Tuesday, September 6, 2022

Isn’t That Special

Charlie Pierce is not impressed with the ruling for Trump in the case of the special master.

Sports reference coming up, prepare to Google as needed. It is Happy Hour in the Gehenna Bar and Grille. Eddie Cicotte and Chick Gandil watch the news on the TV above the bar, nod knowingly, and they buy Jack Molinas another drink. From the Washington Post:

U.S. District Judge Aileen M. Cannon wrote in her decision that the Justice Department cannot continue reviewing the materials seized by the FBI at Mar-a-Lago on Aug. 8 or use them in its criminal investigation until the special master concludes his or her assessment. But she ruled that the Office of the Director of National Intelligence would be allowed to continue its ongoing assessment of the possible risk to national security posed by the removal from government custody of classified documents, some of them related to highly sensitive government and intelligence secrets.

That’s the hocus. Here’s the pocus:

In her opinion, Cannon sided with Trump’s legal team and said that the former president does retain some executive privileges after leaving office — a stance that the Justice Department disagrees with. “The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege,” the ruling states.

How more magical can these days be?

The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public[…]

Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith. As the Richey court wrote, “a wrongful indictment is no laughing matter; it often works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.”

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.

And there we have it. Judge Cannon has divined the identity of…The Real Victim. He’s down there in Florida, deeply a’skeered that his alleged crimes are coming to light and deeply worried about the effect this will have in the future on his various bunco schem—er…enterprises.

And to hell with you, National Archives, you bunch of reckless barbarians. Now, coming up next on Hannity…

Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.

I would like to ban the use of the word “unprecedented” from further discussion. It is a preposterous word in this context and is becoming more so almost by the hour. Saying anything that has occurred in national politics since the fall of 2015 is “unprecedented” is like standing in the foothills of the Himalayas and talking about the “unprecedented” size of Mt. Everest. While admittedly the inevitable product of 40 years of increasingly virulent Republican vandalism, El Caudillo del Mar-A-Lago nonetheless was a creature of the unprecedented, at least among presidents of the United States: A bigger liar than Nixon. More inept than Harding. More devious than LBJ. And, oh, that he were as forgettable as Buchanan or Pierce. But we can’t have everything, now, can we?

I hope Jared can clear his calendar for the next few months because being special master is going to be a full-time gig.

The highest level of our government has been rendered an unconvincing puppet show with no mystery left in it at all.

The way forward is that the Department of Justice can appeal the ruling, but for now part of the investigation is on hold while the special master — who has yet to be appointed — reviews the 11,000 pages of documents, pictures, and Whopper wrappers that were all tossed in the boxes in the basement of Mar-a-Lago.  So that will slow things down.

That’s aggravating to a lot of people who want a swift and assertive end to this whole episode.  But in handing Trump a win of sorts, it removes his claim that the whole system is against him.  And even if the delay takes the investigation past the mid-terms, that does not delay the inevitable.  I suspect that the DOJ is secretly relieved that they do not have to present evidence under the gun of an election in 2022.  Even if the GOP takes over the House, they have no control over the DOJ except for the shouting.

The investigation will go on.  The evidence will still be there.  And if you grew up in the Midwest, you know that a snow fence cannot stop a blizzard.

Sunday, August 28, 2022

Sunday Reading

These Things Must Be Done Delicately — David Rohde in The New Yorker on the dangers of Trump-prosecution syndrome.

In January, fifteen boxes of records that Donald Trump had taken from the White House to Mar-a-Lago, his Florida estate, arrived at the National Archives. Inside were printouts of news stories, personal letters, photographs, and other mementos—the detritus of the Trump Presidency. But interspersed in the hodgepodge of items were a hundred and eighty-four classified documents—including sixty-seven stamped “confidential,” ninety-two marked “secret,” and twenty-five labelled as “top secret.” All but one of the boxes held classified information.

Markings indicated that some of the documents included information that had come from clandestine human sources and electronic eavesdropping—the most sensitive methods used by American intelligence agencies to collect information. The archivists, according to a thirty-eight page affidavit released on Friday, referred the case to the Justice Department for review. In legalistic prose, archive officials described the contents of the boxes: “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records,’ ” the affidavit stated. “Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly identified.” F.B.I. agents found that “several of the documents” also contained what appear to be Trump’s handwritten notes.

The details of Trump’s reckless handling of highly classified information helped federal prosecutors make their case to Bruce Reinhart, a federal magistrate judge in Florida, on August 5th, that they needed to conduct a search of the former President’s estate in Palm Beach. Three days later, with Reinhart’s approval, Justice Department officials and F.B.I. agents descended upon Mar-a-Lago and carted away four sets of top-secret documents and seven other sets of classified documents.

Earlier this week, Reinhart ordered that the affidavit be unsealed. A separate Justice Department filing, also released on Friday, explained why much of the legal filing had been redacted, and hinted at how they had learned about additional classified documents in Trump’s possession. Investigators stated that they had obtained “information from a broad range of civilian witnesses” but argued that they should remain anonymous because they may be subject to “witness intimidation or retaliation.”

Trump, within minutes of the documents’ release, declared himself a victim of a conspiracy. “Affidavit heavily redacted!!! Nothing mentioned on ‘Nuclear,’ a total public relations subterfuge by the FBI & DOJ,” Trump posted on Truth Social, the platform he launched after being banned from Twitter. “Judge Bruce Reinhart should NEVER have allowed the Break-In of my home.”

In a more normal political environment, the Trump case could serve as a civics lesson, of sorts, for Americans. Despite Trump’s false claims, Reinhart has made public as much information as possible. The legal process that the case is following illustrates the procedures in American jurisprudence that help to insure that prosecutors proceed methodically and fairly. There are times, certainly, that these processes have abjectly failed, but Trump’s claims of planted evidence and “deep state” plots are false and dangerous. His conspiracy theories have unleashed a surge in threats of violence against F.B.I. officials. “It has gone way too far,” Tom O’Connor, a former head of the F.B.I. Agents Association, told me.

