Tag Archives: Trump

What Pence’s Subpoena Resistance Means

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

That Clause states:

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

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

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

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

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

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

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

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

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

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

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

As reported elsewhere by Politico,

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

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

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

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

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

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

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

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

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

The Barbarians Are Inside the Gate

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The reference is, of course, a play on the title of a famous book and movie about the battle to get control of RJR Nabisco in the late 1980s. Wikipedia tells the story well. https://en.wikipedia.org/wiki/RJR_Nabisco  The subtitle of this post is: “When They Tell/Show You What They Are, Believe Them.”

The original thought for this post began with the revelation that the Republicans, newly in the House majority, had disbanded the Subcommittee on Civil Rights and Civil Liberties, reported everywhere at the end of January. But it goes way beyond that.

I refer now to the disgraceful desecration of the Capitol by Republicans during the State of the Union address by President Biden on February 7. Picking up where one of their number yelled “you lie!” at President Obama during a 2009 address to the Congress on health care reform, the Republicans as a group and individually heckled and shouted at President Biden multiple times during his speech. It reminded me of the chaos we sometimes see in foreign legislatures where yelling and disruption are commonplace, where physical violence occurs between disputatious parties. But not here. Not here.

Obviously, no rational person expects the Republicans to agree with much of what Biden proposes. But the State of the Union address is not a place for street rabble to shout down the President. Historically, the displeasure of the party out of power has been adequately demonstrated by their silence when the rest of the Congress applauds usually while standing. It’s a strange ritual, to be sure, but it’s been going on for a long time and everyone understands what the play is.

Until now. The gang of Republican traitors and criminals who helped orchestrate the January 6 attack on the Capitol to try to overturn the 2020 election have turned the State of the Union evening into a circus-like affair. They show no respect for the office of the President, no respect for the sitting President, no respect for each other, and no respect for the American people.

To be clear, this isn’t just about bad manners. This same group is composed of QAnon believers (Marjorie Taylor Greene who shouted “liar” at the President), proponents of automatic weapons everywhere (Lauren Boebert), people whose moral compass has led them repeatedly to deny the reality of what happened on January 6, 2021, and who was responsible (see this video for the reality they continue to deny: https://nyti.ms/3HM77XH). They are the real election thieves, the book burners, the science deniers.

They are led by Donald Trump whose brazen disregard of the law and mores of American society and politics have led him to commit multiple crimes the complete listing of which would fill many pages. He and his sycophantic followers continue to deny the truth about the 2020 election. It was Trump who called the Secretary of State in Georgia to demand that he “find” just enough votes to overturn the will of the people of Georgia. Everyone has heard the tape by now. It was Trump who tried to extort the president of Ukraine to launch an investigation of his political opponent. Everyone has read the “transcript” by now.

And yet, and yet, Trump continues to walk free, to continue his false narrative, to continue stealing from his supporters, to continue as the most dishonest, corrupt political leader in modern American times and perhaps at any time in American history. The boorish display by Republicans at the State of the Union is just a symptom of a much greater and more important danger. Democracy itself is on the line.

And yet, and yet, many Republican commentators continue to raise the specter that if Trump is held accountable for his crimes, there will be civil war, or the door will be opened to retribution by the succeeding administrations intent on punishing their predecessors. If that is true, the idea of America as the Founding Fathers envisioned it is indeed already dead.

It doesn’t have to be that way. But those in charge of the many “investigations” must act and act soon and aggressively to change the course, the curse, of events. The evidence of Trump’s crimes is both overwhelming and widely known. His so-called defenses – mainly the ludicrous “lack of intent” claim – are preposterous but whether they are or not is beside the point. If it is true that “no man is above the law,” if it is true that the Constitution is the supreme law of the land, then the salvation of American democracy demands that Trump be prosecuted for all his crimes in every legal regime where jurisdiction exists. He can make his defenses there where the rules of law and evidence govern.

I have no better idea what is going on, or not going on, at the Department of Justice and the Special Counsel’s office than anyone outside the inner sanctums there, but time is running out. The government must act, or it will be destroyed by the fascist proponents of winning at all costs, the believers in “alternative facts” when the truth denies their self-serving goals. Those people have made clear (just look at Kari Lake’s post-election conduct in Arizona and Ron DeSantis’ abuses of government power in Florida), they will stop at nothing to get what they want. The system that made America one of the most important countries in the world is on the line. It’s past time to call the question.

It’s Because He Was President

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Members of the media continue to discuss how extraordinary it would be for the Department of Justice to indict a former President, and how disruptive it will be if he is indicted for the multiple crimes he was openly and repeatedly committed. Even while trumpeting (sorry) the line that no one in the United States is above the law.

