so many have quit in exhaustion & despair. For a while we made celebrated their sacrifice as we would have for soldiers in time of war (Vietnam excepted)., but that time has passed, it seems.

There are other phrases for what we’re doing now. “Whistling by the graveyard” comes to mind. Dr. Chris Beyrer, professor of epidemiology at Johns Hopkins Bloomberg School of Public Health, summed it up nicely: “… this does look like the beginning of a next phase and let’s hope it lasts.” https://bit.ly/3smMxqk  Indeed, let’s hope. Experience suggests otherwise but we’ll see. I will be quite happy to be wrong about my skepticism.

The over-privileged whiny babies seem to have carried the day with their relentless complaining, arrogant ignorance about the science of the virus and violence. Their hatred and fear of the federal government, their obeisance to the Liar King Trump and other factors have led them to a degree of self-indulgence and dangerous behavior to themselves and others that defies understanding. They must have their seat at the bar, their time at the gym, whatever, and many will simply not accept anything else. Freedumb.

Now, we are on the verge of a shooting war with Russia, a nuclear-equipped country dominated by a former and ruthless KGB operative now essentially Russia’s president for life. Republicans around the country and in Congress have now progressed from the Big Lie of Donald Trump to overt support for a country with which the United States may be at war soon. Their traitorous conduct in supporting, perhaps even planning and certainly defending, the January 6 coup attempt has moved on to more adventurous treasons. Here are their names:

Rep. Elise Stefanik

Rep. Marjorie Taylor Greene

Rep. Lauren Boebert

Rep. Paul Gosar

Rep. Matt Gaetz

Rep. Andy Biggs

Rep. Jim Jordan

Rep. Greg Steube

Rep. Byron Donalds

Rep. Jody Hice

Rep. Thomas Massie

Rep. Kat Cammack

Rep. Jim Banks

Rep. Lee Zeldin

Rep. Bill Johnson

Rep. Dan Crenshaw

Sen. Ted Cruz

Sen. Tom Cotton

Sen. Ron Johnson

Sen. Marsha Blackburn

Sen. Tim Scott

Sen. Rick Scott

Sen. Marco Rubio

Sen. Cindy Hyde-Smith

Sen. Cynthia Lummis

Sen. Lindsey Graham

GOP Chairwoman Ronna McDaniel

GOP Leader Kevin McCarthy

GOP Candidate Ronny Jackson

All Republicans.

There was a time when American politicians would not criticize an American president when we was conducting the nation’s business overseas. And while they reserve the right to oppose U.S. engagement in armed conflict or declarations of war/authorization for the use of force, it was rare that they would overtly side with the enemy in an armed conflict.

No so, today’s Republicans. Given their statements and conduct, it does not challenge the imagination to think they would support Russia’s declaring that all of Europe was Russian territory. Recall Hitler. “The troops massing on your border are just a military exercise. Don’t be alarmed. Our territorial ambitions are quite limited. Believe me.”

But that is a subject for another day. In this post, I want to remind everyone, and hope they share it with others I can’t reach, how Donald Trump, in his official capacity as President of the United States, deliberately and repeatedly lied to the American people for over two years about the COVID-19 virus. In his constant lying, he persuaded his gullible followers that the virus was no threat, that masks were evil, that even the vaccine he claimed to have inspired was not to be trusted, and more. He admitted to having deliberately downplayed the threat in his interview with Bob Woodward. Of course, to deny that he downplayed it would have been another blatant lie because the record of his lies is clear and unflinching.

As a result, Donald Trump is personally responsible for the avoidable deaths of, most likely, hundreds of thousands of Americans. If you think that number is too large, remember that, as of February 22, 2022, the U.S. death total attributable to COVID is 932,894. It seems clear we will come near to or exceed a million dead before this is “over,” if it ever is.

Trump is responsible for many of those that could have been, and still could be, avoided if public health advice had been fully respected. Instead, acts of violence are perpetrated every week in airports and on aircraft, in restaurants and elsewhere – all in the name of Freedumb, encouraged by Trump and his cabal of traitors and incompetents.

It’s tempting, of course, to point fingers at the tens of thousands, or millions, of Americans who have fallen prey to Trump’s siren song. And they are worthy of profound disdain, particularly those who followed his call to storm the Capitol on January 6 and steal the election. Many Americans have proved themselves unworthy of the designation, “American.” They are soft, entitled, and unbending in their disrespect of the needs of others.