The investigation has raised expectations on the left of an event that Trump’s opponents have dreamed of for years: a criminal prosecution of the reality-television star turned President. Legal experts and former Justice Department officials told me that, based on the publicly known evidence, prosecuting Trump for mishandling classified documents appears simpler than bringing criminal charges against him for his role in the January 6th storming of the U.S. Capitol. The Espionage Act and other statutes clearly state that mishandling classified information is a crime. David Petraeus, a C.I.A. director during the Obama Administration, and Sandy Berger, a national-security adviser during the Clinton Administration, were both investigated for improperly handling classified information and eventually pleaded guilty to misdemeanor charges.

But Stephen Gillers, a professor of legal ethics at New York University, cautioned me that a successful prosecution of Trump would likely need to demonstrate that his reckless handling of classified information caused actual harm—such as adversaries learning about American intelligence methods. Trump’s lawyers would argue that he was merely guilty of carelessness. Trump himself, of course, would make the case that he was being politically persecuted. “I don’t think a jury would convict him without proof of harm. I’m not sure I would,” Gillers said. “He’s a sloppy guy, and he couldn’t let go of the Oval Office, so he dumped a lot of stuff into boxes—souvenirs of his Presidency.”

Gillers added that, fairly or unfairly, prosecuting a former President requires meeting a higher legal and political threshold. “It has to be one-hundred-per-cent irresistible as a matter of law,” he said. “There can be no fact, no event, no piece of evidence that could support any room for ambiguity.” A former Justice Department official I spoke with on Friday agreed. “The jury could say, ‘Who cares?’ ” he said. “I don’t know that it’s that easy or straightforward.”

The prospect of Trump yet again avoiding consequences for his actions is distressing. During the Trump Presidency, Republicans, sometimes mockingly, accused liberals of suffering from “Trump Derangement Syndrome,” or what they claimed was an exaggerated fear or hatred of Trump. In the wake of January 6th, dread about Trump has understandably intensified. The former President’s response to the Mar-a-Lago search shows that he is as dangerous and unrepentant as ever. But the emergence of a Trump-prosecution syndrome is also something to guard against. The criminal-justice system is a blunt instrument that is not well suited for resolving the country’s political conflicts. A rushed prosecution that results in an acquittal would only strengthen the former President. The judicial process can be maddeningly slow. The best option for Trump’s opponents is to wait and trust—prosecutors, judges, jurors, and voters—the very system that Trump is trying to subvert.

Doonesbury — The British are coming.

Friday, August 26, 2022

Happy Friday

Today we will learn about such legal concepts as “probable cause” and how they apply to Der Alte Kaker of Palm Beach and his propensity to hang on to classified documents like Gollum and the One Ring.

This will not be the end of it.  It’s going to be a while things to work their way through the system — like a cherry pit involuntarily swallowed — but it will eventually come out and it will not be pretty for any of us.  But justice isn’t supposed to be pretty.

Meanwhile, don’t mince words, Joe.

President Biden on Thursday night launched a push toward the midterm elections with a fiery speech in Rockville, Md., in which he cast the Republican Party as one that was dangerously consumed with anti-democratic forces that had turned toward “semi-fascism.”

It was some of the strongest language used by Biden, a politician long known — and at times criticized for — his willingness to work with members of the opposite party.

“The MAGA Republicans don’t just threaten our personal rights and economic security,” Biden said, referencing former president Donald Trump’s Make America Great Again slogan. “They’re a threat to our very democracy. They refuse to accept the will of the people. They embrace — embrace — political violence. They don’t believe in democracy.”

“This is why in this moment, those of you who love this country — Democrats, independents, mainstream Republicans — we must be stronger,” he added.

I quibble with “semi-fascism.”  Here in Florida, it seems like the full-on version.

Tuesday, August 9, 2022

Probable Cause

From the Washington Post:

Former president Donald Trump said Monday that the FBI had raided his Mar-a-Lago Club and searched his safe — activity related to an investigation into the potential mishandling of classified documents, according to two people familiar with the probe.

One of the people, who spoke on the condition of anonymity to discuss its details, said agents were conducting a court-authorized search as part of a long-running investigation of whether documents — some of them top-secret — were taken to the former president’s private golf club and residence instead of sent to the National Archives when Trump left office. That could be a violation of the Presidential Records Act, which requires the preservation of memos, letters, notes, emails, faxes and other written communications related to a president’s official duties.

Searching a former president’s property to look for possible evidence of a crime is highly unusual and would require approval at the top levels of the Justice Department. It represents a historic moment in Trump’s tortured relationship with the Justice Department, both in and out of the White House.

A department spokeswoman declined to comment when asked whether Attorney General Merrick Garland approved the search. The FBI also declined to comment.


The president of the FBI Agents Association, Brian O’Hare, issued a broad defense of the investigators who carry out court-approved searches, without commenting specifically on the Trump case.

O’Hare said search warrants are issued by federal judges, “must satisfy detailed and clear procedural rules, and are the product of collaboration and consultation with relevant Department of Justice attorneys.”

FBI agents, he added, “perform their investigative duties with integrity and professionalism, and remain focused on complying with the law and the Constitution.”

Anyone who went to law school, paid attention in civics class in high school, or has watched “Law & Order” knows that a search warrant is only issued when detectives can present enough evidence to a judge to justify a search. It’s called probable cause, and it’s detailed in the Fourth Amendment.

The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

Fourth Amendment case law deals with three main issues: what government activities are “searches” and “seizures”, what constitutes probable cause to conduct searches and seizures, and how to address violations of Fourth Amendment rights. Early court decisions limited the amendment’s scope to physical intrusion of property or persons, but with Katz v. United States (1967), the Supreme Court held that its protections extend to intrusions on the privacy of individuals as well as to physical locations. A warrant is needed for most search and seizure activities, but the Court has carved out a series of exceptions for consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

It would be ironic if Trump ended up in legal jeopardy for violating the Presidential Records Act as opposed to fomenting a rebellion against the government. Remember that Al Capone went to jail for tax evasion, not bootlegging or murder.