I want to state that it is precisely because Donald Trump was president that he must be brought to justice, the same as any thug or other criminal. It may be unprecedented but being unusual or even one of-a-kind is no excuse for allowing a criminal to walk free. This is particularly true when that criminal continues to spread the same blatant lies that led to the January 6 insurrection. Trump repeats his falsehoods about the 2020 election multiple times a week. He actively endorses the candidacies of election deniers around the country.

Now he has gone the last mile. He has stated that the [false] claims of election fraud justify disregarding all the rules and regulations governing elections, including the Constitution itself. https://bit.ly/3iqMZkU and https://bit.ly/3HeSkGB and https://bit.ly/3ulG1QY

There can be no clearer indication that Trump is not an American patriot but is a self-interested traitor. He promises to continue promoting his lies about the 2020 election even as he runs in the 2024 presidential election. He literally wants to be “installed” as president, leading, obviously, to the removal of the elected President Biden, the replacement of the entire leadership of the federal government and, effectively, the collapse of American democracy. That is what Trump demands and that is why he should be indicted now.

The fact that most of Trump-endorsed election deniers were rejected in the 2022 midterms is irrelevant. That outcome may suggest that to a large extent the voters have had enough of election-denial, but the money keeps rolling in to finance Trump’s legal fees and his announced candidacy for President in 2024. Grotesquely unqualified candidates like Herschel Walker continue to be promoted by Trump and by the Republican Party and are considered serious threats against candidates like Rev. Warnock in Georgia.

Despite everything that has happened since Trump took office, MAGA Republicans and so-call Christian Fundamentalists continue their fanatical loyalty to him. They claim that the events that led to two impeachments (also unprecedented) and the insurrection were all fake. You can show them a video of the Capitol attack and they will say (1) it never happened, (2) it was staged by paid actors, (3) it was really antifa, not Trump supporters, or (4) they were just patriots fighting to correct the theft of the election (for which no evidence has ever been produced).

Trump’s supporters still say that his phone call to the Georgia Secretary of State demanding the “finding” of just enough votes, by exactly one, to give Trump the win was nothing to be concerned about. Same for his attempt to extort from the president of Ukraine an investigation of his political opponent in the 2020 election. And on and on.

Trump’s crimes are so numerous and his uses of the judicial system to stall and deflect so common and well-financed that a degree of indifference may have set in through the body politic. See MEDIAite at https://bit.ly/3Vt9Bjt  Whatever that may be, the fact remains that Donald Trump, while President of the United States, attempted to overthrow the government by preventing the transfer of power to his duly elected successor. His financial crimes and other abuses of power pale in comparison to that unprecedented attack on the very democratic process that elected him.

And that is the reason he must be prosecuted. Trump violated his oath of office, abused his power, and led an insurrection attempting to end democracy. If he had succeeded, it is likely we would never have seen another real election in this country.

So, members of the media, please just stop with the “OMG, it’s unprecedented that a former president would be indicted.” The lack of precedent simply highlights how grotesque Trump’s conduct was and is. I see now that some of his lawyers have testified before the criminal grand jury and that’s good, although we don’t know, and likely never will know the extent to which they avoided telling the truth by citing attorney-client and/or executive privilege. It is well-established law that such privileges cannot be used to shield communications involved in the planning and execution of crimes, but Trump has succeeded many times in deflecting and deferring consequences with similar claims.

There are some suggestions that Trump’s evasion of responsibility for his crimes is running out of legal room, but he still has allies in Congress and on the Supreme Court who may yet come to his aid. Whatever that future may hold, nothing should stand in the way of indictments for Trump’s many crimes. The most important, of course, is his instigation of the January 6 attack, but there are many others as well. The government should focus on the one or two that have the clearest evidentiary basis and that would certainly include the Capitol assault. Make clear to all future political leaders, in both parties, that crimes in office will not be tolerated. We are approaching the two-year anniversary of the Capitol attack.

It’s time. Past time. Indict him, arrest him, and try him.

Judge in Trump’s Pocket Played Like a Fiddle

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“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men even when they exercise influence and not authority.”

So wrote John Emerich Edward Dalberg-Acton, 1st Baron Acton, an English Catholic historian, politician, and writer who lived from 1834 to 1902. No better contemporary example of Baron Acton’s statement exists than Donald Trump. The same Trump who having falsely promoted the Big Lie that he was denied re-election due to massive voter fraud. The same Trump who directed a failed attempt to overthrow the government and install himself as president-emperor. The same Trump who stole multiple classified government documents and removed them to an insecure facility in his Florida mansion.

In the same fashion that he has conducted his entire life, Trump is now fighting desperately to stop the Department of Justice from indicting him for that theft. He is using the courts, aided by a judge he appointed, and issuing threats of violence if he is held accountable for his actions.