And, yet, here we are again, making political decisions about medical issues in our rush to deflect the anger of the self-absorbed cry babies who refuse to wear masks, reject vaccines, and generally behave in a way that assures the pandemic will remain with us longer, perhaps forever. Mostly, if not entirely, in the service of the lies told by Donald Trump and the sycophants who continue to surround him and do his bidding to unlawfully reinstall him as president. It’s a pathetic display of ignorance, arrogance, and insolence. It will not end well.

Here is a chronology of Trump’s lies and deflections about COVID-19. I don’t expect you to read all of the detail, but it may be useful in the coming elections. You may want to just skim through it to get the gist of just how many lies and deflections Trump said just in 2020.

The Year 2020 [italics & bolding added]

January 22:  “We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine,”

January 30: World Health Organization declares a public health emergency of international concern.

January 30: We think we have it very well under control. We have very little problem in this country at this moment — five — and those people are all recuperating successfully. But we’re working very closely with China and other countries, and we think it’s going to have a very good ending for us … that I can assure you.”

January 31: The U.S. Department of Health and Human Services declares a public health emergency for the U.S.

January 31: HHS Secretary Alex Azar announces travel restrictions, effective February 2, prohibiting non-U.S. citizens, other than permanent residents and the immediate family of both citizens and permanent residents, who have traveled to China within the prior two weeks from entering the U.S. No consideration is apparently given to people coming to the U.S. from Europe who had been in China or in contact with Chinese people.

February 7: Trump Interview with Woodward: “It goes through air, Bob. That’s always tougher than the touch … You just breathe the air and that’s how it’s passed. And, so that’s a very tricky one. … It’s also more deadly than your – you know, your, even your strenuous flus. … This is more deadly. This is 5, you know, this is 5% versus 1% and less than 1%. You know, so, this is deadly stuff.

February 10: You know, a lot of people think that goes away in April with the heat — as the heat comes in. Typically, that will go away in April.

February 24: Trump in a tweet: The Coronavirus is very much under control in the USA. We are in contact with everyone and all relevant countries. CDC & World Health have been working hard and very smart. Stock Market starting to look very good to me!

February 25: China is working very, very hard. I have spoken to President Xi, and they’re working very hard. And if you know anything about him, I think he’ll be in pretty good shape. They’re — they’ve had a rough patch, and I think right now they have it — it looks like they’re getting it under control more and more. They’re getting it more and more under control. So I think that’s a problem that’s going to go away

February 26: …when you have 15 people, and the 15 within a couple of days is going to be down to close to zero, that’s a pretty good job we’ve done.

February 27: It’s going to disappear. One day — it’s like a miracle — it will disappear. And from our shores, we — you know, it could get worse before it gets better. It could maybe go away. We’ll see what happens. Nobody really knows.

March 2 — 5 average daily new cases

March 6 — 32 average daily new cases – increase of 5.4 x over 4 days

I don’t think people are panicking. I said last night — we did an interview on Fox last night, a town hall. I think it was very good. And I said, ‘Calm. You have to be calm.’ It’ll go away. 

March 10 — 102 average daily new cases – increase of 2.2 x over 4 days

We’re prepared, and we’re doing a great job with it. And it will go away. Just stay calm. It will go away.  

March 12201 average daily new cases – increase of 2x over 2 days

You know, we need a little a separation until such time as this goes away. It’s going to go away. It’s going to go away. 

March 29 — 15,514 average daily new cases – increase of 76 x over 17 days prior

March 3O: Stay calm. It will go away. You know it — you know it is going away, and it will go away. And we’re going to have a great victory

March 31 — 19,337   average daily new cases – increase of 24 % over two days

It’s going to go away, hopefully at the end of the month. And, if not, hopefully it will be soon after that.

April 3 — 26,081   average daily new cases – increase of 35 % in 3 days

It is going to go away. It is going away. 

April 731,238 average daily new cases – increase of 20 % over 4 days

It did go — it will go away.

April 2828,568 average daily new cases – decrease of 8 % over 21 days

But a lot of movement and a lot of progress has been made in a vaccine. But I think what happens is it’s going to go awayThis is going to go away. And whether it comes back in a modified form in the fall, we’ll be able to handle it.

April 29 — 28,171 average daily new cases – decrease of 1 % over 1 day

It’s going to go. It’s going to leave. It’s going to be gone. It’s going to be eradicated. And it might take longer. It might be in smaller sections. It’ll be — it won’t be what we had. And we also learned a lot.