Monday, July 25, 2022

Go For It

Via TPM:

Several members of the Jan. 6 Select Committee on Sunday argued that there is enough evidence for Attorney General Merrick Garland to open a criminal investigation into former President Trump after the panel’s public hearings detailed its case that the deadly Capitol insurrection was the result of a multi-step, concerted effort by Trump and his allies to subvert the 2020 election results.

Committee vice chair Rep. Liz Cheney (R-WY) told CNN that although the panel hasn’t decided whether to make criminal referrals against Trump, the panel is considering it.

Cheney said the committee has seen “very serious misconduct and certainly supreme dereliction of duty” by Trump, pointing to the panel’s public hearings that laid out Trump’s corrupt actions amid his refusal to concede the election.

“But you look at what we have laid out in these hearings in terms of the President’s efforts to corrupt the Department of Justice, to corruptly pressure state and local officials, certainly what he did in terms of attempting to pressure the vice president to violate the law and the Constitution,” Cheney said.

Cheney noted the committee’s public hearing last week that featured witness testimony about Trump’s refusal to issue a public statement demanding his supporters leave the Capitol on Jan. 6, despite how people in his inner circle demanded him to do so.

Some hand-wringers say that prosecuting Trump and his enablers will tear the country apart.  Aside from the fact that it already is, I’m of the mind that not prosecuting them will make it worse.  We are supposed to be a country where the rule of law is our foundation; not some dynastic tradition of monarchy but on a Constitution.  Trump and his minions not only violated that compact by thought, word and deed, they had every intention of throwing it out.  They need to be held accountable for that.

So if bringing them to justice is a bad idea, what are we doing here?

Sunday, July 17, 2022

Sunday Reading

When Is A Child Not A Child? — Alexandra Petri in The Washington Post.

When is a child not a child?

A child is not a child when believing in her existence would force you to notice your own cruelty. When the story of a 10-year-old who had to cross state lines to end a pregnancy that was the product of rape, because the post-Roe laws in the state of Ohio are cruel enough to force birth on a child in her circumstances, is sufficiently monstrous that you want it to be unimaginable.

A child is not a child. She is a “hoax,” surely (Fox’s Jesse Watters). A “fanciful tale” in the words of the Wall Street Journal editorial board, “a story too good to confirm.” A story that “looks like a lie” (New York Post). An exaggerated concoction by pro-abortion forces designed to make you feel that your laws are inhuman, that they are vicious, that they are written by people to whom these things could never possibly happen, and therefore they are clumsy and careless in the most bruising possible way. She cannot be a child. Children are what your laws protect.

But then she is real after all. She is not a hoax. The story is true.

Then, a child is not a child simply because you are refusing to see her. Because you are trying to believe that what you were asking of her was not monstrous. In the words of the counsel for the National Right to Life, Jim Bopp, the man who should have thought about the people his words would affect as he wrote model laws for state legislatures looking to restrict abortion after Roe v. Wade, “She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child.”

Already, the child in this story is someone else! The 10-year-old child is not a child; she is a woman, one of “many women.” It is the fetus that is the child, now, the “baby.” The “benefit”! How convenient! How neat! How easily these words take a situation that is gruelingly, guttingly real and reduce it to a sanitary realm where there is not a victimized child anywhere to be seen. Just women (many women!) and babies and benefit.

A child is not a child when you are forcing her to give birth. She is a woman, suddenly, and the fetus is a baby. Presto, change-o! That’s not justice, it’s sleight of hand.

A child is not a child when she does exist but you cannot admit, now, that what you are forcing her to do is more than dangerous for someone in a body so young — it is monstrous. You scramble to make it sound as though a law that forces a 10-year-old assault victim to give birth is a good law, with benefits. Or that the law does not do what it says.

These are men who don’t know a child from a woman, a person from a womb on two legs, because they simply do not want to know.

This is the way they write these laws. Around actual people, and actual medicine, without a thought to the bloody and painful consequences. An ectopic pregnancy can be whisked elsewhere, in defiance of all medical science. If it’s a legitimate rape, the body has ways of shutting that whole thing down. Do not allow life, with all its tendency toward detail, to get in the way. Protect the children, at all costs. That 10-year-old is not a child, of course. She is a woman. The law is not for her. There are babies to consider! There are children to protect!

When is a child not a child? When you are choosing not to protect her.

But she is a child all the same.

The Department of Justice Must Prosecute Trump — Donald Ayer, Stuart M. Gerson, and Dennis Aftergut make the case in The Atlantic.

About the authors: Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush. Stuart M. Gerson served as assistant attorney general for the Civil Division of the Department of Justice from 1989 to 1993 and as acting attorney General in 1993. He is a member of the firm at Epstein Becker Green. Dennis Aftergut is a former federal prosecutor and former Chief Assistant City Attorney in San Francisco, currently Of Counsel to Lawyers Defending American Democracy.

After seven hearings held by the January 6 committee thus far this summer, doubts as to who is responsible have been resolved. The evidence is now overwhelming that Donald Trump was the driving force behind a massive criminal conspiracy to interfere with the official January 6 congressional proceeding and to defraud the United States of a fair election outcome.

The evidence is clearer and more robust than we as former federal prosecutors—two of us as Department of Justice officials in Republican administrations—thought possible before the hearings began. Trump was not just a willing beneficiary of a complex plot in which others played most of the primary roles. While in office, he himself was the principal actor in nearly all of its phases, personally executing key parts of most of its elements and aware of or involved in its worst features, including the use of violence on Capitol Hill. Most remarkably, he did so over vehement objections raised at every turn, even by his sycophantic and loyal handpicked team. This was Trump’s project all along.

Everyone knew before the hearings began that we were dealing with perhaps the gravest imaginable offense against the nation short of secession—a serious nationwide effort pursued at multiple levels to overturn the unambiguous outcome of a national election. We all knew as well that efforts were and are unfolding nationwide to change laws and undermine electoral processes with the specific objective of succeeding at the same project in 2024 and after. But each hearing has sharpened our understanding that Donald Trump himself is the one who made it happen.