Word is that Trump pre-paid millions of dollars to induce a lawyer to represent him, given his long history of refusing to pay lawyers and others who worked for him.

This saga has many parts. I will try to simplify them.

*****

Let’s be clear about a few things at the outset. Trump made no mere “mistake” in removing top secret and other classified documents from the White House during his last days there. He meant to take them, meant to keep them and, most likely, meant to use them for personal profit. The documents and folders are clearly marked with classifications. No person with reasonably normal vision could have mistaken the nature of those documents.

Second, there is no evidence that Trump declassified the documents while he was president. None. Zero. There are elaborate procedures for declassifying documents and an evidentiary record of such actions would have been created. That record has not been produced because it doesn’t exist. The declassification defense is just another Trumpian lie being used by Trump’s lawyers to obfuscate and delay. Remember this question of declassification as you read on. It is the punchline of Trump’s latest “joke’s on you.”

None of this should surprise anyone who has been paying attention for the past five years.

Trump has shown time and again that he lacks respect for American institutions and the checks and balances that preserve our democracy. Trump’s interests are entirely transactional and acquisitive. His conduct in office repeatedly showed a complete lack of concern for national security. He regarded the documents from his presidency as belonging to him – his private property notwithstanding the federal laws on preservation of records. Indeed, Trump clearly did not regard the law, any law, as applicable to him. As he famously said, “I have an Article II, where I have to the right to do whatever I want as president.”

Third, Trump is no longer the President of the United States. His lawyers are as confused about that reality as Trump himself. Forms of address matter and referring to Trump as “The President” or “President Trump” is misleading. Trump is not the president. His term ended January 20, 2021. Of that there is no doubt.

Fourth, and finally, one of the basic tenets of legal argument is that you should not try to prove too much. I will explain below how that principle undermines Trump’s position.

The Chronology

The timeline is well known:

January 6, 2021 – Donald Trump, unable to establish a legal basis for remaining in office, sends a violent mob to stop the government from certifying the election of Joe Biden

January 20, 2021 – Joe Biden inaugurated as 46th President of the United States – Trump leaves the White House with many boxes of materials

Months pass – some classified documents are returned, others are withheld, and their existence denied

August 5, 2022 – Search Warrant approved based on showing of probable cause to  believe multiple serious crimes committed

August 25 – Court order approving release of redacted search warrant affidavit

The Search Warrant Affidavit

The original affidavit for the search warrant makes clear:

(1) DOJ is conducting a “criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records;”

(2) after some boxes of documents were returned, it became clear that “there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the [Mar-a-Lago] in an unauthorized and insecure location. There is also probable cause to believe that evidence of obstruction will be found at [Mar-a-Lago];”

(3) there was also “probable cause to believe that the locations to be searched at [Mar-a-Lago] contain evidence, contraband, fruits of crime, or other items illegally possessed in violationof18 U.S.C. §§ 793(e), 1519, or 2071;”

(4) “Classified information of any designation may be shared only with persons determined by an appropriate United States Government official to be eligible for access, and who possess a “need to know;”

(5) “highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified;”

(6) repeated requests for return of classified documents were made for more than six months before the National Archives was informed that 12 additional boxes of records were found;

(7) the initial 15 boxes of documents contained 184 documents bearing classification marks;

(8) Trump’s lawyer told DOJ the former president “has absolute authority to declassify documents;” [but did not say that he had in fact declassified them]

(9) a Trump administration official publicly claimed, without proof, that Trump had declassified all the documents at Mar-a-Lago;

(10) DOJ thus concluded that “probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation 18 U.S.C. §§ 793(e), 2071, or 1519 will be found at [Mar-a-Lago].”

The Less-Redacted Search Warrant Affidavit

Following more legal filings, a less-redacted version of the search warrant affidavit was filed and publicly released. After comparing the two versions, very few new facts were revealed:

(1) the June 3 release of documents to DOJ was by prior arrangement with Trump’s attorney who represented in writing that there were no more classified documents remaining at Mar-a Lago;

(2) the June 3 release contained an additional 38 documents with various levels of security classification;

(3) Trump’s lawyer did not claim that the documents had been declassified;

 (4) DOJ soon learned about, and obtained, security camera footage covering the storage room in Mar-a-Lago but the affidavit material discussing that footage remains redacted.