May 527,134 average daily new cases – decrease of 4 % over 7 days

And I think we’re doing very well on the vaccines but, with or without a vaccine, it’s going to pass, and we’re going to be back to normal.

May 6 — 26.830 average daily new cases – decrease of 1 % over 1 day

Because, you know, this virus is going to disappear. It’s a question of when. Will it come back in a small way? Will it come back in a fairly large way? But we know how to deal with it now much better. You know, nobody knew anything about it, initially. Now we know we can put out fires.

May 8 — 25.475 average daily new cases – decrease of 5 % over 2 days

Well, I feel about vaccines like I feel about tests. This is going to go away without a vaccine. It’s going to go away, and it’s — we’re not going to see it again, hopefully, after a period of time. You may have some — some flare-ups and I guess, you know, I would expect that. Sometime in the fall, you’ll have flare-ups maybe. Maybe not. But according to what a lot of people say, you probably will. We’ll be able to put them out. You may have some flare-ups next year, but eventually, it’s going to be gone. I mean, it’s going to be gone. 

 May 15 — 22.337 average daily new cases – decrease of 12 % over 7 days

We think we’re going to have a vaccine in the pretty near future. And if we do, we’re going to you had a problem come in, it’ll go away — at some point, it’ll go away. It may flare up, and it may not flare up. We’ll have to see what happens.

May 19: “When we have a lot of cases, I don’t look at that as a bad thing,” the president said. “I look at that in a certain respect as being a good thing, because it means our testing is much better. So, if we were testing a million people instead of 14 million people, we would have far few cases, right?

“So, I view it as a badge of honor. Really, it’s a badge of honor,” he added. “It’s a great tribute to the testing and all of the work that a lot of professionals have done.”

Days later, the U.S. recorded 100,000 known deaths from COVID-19. 

June 15 — 21.987 average daily new cases – decrease of 2 % over 31 days

So I think that’s — but even without that [a vaccine or therapeutics], you know, at some point this stuff goes away and it’s going away. 

 June 16 — 22,613 average daily new cases – increase of 3 % over 1 day

I always say, even without it [a vaccine], it goes away. 

June 17 — 23,380 average daily new cases – increase of 3 % over 1 day

…if you look, the numbers are very minuscule compared to what it was. It’s dying out.

But I will tell you, we’re very close to a vaccine, and we’re very close to therapeutics, really good therapeutics. And — but even without that — I don’t even like to talk about that, because it’s fading away. It’s going to fade away. 

June 18 — 24,195 average daily new cases – increase of 3 % in over 1 day

And it is dying out. The numbers are starting to get very good.

July 1 — 44,875 average daily new cases – increase of 85 % over 13 days

And I think we are going to be very good with the coronavirus. I think that, at some point, that’s going to sort of just disappear, I hope.

July 19 — 64,754 average daily new cases – increase of 44 % over 18 days

I’ll be right eventually. I will be right eventually. You know I said, ‘It’s going to disappear.’ I’ll say it again. It’s going to disappear, and I’ll be right. 

NPR: July 19: Trump Interview:   “Many of those cases are young people that would heal in a day,” “They have the sniffles, and we put it down as a test.” He added that many of those sick “are going to get better very quickly.”

At the time of Trump’s interview, more than 3.7 million coronavirus cases had been confirmed in the United States, and more than 140,000 Americans had died.

July 21 — 65,073 average daily new cases – increase of .5 % over 2 days

Well, the virus will disappear. It will disappear.

July 22 — 65,321 average daily new cases – increase of .4 % over 1 day

We’re gonna beat it, yeah. We’re going to beat it. And with time, you’re going to be it — time. You know, I say, it’s going to disappear. And they say, ‘Oh, that’s terrible.’ He said — well, it’s true. I mean, it’s going to disappear. Before it disappears, I think we can knock it out before it disappears. 

August 5 — 56,585 average daily new cases – decrease of 13 % over 14 days

This thing’s going away. It will go away like things go away… 

 It’s going away. No, it’ll go away like things go away. Absolutely. No question in my mind. It will go away. Hopefully sooner rather than later.

August 7 — 54,756 average daily new cases – decrease of 3 % over 2 days

And we’re getting them [manufacturing jobs] even in a pandemic — which is disappearing; it’s going to disappear.