As former prosecutors, we recognize the legitimacy of concerns that electoral winners prosecuting their defeated opponents may look like something out of a banana republic rather than the United States of America; that doing so might be viewed as opening the door to prosecutorial retaliation by future presidential winners; and that, in the case of this former president, it might lead to civil unrest.

But given the record now before us, all of these considerations must give way to the urgency of achieving a public reckoning for Donald Trump. The damage to America’s future that would be inflicted by giving him a pass far outweighs the risks of prosecuting him.

The committee’s evidence to date establishes multiple significant points for prosecutors. (A comprehensive summary of the evidence—offense by offense—is available at Just Security’s “Criminal Evidence Tracker.”)

First, contrary to speculation that Trump may have genuinely believed he won the election, and thus in his own mind was seeking rough justice in trying to change the outcome, the committee has demonstrated repeatedly that he knew beyond all doubt that he had lost fair and square. Trump’s former attorney general Bill Barr told the president that claims of widespread voter fraud were “bullshit.” Numerous reinforcements of that message were delivered by many others, including Barr’s successor, former Acting Attorney General Jeffrey Rosen; former Deputy Attorney General Richard Donoghue; and multiple Trump-campaign officials.

Second, Trump’s involvement in carrying out the scheme was systematic, expansive, and extraordinarily personal. As if to illustrate how personal his intervention was (and is), Republican Liz Cheney, the committee’s vice chair and the representative from Wyoming, dropped a bombshell at the end of Tuesday’s hearing: Sometime since the previous hearing on June 28, Trump himself had contacted a witness, something that his lawyers certainly could have told him could easily lead to charges of witness tampering. Cheney announced that the committee has notified the Justice Department of Trump’s latest misconduct.

The committee’s previous hearings showed that in the months after the 2020 election, Trump himself—not some aide or lawyer or other ally—tried to interfere with the state vote-counting processes. Among the most memorable incidents was his 67-minute January 2 call to Georgia Secretary of State Brad Raffensberger asking him to “find” 11,780 nonexistent votes, creating a Trump win. Trump himself also called to try to influence the state’s chief elections investigator, Frances Watson, and spoke with Georgia Governor Brian Kemp to urge him to call a special legislative session to appoint alternative electors.

There is also evidence that Trump spoke with Republican Pennsylvania House Speaker Bryan Cutler after he had declined repeated calls from Rudy Giuliani and Jenna Ellis, two Trump-campaign attorneys, to bring the legislature into session to decertify the state’s election results. And Republican National Committee chair Ronna McDaniel and Arizona House Speaker Rusty Bowers, also a Republican, both testified that Trump phoned them in December to ask for their help in implementing the infamous bogus-elector scheme. (John Eastman, another Trump lawyer, and Giuliani were also involved with those calls.)

Trump tried persistently to obtain the help of the Department of Justice in creating a false public impression that the election had been fraudulent. After he failed in mid-December to persuade Bill Barr to assert election fraud, Trump called Rosen, Barr’s successor, nearly every day in the same pursuit. And when this effort too failed, at a White House meeting on January 3, he undertook to replace Rosen with Jeffrey Clark, a second-tier DOJ official whom Trump had spoken with personally and found more compliant. This effort failed only when Donoghue and Rosen told Trump that the entire department’s leadership would resign if Clark were installed.

Crucial to the whole plot, of course, was the unlawful scheme to pressure Vice President Mike Pence into rejecting or delaying the electoral count. Multiple witnesses testified about being present to hear Trump’s “heated” call with Pence on the morning of January 6. One witness said that Trump called Pence a “wimp.” Ivanka Trump testified that she had never previously heard her father treat Pence that way, and she told another witness that Trump had used the “P-word” to denigrate the vice president’s manhood.

Ample evidence has also shown Trump well knew that Pence could not properly do as Trump urged. Mike Pence’s counsel, Greg Jacob, testified that Trump was present at a January 4 White House meeting where John Eastman admitted the unlawfulness of his and Trump’s plan to have the vice president not certify the electoral count two days later.

A third significant point for prosecutors is that the hearings have put into sharp focus Trump’s personal involvement and advance knowledge of the dangerous circumstances surrounding the January 6 insurrection. Cassidy Hutchinson, who was the principal aide to Chief of Staff Mark Meadows, testified that she overheard Trump complain just before his January 6 speech on the Ellipse that supporters were not being allowed into the security area for his speech while armed, and thus were staying outside. She recalled Trump asking to have the magnetometers removed, saying that he did not care if attendees were armed, because “they’re not here to hurt me.”

Hutchinson also testified that Trump expected to go to the Capitol after his speech and was angry when the Secret Service denied his request to do so, testimony that others have corroborated. He wanted to be part of and lead an armed mob aimed, at minimum, at intimidating Congress and Mike Pence. That is significant evidence demonstrating criminal intent in connection with the crime of inciting an insurrection. Told that the mob had threatened to hang the vice president, Trump apparently responded that he “deserves” it.

Finally, the committee has persuasively established that Trump continued to facilitate the insurrection, even after he returned to the White House once the Secret Service refused to take him to Capitol Hill. Chair of the Joint Chiefs of Staff Mark Milley testified that during the violence, Pence called him to request the National Guard to restore order; Trump made no such call. In fact, Trump did nothing for more than three hours to quell the insurrectionists.

To the contrary, Deputy White House Press Secretary Sarah Matthews testified that by tweeting that Pence “didn’t have the courage to do what should have been done” to overturn the election, Trump was “pouring gasoline on the fire.”