Note again that the Trump counsel letter asserting the president’s “absolute authority” to unilaterally declassify documents stops short of asserting that Trump actually declassified any of the classified documents found at Mar-a-Lago. One of the most illuminating aspects of the arguments made by Trump’s lawyers is how careful they are to avoid asserting as fact that he declassified any of the seized documents while in office. They make much of his presumed powers to declassify but never say he did so. [Hint: this will soon become one of the most blatant deceptions of a willing dupe, the Trump-appointed judge to whom the case was assigned]

The Raid on Mar-a-Lago

DOJ subsequently raided Mar-a-Lago and took possession of many additional classified documents that Trump’s representatives had claimed were not there.

In keeping with prior Trump practice, a lawsuit was filed to delay the criminal investigation of Trump by seeking appointment of a Special Master to review all the documents. A Trump-appointed judge agreed, over DOJ’s strong objections, to appoint the Special Master and ordered DOJ to stop its criminal investigation.

Trump’s Judge Issues Bizarre Decision to Delay Criminal Proceedings

The judge’s order that reads more like a political polemic than a sound judicial evaluation of the competing claims about the documents. But it’s worth noting some of the findings made by the judge:

  • “based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it”
  • Despite that statement, the court’s decision applied to all the seized documents
  • Trump would be “deprived of potentially significant personal documents, which alone creates a real harm”
  • Trump made no effort to show a particularized need for any of the seized personal materials that had been haphazardly stored in the Storage Room at Mar-a-Lago for many months, even after he knew DOJ was interested in them
  • Trump might suffer “unquantifiable potential harm by way of improper disclosure of sensitive information to the public”
  • No evidence was cited by the judge as to what “sensitive information” of a personal nature was in the documents and Trump cited none
  • “[Trump] has claimed injury from the threat of future prosecution.” This finding is astonishing. Judge Cannon is completely off the rails here – the threat of criminal prosecution is present in every criminal investigation and is, indeed, the purpose of document discovery which in this case was being conducted pursuant to a grand jury subpoena. If this threat were grounds for a Special Master review, such a review would be automatic in every criminal investigation, and it’s not.
  • “As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude…. the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence.”  Here the judge gives up all pretense and declares that Trump, as a former president, should have privileges accorded to no other citizen under criminal investigation.
  • This point is further established by the court’s later reliance on “[Trump’s] inability to examine the seized materials in formulating his arguments to date – the documents had been requested multiple times over many months during which Trump had ample opportunity to evaluate what he had. His failure to act should not confer an advantage in an argument about the equities of the situation.
  • The judge further cites “Trump’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents.” The judge claims to be unaware of the Fact that the Trump administration for an extended period refused to cooperate in the transition to the Biden administration. This cannot be true unless Judge Cannon has been living under a rock for the past few years. The refusal to cooperate was widely reported for an extended period.
  • Apparently determined to ignore the Fact of the classified markings on hundreds of seized documents, Judge Cannon treats everything as Trump’s personal material: “this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material.”
  • Finally, the judge declares that the possibility of Trump’s having an interest in the comingled personal items seized is sufficient to warrant a Special Master for ALL the documents, including those marked classified! Trump’s decision to mingle the documents and later decline to examine them when demanded by DOJ is thus used as an excuse to give Trump a litigation advantage against the government.

This opinion will likely be the subject of law school examinations in future years as indicative of how judicial bias can undermine the rule of law. It almost certainly would receive a failing grade at any creditable law school if presented in answer to an exam question.

DOJ’s Motion for a Partial Stay

DOJ filed a motion for a stay of Judge Cannon’s order only as regards the classified documents and the ongoing criminal investigation related to the unlawful removal and improper storage of those documents. As to the seized classified documents, DOJ argued, among other points, that,

[Trump] does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them.

[Trump], however, has no right to the “return” of classified records, which are not “his” property.… Classified records also are not “personal” to [Trump] and would not reveal any sensitive personal information.…. Accordingly, [Trump] has no cognizable “individual” interest in any classified records (or in having a special master review those records), and he cannot be “irreparably injured” if such records are not returned to him.

 Trump Claims Personal Ownership of Government Records

That should have been the end of it, but, as usual, Trump continued to argue. His response to DOJ’s motion for partial stay characterized the case as a “document storage dispute” in which “the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”

That utter nonsense stands right alongside Trump’s continued lie that the 2020 election was stolen.

Trump’s lawyers then argued that Trump had the right, and by implication only [no evidence], had exercised the right to convert federal government classified documents into his personal documents:

 The [Presidential Records Act] accords any President extraordinary discretion to categorize all his or her records as either Presidential or personal records …. the former President has sole discretion to classify a record as personal or Presidential….

At best, the Government might ultimately be able to establish certain Presidential records should be returned to [the National Archive]. What is clear regarding all the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with [the National Archive], but not with the Department of Justice.

Trump’s position at that point is that he simply cannot be criminally liable for mishandling documents of the highest secrecy classifications because … well, because he was president and well, he could, like he said, do whatever he wanted. Further, Trump’s argument is that the next president is powerless to uncover documents, including highly classified ones, that are evidence of a crime committed by the former president. That is not and cannot be the law.