August 13 — 56,371 average daily new cases – increase of 3 % over 6 days

Think of it, we’re almost back to where we were [stock market], and we’re still in the pandemic, which will be going away, as I say, it’ll be going away. And they scream, how you can you say that? I said, because it’s gonna be going away.

August 17 — 51,244 average daily new cases – decrease of 9 % over 4 days

And as soon as the plague is gone — we have vaccines coming, we have therapeutics coming, and it’s going to be gone. And it’s gonna be gone soon.

And the China Plague will fade.

August 24 — 42,123 average daily new cases – decrease of 18 % over 7 days

It’s all coming back so fast and you’ll see it, and the pandemic goes away. The vaccines are going to be, I believe, announced very soon.

August 31 — 41,719 average daily new cases – decrease of 1 % over 7 days

Well, once you get to a certain number — you know, we use the word herd, right. Once you get to a certain number, it’s going to go away. 

September 15 — 38,922   average daily new cases – decrease of 7 % over 16 days

It is gonna disappear. It’s gonna disappear. I still say it.

NPR: September 21: Interview:   “It affects elderly people, elderly people with heart problems, if they have other problems, that’s what it really affects, that’s it. In some states thousands of people — nobody young — below the age of 18, like nobody — they have a strong immune system — who knows?” Trump said.

“Take your hat off to the young because they have a hell of an immune system. It affects virtually nobody,” he added. “It’s an amazing thing — by the way, open your schools!”

October 10 — 47,466 average daily new cases – increase of 22 % over 25 days

But it’s going to disappear. It is disappearing. And vaccines are going to help, and the therapeutics are going to help a lot.

October 15 — 53,152 average daily new cases – increase of 12 % over 5 days

The vaccine will end the pandemic. But it’s ending anyway. I mean, they go crazy when I say it. It’s going to peter out and it’s going to end. But we’re going to help the end and we’re gonna make it a lot faster with the vaccine and with the therapeutics and frankly with the cures.

October 16 — 55,144 average daily new cases – increase of 4 % over 1 day

Even without the vaccine, the pandemic’s going to end. It’s gonna run its course. It’s gonna end. They’ll go crazy. He said ‘without the vaccine’ — watch, it’ll be a headline tomorrow. These people are crazy. No, it’s running its course.

All of the foregoing occurred in 2020. Through Oct. 19, 2020 more than 220,000 people had died from Covid-19 in the US.  Well over a year after Trump’s last quoted remark above, the pandemic death toll in the U.S. is approaching 1,000,000 human beings of all ages and stages of life and health. We will never know precisely how many deaths and other long term/permanent devastating health impacts could have been avoided if Trump had not consistently and repeatedly misled his devoted followers, but it not unreasonable to believe that the pandemic would have entered the endemic stages long ago. Instead, the death and destruction continue. And Trump, well, Trump has moved on. His sole concern is with being restored to the presidency by whatever means – lying, cheating, stealing – will work.

Sources:

NPR: https://n.pr/35rwzSW

Factcheck.org: https://bit.ly/35x0SYd

Guardian: https://bit.ly/3HvJMrm

Vox.com: https://bit.ly/3t4ZJ2c

CNN: https://cnn.it/3M7wvsv

 

Trump May Skate on Obstruction of Justice

I am very sorry to report that the statute of limitations [SoL] has run against Donald Trump’s acts of obstruction of justice when he asked FBI Director James Comey to leave Michael Flynn alone. More on that in a moment.

First, I want to call to all readers’ attention the Lawfareblog at https://www.lawfareblog.com. For readers interested in, and able to tolerate reading lawyers’ opinions, this site has some of the most serious, law-focused discussion you will find anywhere regarding many of the key issues facing the country. As in the analysis of Trump’s obstruction conduct in the earliest known case, sometimes the lawyers’ analysis does not have a happy outcome. But it is always thought provoking, written by serious and accomplished people. Lawfareblog.com is a vast resource that I hope you will visit and support.

Now, back to the bad news. The article that addresses the Statute of Limitations issue regarding Comey and Flynn is at https://bit.ly/3LJqn9q. The SoL expired on February 14 with no action by the Department of Justice to hold Trump accountable for the first of at least 10 instances of obstruction of justice identified by Mueller. The Special Counsel took no action because he believed he was bound by the DOJ position that it could not indict a sitting president. Mueller also had a very narrow understanding of the job he has been given, as detailed in the compelling and important book, Where Law Ends, by Andrew Weissmann, one of Mueller’s chief deputies. I reviewed the book at https://bit.ly/3LENvWF

It is a remarkable work, and everyone should read it.