All of that was enough to show Trump’s personal leadership of the Big Lie effort and his complicity in the violence of January 6. But in addition, at Tuesday’s hearing, the committee focused attention on Trump’s December 19 tweet inviting his supporters to a “big protest in D.C. on January 6th.” He added, “Be there, will be wild!” The committee showed evidence of communications among the militant Oath Keepers, Proud Boys, and Three Percenters hours after the tweet demonstrating that it was the signal that prompted previously unaligned groups to cooperate in developing military-style operational tactics for the violent Capitol invasion.

In assessing the importance and priority to be given to a DOJ decision to prosecute, the Justice Department Manual lists three factors with special relevance here: “the nature and seriousness of the offense,” “the deterrent effect of the prosecution,” and “the person’s culpability in connection with the offense.”

On the first point, it is hard to imagine an offense that would more urgently call for criminal accountability by federal prosecution than a concerted and nearly successful effort to overthrow the result of a presidential election. It is an offense against the entire nation, by which Trump sought to reverse a 235-year-old constitutional tradition of presidential power transferring lawfully and peacefully.

The fact that a related state grand-jury investigation is proceeding in Fulton County, Georgia, relating to the part of the plot aimed at the Georgia vote count and certification process does not alter or lessen the urgency of this federal interest. Separate state and federal prosecutions can and should proceed when federal interests are as strong or stronger than the local interest.

Nor can there be any doubt about the crucial need to deter future attempts to overthrow the government. For the past 18 months, and presently, Trump himself and his supporters have been engaged in concerted efforts across the country to prepare for a similar, but better-planned, effort to overcome the minority status of Trump’s support and put him back in the White House. Moreover, if the efforts of the former president and his supporters garner a pass from the federal authorities, even in the face of such overwhelming evidence, Trump will not be the only one ready to play this game for another round.

As many have pointed out, deterrence requires that the quest for accountability succeed in achieving a conviction before a jury—here most likely made up of citizens of the District of Columbia. And the Department’s regulations make the odds of the prosecution’s success an important consideration in determining whether to go forward. In the case of a person who has made a career out of escaping the consequences of his misconduct, this is no small issue for the attorney general to take into account.

But as former prosecutors, we have faith that the evidence of personal culpability is so overwhelming that the case can be made to the satisfaction of such a jury. One of us—Gerson—has tried many difficult cases before D.C. juries with success. As a defendant, Donald Trump would open the door to all sorts of things that wouldn’t come into a normal trial, and the prosecutor could have a field day in argument about how this would-be tyrant tried to overthrow the government that has kept our nation free for two and a quarter centuries. Bottom line: Given what is at stake, even with the risk of a hung jury—leaving room for a second trial—there is no realistic alternative but to go forward.

Any argument that Donald Trump lacked provable criminal intent is contradicted by the facts elicited by the January 6 committee. And the tradition of not prosecuting a former president must yield to the manifest need to protect our constitutional form of government and to ensure that the violent effort to overthrow it is never repeated.

Doonesbury — Bird hunting.

Sunday, May 15, 2022

Sunday Reading

That’s Original — Fabio Bertoni in The New Yorker on Samuel Alito’s  idea of originialism.

Twenty years ago, when my kids were little, and we went on long drives, my wife and I would play an audiotape of the Amelia Bedelia stories, by Peggy Parish, to keep them occupied. Amelia Bedelia is a housekeeper who goes to work for a rich couple. They give her instructions—dust the furniture, draw the drapes, put out the lights—that Amelia, being extremely literal-minded, interprets exactly the wrong way. She pours dust on the furniture; draws a picture of the drapes; puts all the lights outside. The couple comes home to the chaos, and resolves to fire poor Amelia—until they taste a pie that she has made. It is so delicious that they can’t bear to let her go.

Our kids loved the wordplay and, of course, the foolish adults. They got the joke. After several hundred listenings, however, it dawned on me: Amelia Bedelia, as others have noted, knows precisely what she is doing. She’s an anarchist, an agent of chaos, and is intentionally punishing the rich couple for some conduct deep in the untold backstory of the series. No reasonable person can use words that literally, with no awareness of how words can have multiple meanings. Even children know that the phrase “catch the school bus” doesn’t refer to grabbing a large yellow vehicle flying through the air. Amelia Bedelia, a functioning adult who manages to get to work each day, surely also understands the figurative use of language, and is simply pretending not to in order to achieve her own nefarious ends.

As a then-recent graduate of law school, I soon had another realization: this narrow focus on a certain understanding of words, to the exclusion of all others, is a close cousin to originalism, a distinctly conservative strain of thinking in constitutional law that was championed and popularized by the late Supreme Court Justice Antonin Scalia. Originalists argue that their thinking is uniquely rigorous and coherent. They believe that it is possible, even imperative, to identify the proper meaning and interpretation of the Constitution by adhering strictly to the text and to the intentions of the men who wrote it. Originalists scoff at the notion of a “living Constitution,” a document whose meaning has changed and expanded with time and evolving circumstances. Only softheaded liberals, they say, believe that due process encompasses foggy notions and words unmentioned in the Constitution—words such as “privacy.” If something isn’t specifically articulated in the Constitution, any attempt to find it there is entirely speculative—or, as Justice Scalia put it, “pure applesauce.”

By the nineteen-eighties, originalism had become the dominant legal ideology of the right. It allowed conservative legal scholars and judges to claim a higher ground of objectivity and neutrality: they were simply applying what the Framers intended when they wrote the document. Conversely, it enabled them to label federal judges who sought to expand rights or powers of the Constitution as “activist judges”—effectively, as unelected legislators who would bend the language of the Constitution, in order to reshape society to fit a vision of liberal utopia.

But the recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Supreme Court Justice Samuel Alito, and an earlier federal decision by Judge Kathryn Kimball Mizelle, in Florida, outlawing the federal mask mandate on airplanes, reveal the dishonesty inherent in the originalism idea. In fact, it appears that, much the way that many Republicans are dropping any pretense of civil decorum or anti-bigotry in order to appeal to radical elements of the base, many conservative judges are leaning into the bare-knuckled, results-oriented jurisprudence to take them in the direction that they want to go: backward.