If you’ve been following the “reasoning” closely, it has perhaps dawned on you that if Trump has the rights he claims to have – to convert secret government documents this personal property at will – then all other presidents must have had the same rights. Thus, for example, President Clinton could now assert personal ownership over documents that were classified during his presidency and compel their disclosure. Same for presidents Bush II, Carter, and Obama.

Trump’s argument, in addition to inconsistency with statutory and case law, proves too much and thereby violates a cardinal rule of advocacy. It should have been rejected outright.

Trump’s opposition to the DOJ motion for a partial stay also violates at least two other principles of advocacy. For example, he argues “the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office.” But Trump’s team, following in the footsteps of the incompetents who failed in more than 60 attempts in the courts to change the outcome of the 2020 election, does not allege, yet alone prove, that he took any steps to declassify the seized documents while in the White House. Even if it were true that he had the powers he claims, he would have to show they were exercised. They weren’t and his lawyers know it. Their argument is pure sophistry.

The second, and closely related problem, is that Trump’s lawyers appear to believe he is still President of the United States. They refer to him in their legal papers as either the “former president” or as “President Trump,” whichever suits their claim of the moment. This is more sophistry. Trump is no longer president and has not been since January 20, 2021. He cannot, therefore, continue to exercise the powers granted to the president under the Constitution.

Consider for just a moment what the situation would be if Trump were right. President Biden would decide X policy as a matter of national security. Trump would countermand that policy, claiming he had the right to exercise the powers of the presidency indefinitely. Preposterous on its face.

Equally fatuous is Trump’s claim that he has the right to indefinitely restrict access to his “Presidential records” as defined in the Presidential Records Act. Putting aside that the statute cannot be construed to permit a president to conceal documentary evidence of a crime, the argument ignores 44 USC sec. 2202 that says, “The United States shall reserve and retain complete ownership, possession, and control of Presidential records….”

Whatever else Trump may be, he is not the United States.” And his claim that “there still remains a disagreement as to the classification status of the documents” lacks even the rudiments of a viable argument. Matters are not “in dispute” just because one party, without factual basis, claims they are. We know that Trump has made a lifetime practice of bald-faced lying but his attorneys are subject to a higher standard, as is the judge.  They should be particularly sensitive to this because of the many failed attempts to overturn the 2020 election without evidence to support their outlandish claims.

Trump’s Judge Rejects DOJ’s Motion for Partial Stay

DOJ’s Reply In Support Of Its Motion To Stay Pending Appeal thoroughly eviscerates Trump’s claims that the Presidential Records in dispute are his personal property. Nonetheless, and unsurprisingly, Trump’s handpicked judge rejected DOJ’s position by giving full credence to Trump’s claim that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials …; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials.” The judge also continued to give controlling weight to Trump’s bootstrap argument that he “has not had a meaningful ability to concretize his position with respect to the seized materials.”

The judge should have said that Trump chose not to do so when the opportunity was readily available during the months of haggling with the government about whether he had classified documents and, if so, which ones. Instead, apparently because Trump is entitled to special treatment under the judge’s conception of the law, Judge Cannon simply gives Trump yet more opportunities to delay justice, opportunities no other citizen would have been granted.

The effect of Judge Cannon’s rejection is remarkable. He went to some lengths to describe the various investigative steps still open to DOJ while repeatedly foreclosing any reliance on the content of the seized classified documents. Worse, his decision means that the Special Master will have to decide whether the government properly classified the seized documents.

The decision gives no hint of how the Special Master is to make such determinations, but it seems certain this will require extensive inputs from the intelligence community, leading to further delays in the criminal investigation into which the judge has inserted the court. When the Special Master’s report becomes available, Trump will almost certainly challenge each adverse finding, leading to more opinions from the judge and appeals. Neither the Special Master nor the judge have any particular expertise in the decisions they will be making.

Among the on-going investigative actions permitted by the judge’s order are “as indicated in the September 5 Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments.” This logical inconsistency perfectly illustrates the travesty of the judge’s decision: the seized documents can somehow be used for further intelligence classification even as the Special Master, and eventually the judge himself, decide whether the documents were properly classified.

Another stunning misrepresentation by Judge Cannon resides in this remarkable statement:

“there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure.”

The judge is more concerned about leaks from the government than about the national security implications of leaving the classified documents in Trump’s control.

In a final attempt to show his even-handedness, Judge Cannon notes:

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved …. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.