Mueller’s failure to act left it to the Garland DOJ to pick up the case after Trump left the White House. He didn’t. The running out of the SoL means that, regarding the Comey-Flynn episode, we are SOL. As more time passes, the SoL will foreclose, one by one, any possible accountability for the other nine cases Mueller identified and several that, in my opinion, he inexplicably missed.  See, for example, my extensive discussion of the Mueller Report on the obstruction of justice issues:

https://bit.ly/33zmPFI

https://bit.ly/3LDkdYB

https://bit.ly/3JDzIhf

https://bit.ly/3oYM7o7

https://bit.ly/3I52g2I

The Lawfare blog includes a heat map that graphically illustrates the threat posed by the calendar for 14 possible charges of obstruction (4 more than Mueller identified and more in line with my analysis). In thinking about the obstruction issues, it is important to understand that there are three crucial elements to conviction on any charge:

Obstructive Act

Connection Between the Act and an Active Investigation

Corrupt Intent

By the end of July 2022, DOJ will lose the ability to charge Trump with the two instances in which even Mueller thought were the stronger cases for proving obstruction.

Meanwhile, as Lawfare notes with concern, DOJ remains mute.

At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.

The balance of the Lawfare article consists of an analysis of five scenarios regarding DOJ’s posture. Lawfare admits this is all speculation – it must be since AG Garland is not talking. Many of the five scenarios are decidedly offensive but that doesn’t mean they aren’t correct explanations of what is happening – and, not happening.

Lawfare then makes a compelling case for the Attorney General to explain to the country what is going on regarding Trump’s obstruction of justice. Silence is the least acceptable path forward. Lawfare is right about this, I believe. Read it, I urge you, and judge for yourself.

 

Past the Point of No Return

The New York Times just published a “guest opinion” piece by J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit and an advisor to Republican senators. https://nyti.ms/3HS9cjT

The article is entitled, The Conservative Case for Avoiding a Repeat of Jan. 6. That language suggested to me that the argument would be that we should just accept the Big Lie that the last election was stolen, accept massive voter suppression legislation around the country in red states and, as a democracy, roll over and not only play dead but be dead. My second reaction was, over my dead body.

Turns out, I was overreacting. My first impression of the topic was wrong. Moral: always read the story before falling for the headline. So, I did.

Luttig, to be sure, is a learned man, shaped in the higher echelons of Republican politics and the judiciary during the halcyon days of the Reagan and G.W. Bush administrations. I say “halcyon” because this was the time when the Republican Party still purported, at least, to stand for something. Luttig eventually resigned from the Court of Appeals to become Boeing’s General Counsel with a reported pay raise of more than $2.5 million. https://bit.ly/3Jvs88e Pretty good for a boy from Tyler, Texas.

I mention all that because, as is often true, challenging someone of his standing and accomplishment can be … challenging. But what are they going to do? I don’t practice law anymore and I do love a challenge. So, let’s look at Luttig’s latest thoughts on the all-important subject of avoiding another violent attack on the government and the Constitution.

To his credit, Luttig recognizes that Trump and his Republican devotees represent a “clear and present danger” to our democracy. Noting issues with the language of the 1887 (yes, over 120 years ago) Electoral Count Act, he further acknowledges that the efforts of Senators Hawley and Cruz to overturn the election were based on “little more than a wish” and notes that Trump has confessed to his perfidy, both past and looking forward.

Trump’s continued promotion of the Big Lie has never been an issue. As president he stated he could do “whatever I want” and he still thinks that. Here’s where things get sticky for Judge Luttig.

Referring to the mythical remnants of the Republican Party after deducting Trump fantasists, Luttig says they are “mystifyingly stymied by Mr. Trump” and while they allegedly reject his lies about 2020,

they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

In moving with such facility from “clear and present danger to democracy” to concern about the “existential threat to the {Republican] party,” the Judge reveals his true goal is to right the listing Republican ship and enhance its political fortunes, notwithstanding its hypnotic devotion to Trump. If so, his argument has little or nothing to do with protecting the country from the collapse of democracy.

Luttig’s argument is another variation of “can’t we all just get along?”

the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

“Ought not,” indeed. My, oh my, what a wonderful world it could be.