Justice Alito, in his draft opinion, argues that, because he can find no reference to abortion in the Constitution, and because there was no widely established right to abortion in 1868, at the time of ratification of the Fourteenth Amendment (which contains the due-process clause that Roe v. Wade holds includes the right to privacy), there is no basis for finding that the Constitution protects any such right. That’s not what “due process” means, Alito maintains, because it’s not reflected in the historical record he selectively cites. Like Amelia Bedelia, he latches onto a specific, fixed meaning within the Constitution, and refuses to consider any broader possible meaning. And while, strictly speaking, Amelia Bedelia may be more of a textualist (relying solely on the words themselves) than an originalist (seeking to understand what the words meant at the time that they were used), the utter disregard for destructive outcomes is the same.

What’s clear now is that the destruction is the intent. Originalism is just a clever trick of perspective. If you narrow your vision to look only for specific words that people used when the Constitution was drafted, you will always be engaged in a process of halting progress beyond that moment in time. Was there gay marriage in 1868? No? Well then, due process obviously doesn’t protect any right to marriage equality. You freeze recognition of rights as of the nineteenth century, while claiming to be neutrally applying interpretive principles to reach that conclusion. Of course, in order to achieve this result, you absolutely may not widen the perspective to consider the ultimate goals inherent in the Constitution. The question of whether the Framers (or the Constitution itself) contemplated an idea of securing the right to bodily autonomy is prohibited. Don’t ask whether it makes sense to apply eighteenth-century notions of personhood to a twenty-first-century country. Ask only whether the Constitution mentions “abortion.”

Alito, of course, already knew the answer to that—we all did. Both the question, and the analysis, are disingenuous. His ninety-plus-page opinion, citing some ancient (and bizarre) sources, merely attempts to obscure it. That is the point of originalism, and it explains why so many right-wing lawyers and judges cling to it. The solutions to complex issues are rendered simple, predetermined. In other words, originalism is not neutral and never has been. It is a political tool designed to halt progress.

Originalists argue that it’s not their fault that the drafters may have been slaveholders, or uniformly male, or white, or without any knowledge of contemporary technology or a more inclusive notion of humanity. Them’s the breaks; mere accidents of history. Or they argue that they are only interpreting the law as written. If you want to change the law, they say, that’s the role of the legislature, not the judiciary. But that, too, is a profoundly dishonest response. To say that is to say that the Dred Scott case was correctly decided when it was written, in 1857. At that time, as Justice Roger Taney wrote, Black people “had no rights which the White man was bound to respect.” That holding is now universally regarded as one of the most shameful in Supreme Court history. It is an object lesson in the misapplication of legal principles to profoundly inhuman ends. Black Americans should have been entitled to full citizenship, and to all the protections of the Constitution, from the moment the country was founded. Our legal system, however, didn’t recognize their rights, and that failure is the great crime of this country’s founding. The logic of originalism, as expressed in Alito’s draft opinion, would mean that Black Americans should not have been entitled to citizenship, or to their full humanity, until the civil-rights amendments said so. To say that the law is correct because it’s what the law says, is, at best, circular, and, in many instances, monstrous.

And, as Judge Mizelle’s ruling in Florida shows, crafting legislation that overcomes conservatives’ determined misreading of it is virtually impossible. Mizelle, a Trump appointee, held that the Centers for Disease Control and Prevention had exceeded its authority in issuing a mask mandate on airplanes, because the law creating the C.D.C. only authorizes the agency to issue public-health regulations regarding “inspection, fumigation, disinfection, sanitation, pest extermination,” and the destruction of infected or contaminated “animals or articles.” Mizelle reasoned that because masks don’t do any of those things—they don’t fumigate, or disinfect, or sanitize; they merely trap particles containing the virus—the C.D.C. has no authority to require passengers to wear them. The question, according to Mizelle, is not whether masks are effective in preventing the spread of COVID-19 across state lines, or whether they are still necessary as a policy matter. It is whether the statute grants the C.D.C. the authority to have an opinion about masks in the first place. Notwithstanding the fact that it’s right there in the name (Centers for Disease Control), Mizelle says that the words of the statute don’t cover masks. Originalism told her so.

With regard to bodily autonomy, women must be entitled to it, irrespective of whether the Constitution explicitly provides for it. If not, why should we believe Justice Alito’s assertion, in his draft opinion, that overturning Roe would not affect contraception, or gay marriage, or interracial marriage—all of which depend on an understanding of notions of autonomy, or privacy, that fall within “due process”?

Some legal scholars and judges question whether the due-process clause is the best vehicle for protecting privacy. Perhaps, instead, it is the Tenth Amendment, which suggests that there are rights unmentioned in the Constitution that are reserved “by the people.” But, without some constitutional protection for bodily autonomy, or privacy, which would cover these profoundly personal issues, what is there to prevent the state from, say, requiring you to give up a kidney in order to save someone else’s life? Would Alito argue that, because the Constitution is silent on compulsory kidney donation, it’s not prohibited? Isn’t that the flip side of requiring someone to carry a fetus to term unwillingly (and often at risk of illness or death)? If a surgeon were to show up on an originalist’s doorstep with a scalpel and a cooler filled with ice, I doubt that originalist would just sigh and lift his shirt.

Surely, then, the right to bodily autonomy, or privacy, is inherent in the essential freedoms contained in the Constitution. None of the other rights—such as the First Amendment right to the “freedom of speech,” or “peaceably to assemble,” or the Fourth Amendment right of the people to be “secure in their persons”—make sense without a right to control our bodies. But the denial of rights is the point. The originalist project is not the neutral application of interpretive principles but an effort to thwart progress at all costs. The result will always be that some Americans will forever be struggling to catch up with the rights that others have had from the very start.

Doonesbury — On the job.

Tuesday, March 29, 2022

Here Comes The Judge

From the New York Times:

WASHINGTON — A federal judge ruled on Monday that former President Donald J. Trump and a lawyer who had advised him on how to overturn the 2020 election most likely had committed felonies, including obstructing the work of Congress and conspiring to defraud the United States.