The problem here is that it is not the determination of the Department of Justice that are at issue. It is the determinations of the agencies that classified the documents in the first place. Rather than giving any presumption of validity to the government’s classifications, and without any attempt by Trump to show that the classifications were defective or overridden by an actual presidential decision, the judge has inserted the judiciary into a process it is incompetent to evaluate. The opinion reads like a sophisticated but unmistakable MAGA polemic on the evils of the federal government.

Hey, Judge – Fooled Ya!

Rather than spend more time analyzing the DOJ arguments against the judge’s bizarre and illogical decision, let’s leap ahead to the final step in which Trump, through his lawyers, springs the trap on Judge Cannon.

The judge’s order denying DOJ’s motion for a partial stay was issued September 15. The Special Master wasted no time thereafter. A letter from Trump’s lawyers states: “On September 16, 2022, Your Honor invited the parties to the above-captioned litigation to provide a docketed letter with suggestions regarding the agenda for tomorrow’s hearing.” Then this:

the Draft Plan [set out by the Special Master] requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

The appropriate response to this astounding claim should be:

claims regarding declassification have been waived and no further action regarding them is required. The stay is lifted as to the classified documents and DOJ is free to use them in its criminal investigation as it chooses. Trump’s counsel have been more than a little too cute in their attempt to manipulate and delay these proceedings and the pending criminal investigation. Neither the Special Master nor the court will countenance further obfuscation. The Special Master is relieved of any duty to consider the classification of the classified documents. At a later date the court will consider whether Trump’s counsel should be sanctioned for their attempt to manipulate this proceeding for purposes of delay.

Recall that the presence of classified documents in the materials removed by Trump was known as early as February of 2022. https://wapo.st/3BPYXMs It is now late-September and Trump’s lawyers have exposed their delay strategy in the starkest terms. They baited Trump’s appointed judge who took the bait. Now he looks like just another sucker who was played by Trump. Trump’s loyalists in the White House have been lying and dissembling about Trump’s theft of classified documents for more than a year. Last year they claimed the boxes contained nothing but newspaper clippings. https://wapo.st/3Sesd4u

It’s past time for either the district court judge and/or the 11th Circuit Court of Appeals to declare an end to the Trump charade. It should not take long to confirm that the purloined classified documents are authentic and that, by itself, should be sufficient for the grand jury to indict Trump on multiple criminal counts.

A Special Place in Hell

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On August 16, 2022, a United States Senator representing Florida published an “open letter” to “American Job Seeker.” The letter purports to address grievances about the planned hiring of 87,000 new employees for the Internal Revenue Service. In keeping with Scott’s general method of operation, the letter is replete with lies, distortions, and deflections. A U.S. Senator addressing the legislation he’s complaining about should know better. I believe he does and that his mendacity is deliberate. Donald Trump will be happy with him, though, so in Senator RIck Scott’s mind, he is fine with lying, distorting, and deflecting. Let’s have a closer look.

First, Scott decries the “labor participation rate” that he says the Biden administration has caused “to drop to historic lows.” That is a gross distortion at best and a bald-faced lie at worst.

The labor participation rate is the percentage of the population that is either working or actively looking for work. A casual look at Labor Department data would have shown Scott that the rate has remained within a percentage point or so of the level during Trump’s administration. https://bit.ly/3SZT71u Except, of course, for the big dip in 2020 caused by, you will recall, Trump’s grotesque mishandling of the pandemic. In July 2022 the rate was only .3 below the level when Biden was inaugurated. Oh, by the way, Florida, Scott’s state, ranks among the lowest states in LPR. Also, by the way, the national unemployment rate was 3.5% in July 2022, exactly where it was in February 2020, just before the pandemic struck. By most standards that unemployment rate is considered “full employment.”

Scott then says, “I write to you today to offer a few things for you to consider as you continue your job search.” Ah, job hunting advice from a professional politician from Florida, a man whom Wikipedia describes this way:

During his tenure as chief executive, the company [Columbia/HCA, then the largest private for-profit healthcare company] defrauded Medicare, Medicaid and other federal programs. The Department of Justice ultimately fined the company $1.7 billion in what was at the time the largest health care fraud settlement in U.S. history.

Scott has two messages: (1) expansion of the IRS workforce is a threat to Americans and when Republicans get control of Congress in the fall elections, they will remove the funding for these jobs; therefore, don’t waste your time applying; (2) the original job posting indicated the new IRS employees would be armed and one of their “major duties” was to be prepared to kill your neighbors and friends.

That deliberately misinformed and childish hysteria is plainly designed to frighten ordinary Americans. Scott goes on to refer to an “IRS super-police force” that will not only audit your taxes (that you are required by law to pay — remember, Scott is in the party of “law and order”) but directly suggests a mob of armed government employees will kill you if you don’t pay up.