Luttig completes the fantasy analysis by assigning mutually reinforcing goals to the two parties. This is a standard tenet of books and courses on negotiating for “mutual gain.” Democrats, Luttig imagines should want to reform the Electoral Count Act to protect democracy which he admits is failing.  This, he speculates, would “prevent another attack like the one at the Capitol on Jan. 6, 2021.” The logic of that premise-conclusion escapes me. As Peter Navarro has insisted, the aim of the January 6 mob was to force the election into the hands of the states, where the Republican majority would install Trump. They didn’t really care what the law said or what power Vice President Pence actually had under the law.

The mutual gain in Luttig’s conception is that “Republicans should want to reform the law for these same reasons, and more.”  Uh huh. He asserts that, while Trump and Trumpers won’t join, “there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.”

“Consequential reasons of constitutional and political principle” —  got it. I am rolling on the floor LMAO. Except it’s not funny. Luttig’s thesis, right out of the old and long-ago discarded Book of Republican Orthodoxy, is that,

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington. If the Democrats are willing to divest themselves of the power to decide the presidency that the 49th Congress wrongly assumed 135 years ago, then it would be the height of political hypocrisy for the Republicans to refuse to divest theirs.

Well, now, isn’t that wonderful. Republicans favor limited federal government. Unless, of course, their state gets hit by a big hurricane or flood. Then they are more than happy to line up for federal money and manpower. Actually, I had understood that Republican orthodoxy was opposed to big government everywhere, but that idea was trashed in Texas recently. Republicans are perfectly fine with big government telling people what to do and not do, as long as it aligns with their religious or so-called freedom and family values.

Putting aside Luttig’s phantasmagorical search for coherence in Republican political doctrine (it being the party that advanced no platform in 2020), he next argues that Republicans should want reform of the Electoral Count Act because it is blatantly unconstitutional.”

Trump acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law.

… no Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

Did you catch that unsubtle attempt to both-sides the question? He goes on to suggest that it’s the Democrats that may abuse the ECA in 2024 and thus Republicans should support a statutory redo to prevent that heinous outcome.

Someone please make him stop. Cruz and Hawley caring about the constitution? Seriously?

Luttig argues that reform should include giving federal, yes, federal, courts the power to resolve disputes over state electors and to ensure compliance. Right. Remember Gore and Bush?  And recall that the courts do not have command of the means to enforce anything. That power largely, if not entirely in practice, resides in the Executive Branch.

There are other details to Luttig’s proposals, but, frankly, madam, I don’t give a damn. The Republicans are so dug in on resisting any and every action supported by Democrats that the debate over electoral count reform could last decades. All the while Trump would be whining that he was cheated and his lunatic fringe supporters would continue attacking state capitols and Congress … unless and until the leaders of these fascist efforts are indicted, arrested, tried, and imprisoned.

Recall that the Republican Party has, among other things, embraced many of the conspiracy theories of QAnon, failed to discipline members like Lauren Boebert and Marjorie Taylor Greene, supported a president who lied and dissembled about a deadly virus that has now killed more than 915,000 Americans and maimed countless more, and twice refused to convict on impeachment in the face of overwhelming evidence of guilt. These people are not going to do anything to help the country resist the fascism they regularly promote.

If Luttig is right that “the future of our democracy depends on reform of the Electoral Count Act” that was enacted in 1887, we are in more trouble than rewriting an obscure statute can fix. It’s fine to say that “Republicans and Democrats need to put aside their partisan differences long enough to fix this law.” Fine indeed, but such proposals will have no credibility as long as the planners/leaders/major perpetrators of January 6 walk free. Senators Manchin and Sinema have put the last nail in the myth of bipartisanship.

And that’s the one point that Luttig got right:

the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

If you remain in doubt as to who they are, their names may be found here, https://bit.ly/3gPVNwM, in the updated Congressional Hall of Dishonor

In closing, let me repeat: no statutory language changes are going to protect our democracy from elected and unelected officials who have no respect for law or oaths of office. The Republican Party has made clear beyond reasonable doubt that it is committed to obtaining and keeping power permanently by whatever means are necessary. If it were otherwise, it would have formally repudiated the lying traitor Donald Trump. Instead, it has embraced him as its leader. Just ask Lindsey Graham.

People who believe in the American democracy, however flawed it may be, had better remain alert to the danger and act/vote accordingly. Don’t be distracted by appeals to bipartisanship and unity, however (or not) well-intended. We’re well past the point of no return.