The judge’s comments in the civil case of the lawyer, John Eastman, marked a significant breakthrough for the House committee investigating the Jan. 6 attack on the Capitol. The committee, which is weighing making a criminal referral to the Justice Department, had used a filing in the case to lay out the crimes it believed Mr. Trump might have committed.

Mr. Trump has not been charged with any crime, and the judge’s ruling had no immediate, practical legal effect on him. But it essentially ratified the committee’s argument that Mr. Trump’s efforts to block Congress from certifying Joseph R. Biden Jr.’s Electoral College victory could well rise to the level of a criminal conspiracy.

“The illegality of the plan was obvious,” wrote Judge David O. Carter of the Central District of California. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”

The actions taken by Mr. Trump and Mr. Eastman, Judge Carter found, amounted to “a coup in search of a legal theory.”

The Justice Department has been conducting a wide-ranging investigation of the Capitol assault but has given no public indication that it is considering a criminal case against Mr. Trump. A criminal referral from the House committee could increase pressure on Attorney General Merrick B. Garland to do so.

The judge’s ruling came as the committee was barreling ahead with its investigation. This week alone, people familiar with the investigation said, the panel has lined up testimony from four top Trump White House officials, including Jared Kushner, the former president’s son-in-law and adviser, whose interview was scheduled for Thursday.

The committee also voted 9 to 0 on Monday night to recommend criminal contempt of Congress charges against two other allies of Mr. Trump — Peter Navarro, a former White House adviser, and Dan Scavino Jr., a former deputy chief of staff — for their participation in efforts to overturn the 2020 election and their subsequent refusal to comply with the panel’s subpoenas. The matter now moves to the Rules Committee, then the full House. If it passes there, the Justice Department will decide whether to charge the men. A contempt of Congress charge carries a penalty of up to a year in jail.

I’d like to think that this matters, but when “Morning Joe” leads off with headlines about Will Smith and Chris Rock, I don’t think the public is paying attention.

In a way, it’s understandable.  The ruling came from a civil court regarding whether or not John Eastman had to turn over documents to the House committee investigating the insurrection, so his opinion on criminal matters are tangential to the case.  But as the article noted, this puts pressure on the Justice Department to consider criminal charges.

There’s a chorus of folks who think that Attorney General Merrick Garland isn’t doing enough to bring Trump and his minions to justice.  At least they’re not hinting that they’re doing anything.  But unlike some prior administrations, this DOJ seems pretty leak-proof, and the House Committee is moving along at a legal pace that may frustrate those who expect the episode to wrap up in an hour including commercials.  And even if the Republicans take over Congress in November and disband the committee, they will have referred their materials and evidence to the DOJ, and they’re not going anywhere just yet.

Waiting this out may be maddening, especially those of us who would love to see a frog-march across the lawn at Mar-a-lago.  But haste can screw things up; they need to make the case solid enough to stand up to whomever is on the next team of lawyers that draw the short straw to defend Trump.

Monday, February 28, 2022

The Defender

Charles P. Pierce on Ketanji Brown Jackson’s promise to public defenders.

I have a college friend who spent 30-odd years as a public defender in Cook County in Illinois. Times and Cook County both being what they are, she did not lack for clients. Once, she helped get an innocent man off death row, which is enough for one legal career. Public defenders are a miracle of what our judicial system is actually supposed to be. For decades, the idea of a publicly supported defense bar was an ad hoc patchwork of local operations, most of which were fiercely opposed by the private defense bar of their various localities. It wasn’t until the landmark 1963 Supreme Court in Gideon v. Wainwright, and its subsequent progeny, that systems of public defenders were formalized.

Public defenders are overworked and underpaid. They are often attacked by law-n-order politicians looking for a cheap soundbite. Private defense attorneys often look at them as idiot second cousins. But, without them, the Sixth Amendment is only half-alive. And now they have one of their own headed for the Supreme Court. From the New York Times:

President Biden has selected Judge Ketanji Brown Jackson as his nominee to the Supreme Court, two people familiar with his decision said, choosing a well-regarded federal appeals court judge who if confirmed would make history by becoming the first Black woman to serve as a justice.

Jackson is Harvard/Harvard Law, but she also spent several years as a federal public defender. The experience gave her a valuable perspective on how the judicial system can steamroll defendants without even knowing it’s doing so. When testifying in her confirmation hearings for the D.C. Court of Appeals, she spoke to this problem, telling the Senate committee:

They had just been through the most consequential proceedings in their lives, and no one really explained to them what they were supposed to expect.

I expect the confirmation process to be a rough ride. I know that Senators Lindsey Graham and Susan Collins voted in Jackson’s favor when she was nominated to her current gig, but anyone who has been half-awake over the past seven years knows that those two are pretty thin reeds on which to hang your hopes for bipartisan comity. And I suspect some of the others have been spoiling for revenge ever since the Kavanaugh circus struck the tents. I’ll never rely on the good faith of Graham or Collins, but I’d bet your house always on the insatiable Republican appetite for engineered grievance and vengeance. Hell, Graham didn’t even make it until the official announcement on Friday.

If media reports are accurate, and Judge Jackson has been chosen as the Supreme Court nominee to replace Justice Breyer, it means the radical Left has won President Biden over yet again.

One of Jackson’s clients as a federal public defender was a Guantanamo detainee, so I suspect we’ll hear some raving about that. She wrote a couple of decisions that inconvenienced the previous administration*, and those will be twisted beyond all recognition. And she’s had a couple of high-profile decisions reversed on appeal, which undoubtedly will be used to demonstrate that she is less than qualified, although that will not be the real reason she is considered “unqualified,” and you and I and the ghost of Roger Taney know it.