This is the face of the modern Republican Party that uses the rhetoric of government running wild to frighten Americans into believing that a utopian and authoritarian solution is their only safeguard. The reality is quite different.

Lower taxes are, first, a lie. Republicans only lower taxes for the very wealthy. Ordinary Americans see little of the oft-promised tax cuts. Trump’s oft-toted big tax cut went almost entirely to the wealthy and increased the federal deficit by a huge amount. While promising to eviscerate the government, Republicans also promise stronger borders, a more powerful military, and more efficiency – all for less money! The Republican Party is the modern version of the snake oil salesman – buy my elixir and enjoy good health for life! Nothing to it. Something for nothing.

Let’s look more closely at Scott’s hysterical claims. He uses transparent techniques. All caps on “$80 BILLION.” He then compares the resulting IRS work force to the combined employment of four familiar federal agencies: Pentagon, FBI, Customs and Border Protection, and the State Department.  If his original claim of doubling the size of the IRS was accurate, then this might be true even if totally pointless. But it is not. The IRS is not going to hire 87,000 new employees in one year. So, Scott’s workforce comparisons are just more distortions/lies.

The more important question is: what will the new employees be doing that is good for America? Senator Scott doesn’t want you to know about that. Here’s why.

The IRS’s budget has been cut by nearly 20 percent since 2010, impacting the agency’s ability to staff up and modernize half-century-old technology. In 2010, the IRS had about 94,000 employees. That number dipped to about 78,000 employees in 2021. Some of the agency’s computers still run on COBOL, a programming language that dates back to the 1960s. Since 2010, the agency’s enforcement staff has declined by 30 percent, according to IRS officials, and audit rates for the wealthiest taxpayers have seen the biggest declines because of years of underfunding. [https://bit.ly/3K8AzIp]

So, if you’re fine with wealthy tax cheats getting away with under-paying taxes, you’ll appreciate Senator Scott’s gross deception. Otherwise, well, you’ll recognize that you can’t run the government on thoughts and prayers Republicans like to send when your school children are slaughtered with AR-15’s they refuse to restrain.

Speaking of that, Senator Scott also wants you believe that the IRS auditors are going to shoot you. Another lie. Fewer than 3% of IRS employees are Special Agents who carry weapons. Why do they? Because they are law enforcement personnel in the IRS Criminal Investigation unit. They investigate criminal tax violations and other financial crimes such as money laundering, bank secrecy, national security, and national defense matters.

While we’re still on violence, Senator Scott should know that anti-government, anti-worker statements have inspired violent attacks on federal employees in the past. There are now reports of one Republican candidate advocating shooting federal employees, including IRS employees, “on sight.” When you add these incitements to violence against federal employees carrying out Congressionally mandated duties to Republican indifference to the slaughter of school children with automatic weapons they refuse to regulate, you have the perfect storm of a political party advocating violence against its opponents and the government.

Senator Scott’s letter is a dangerous collection of gross distortions and outright lies. This man cannot be trusted. Florida should send him packing (no pun) as soon as possible.

Answers to Senator Mike Lee’s 8 Stupid Questions

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On August 10, U.S. Senator, and Trump sycophant, Mike Lee published an opinion piece on, where else, Fox News, entitled, Trump raid leaves me with 8 important questions as a Senate Judiciary Committee member.  I am here to help. For the record, note that Lee twice clerked for Justice Samuel Alito, who famously wrote the majority opinion imposing his religious views on the country while overturning Roe v Wade.

See also https://shiningseausa.com/2022/05/05/justice-alitos-masquerade/

After reminding us he was a federal prosecutor, Lee poses his eight questions.

  1. Did Attorney General Merrick Garland personally sign off on this action?

Answer: A modest effort by Lee would have told him the answer. It’s clear now that Garland did sign off, reflecting awareness on the part of DOJ that its investigation at Mar-a-Lago was singularly important.

  1. Why break into the safe at Trump’s Mar-a-Lago home rather than seize it, take it into custody, and seek a warrant to open it?

Answer: It’s unclear why Lee cares about this, but most likely it’s just part of the “Trump as victim” narrative that Republican sycophants constantly promote to show their loyalty to Trump, as opposed, you know, to loyalty to the country they swore to protect and defend.  The warrant governing the entire search almost certainly permitted the FBI to “break into the safe” if that is in fact what they did. You would have thought that Trump, faced with the “raid,” would have just opened the safe. Maybe he did. Lee wasn’t there. Or Trump refused to open it, so he could add to his victimization ploy.

  1. Why execute a search warrant rather than seek the items through an informal process such as a subpoena?

Answer: Lee is either deliberately ignorant or just plain stupid. Trump would never have complied with a subpoena and Lee knows that. Pursuing a subpoena would just have delayed everything, alerted Trump to the target of the investigation, and likely resulted in destruction of or further secreting of the evidence. Trump refused to answer Special Counsel Mueller’s questions, has claimed that everything he did is forever protected by some form of privilege and in general declared himself immune from, and superior to, the law. If Lee has not learned any of this, his “opinion” is worth exactly nothing. He just going along to get along with the Republican narrative that the man who led the attempt to overthrow the government on January 6 did nothing wrong.

  1. If this is genuinely about presidential records, why would the former President — who was in charge of declassifying documents — be subject to prosecution for retaining custody of the same documents? It’s important to note that classification authority belongs to the president of the United States — NOT to bureaucrats at the National Archives.

Answer: Senator Lee knows a lot less about the classification of federal government documents than he would have you believe. For a short course introduction, see https://twitter.com/MarkHertling/status/1557911337468133377  If you want to look further into General Hertling’s military chops, look at this: https://en.wikipedia.org/wiki/Mark_Hertling

  1. If this is the product of the growing political weaponization of federal law enforcement agencies, shouldn’t all Americans be outraged by the Democrats’ plan to hire an additional 87,000 federal agents?

Answer: Clever but no cigar. By characterizing this as a hypothetical, Lee leaves himself room to say, “I never said there was growing weaponization, etc.” But, of course, a claim of weaponization is exactly the message he intended to deliver.

Why he thinks the increased staffing for the Internal Revenue Service (that’s the 87,000 new employees) is relevant here will remain a mystery to all rational people. But if anyone wants to know, read this: https://wapo.st/3SOxMHZ And if weaponization is the allegation, perhaps Sen. Lee should do a little reading about the Trump administration, especially the last year or so. Might start with Betrayal, The Final Act of the Trump Show, by Jonathan Karl. Or these:

The Fourth Reich — It’s Them or Us https://bit.ly/3QIoCLy

Donald Trump — A Gangster in the White House https://bit.ly/3Po4kpB

Trump’s Documents – Trump’s Crimes https://bit.ly/3zMWik4

  1. How is this aggressive action defensible in light of the FBI’s and DOJ’s treatment of Hillary Clinton, who was never subjected to such an invasive intrusion of privacy, even though she mishandled classified material and destroyed evidence?

Answer: Sen. Lee should see a doctor about his memory loss. I will not waste time with this old, very old, line of Republican deflection, except to note that Secretary Clinton did not attempt to stage a coup to prevent the lawful and peaceful transfer of power. Oh, and DOJ’s (FBI’s Comey, remember him?) treatment of Hillary Clinton was likely to ultimate cause of her loss to Trump in the 2016 election.

  1. Why should we assume that the federal bureaucracy isn’t targeting Republicans when the FBI and DOJhave taken no action regarding flagrant violations of the law by pro-abortion extremists threatening Supreme Court justices at their homes?

Answer: Prosecutorial decisions about political protests are more than a little different than investigation of known crimes involving national security. And, just for the record, AG Barr’s records of using DOJ for Trump’s personal and political benefits is undeniable. We can match the good senator deflection for deflection, but it’s pointless. Trump removed documents from the White House that he knew had the highest security classification. Why? Republicans like Lee don’t care about the national security of their country. They are only interested in being seen by Trump as 100% loyal to him, just in case, you know, he becomes president again.

8. Did FBI Director Christopher Wray intentionally wait to carry out the raid until after his oversight hearing with the Senate Judiciary Committee last week? I asked him whether he was concerned with warrantless “backdoor searches” under Section 702 of the Foreign Intelligence Surveillance Act. He seemed unperturbed.

Answer: What if he did? Lee is a US Senator and can ask the FBI questions until he is blue (or is it red?) in the face.

Lee’s rant ends with his false hope that the FBI has been appropriately careful in handling the decision to raid Trump’s “home:”

If there’s something we don’t know, something that will clarify the reasons for the raid, then the FBI needs to articulate that justification soon as possible. If there isn’t, we’ve got problems at the FBI.

In this statement, Lee reveals his ignorance of how DOJ/FBI works OR, more likely, is just playing to the victimization/fears of the Trump base that somehow the federal government is out to get them. Senator Lee and most other people are not entitled to know every detail of criminal investigations, regardless of the target. Lee seems to forget, as he has forgotten his oath of office, that Trump is subject to the law the same as everyone else. The investigation of Trump is based on well-founded concerns of criminal behavior in a vast range precisely because, not instead of, his having been president. The reason is simple enough: if the president can commit crimes and not be called to account, the Constitution is meaningless and, as Benjamin Franklin feared, the republic is lost.

Prosecution of Donald Trump

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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

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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?

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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

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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 ….