For a long time, though, I’ve thought that the Supreme Court needed justices with a more varied life experience. This is no brilliant insight on my part. Legal scholars long have expressed concern that the Supreme Court is being staffed out of a very limited hothouse. This is particularly true of the members of the current conservative majority, particularly its three newest justices. As the first Black woman nominated to the Court, Jackson breaks the mold in the most obvious way possible. But the relative unconventionality of her CV is just as important. Thousands of young Black girls who want to go to law school might now have a role model at the highest level of that profession. But also, lawyers like my friend, Jan, laboring in the trenches for three decades, overworked and underpaid, but keeping the faint flame of equal justice under law alight in the law’s deepest corners, will have one of their own up there.

She will be worth the fight, and the people who can’t afford a lawyer — as in that part of the Miranda warning — will at least have someone on the court who could make a difference for them.

Friday, January 14, 2022

Happy Friday

The arc of justice may bend slowly, but it just grabbed this guy by the ass.

WASHINGTON (AP) — Stewart Rhodes, the founder and leader of the far-right Oath Keepers militia group, and 10 other members or associates have been charged with seditious conspiracy in the violent attack on the U.S. Capitol, authorities said Thursday.

Despite hundreds of charges already brought in the year since pro-Trump rioters stormed the Capitol in an effort to stop the certification of President Joe Biden’s 2020 election victory, these were the first seditious conspiracy charges levied in connection with the attack on Jan. 6, 2021.

It marked a serious escalation in the largest investigation in the Justice Department’s history – more than 700 people have been arrested and charged with federal crimes – and highlighted the work that has gone into piecing together the most complicated cases. The charges rebut, in part, the growing chorus of Republican lawmakers who have publicly challenged the seriousness of the insurrection, arguing that since no one had been charged yet with sedition or treason, it could not have been so violent.

The indictment alleges Oath Keepers for weeks discussed trying to overturn the election results and preparing for a siege by purchasing weapons and setting up battle plans. They repeatedly wrote in chats about the prospect of violence and the need, as Rhodes allegedly wrote in one text, “to scare the s—-out of” Congress. And on Jan. 6, the indictment alleges, they entered the Capitol building with the large crowds of rioters who stormed past police barriers and smashed windows, injuring dozens of officers and sending lawmakers running.

Authorities have said the Oath Keepers and their associates worked as if they were going to war, discussing weapons and training. Days before the attack, one defendant suggested in a text message getting a boat to ferry weapons across the Potomac River to their “waiting arms,” prosecutors say.

On Jan. 6, several members, wearing camouflaged combat attire, were seen on camera shouldering their way through the crowd and into the Capitol in a military-style stack formation, authorities say.

The indictment against Rhodes alleges Oath Keepers formed two teams, or “stacks,” that entered the Capitol. The first stack split up inside the building to separately go after the House and Senate. The second stack confronted officers inside the Capitol Rotunda, the indictment said. Outside Washington, the indictment alleges, the Oath Keepers had stationed two “quick reaction forces” that had guns “in support of their plot to stop the lawful transfer of power.”

But according to numerous mouths in the GOP, they were just tourists and happened to show up on January 6 to see the sights.

In other non-riot related news, I’ve added a collection of seven monologues to my website.  The poster is by Craig Houk.

Tuesday, January 11, 2022

Another Straw To Grasp

From Salon:

Congressional Democrats are eyeing a little-known constitutional mechanism to prevent former President Donald Trump from running for office again, citing his responsibility for the Jan. 6 Capitol riot and subsequent attacks on American democracy.

According to a new report in The Hill, at least a dozen Democratic lawmakers have been quietly speaking, both publicly and privately, about whether or not it would be possible to use Section 3 of the 14th Amendment to permanently ban Trump — or anyone else who participated in the planning or execution of the Jan. 6 Capitol attack — from seeking elected office in the future. The post-Civil War clause bars anyone who has engaged in “insurrection or rebellion” against the United States from seeking public office, and reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The theory gained credence in the days following the Capitol riot, but quickly fell by the wayside with the hope that Trump would eventually accept his election loss and disavow the violence of Jan. 6. With the one-year anniversary of the attacks now passed, and Trump’s false claims of a “stolen” election still at a fever pitch, it appears the idea is once again being discussed on Capitol Hill.

“If anything, the idea has waxed and waned,” said Laurence Tribe, a constitutional expert at Harvard Law School who has spoken previously about the 14th Amendment. “I hear it being raised with considerable frequency these days both by media commentators and by members of Congress and their staffs, some of whom have sought my advice on how to implement Section 3.”

He shared with The Hill the names of several lawmakers who have reached out in recent weeks for counsel on gaming out exactly how such a controversial tactic might be used. Those include Rep. Jamie Raskin (D-Md.), a member of the House select committee investigating Jan. 6; Rep. Jerry Nadler, D-N.Y., chairman of the House Judiciary Committee; and Rep. Debbie Wasserman Schultz, D-Fla., who told the outlet: “I continue to explore all legal paths to ensure that the people who tried to subvert our democracy are not in charge of it.”

Neither of the other two Democrats spoke with The Hill about their inquiries, though Raskin gave an interview last February in which he expressed his support for the premise.

“The point is that the constitutional purpose is clear, to keep people exactly like Donald Trump and other traitors to the union from holding public office,” he told ABC News, adding that he planned to conduct “more research” on the matter before pursuing it.

It’s unclear exactly how the implementation of such a provision might work — it would likely be the first time in well over a century that Section 3 has been discussed in Congress, after the body waived enforcement of the clause for Confederate officials and some Ku Klux Klan members as a way to promote national unity during the Reconstruction era.

Constitutional scholars are split over how execution of the rule would work, with one group arguing that a simple majority vote in both chambers of Congress that found Trump guilty of fomenting the insurrection would be enough to bar him from holding future public office.

Others, including Tribe, say that a “neutral” fact-finding body would have to determine whether Trump officially engaged in an “insurrection” or “rebellion” — a task for either a Congressional panel or federal court.

Frankly, I think the only thing that will stop him is the intervention of nature, and there’s never a pulmonary embolism around when you need it.

Thursday, January 6, 2022

The Past Is Prologue

Charles P. Pierce on Attorney General Garland’s speech yesterday:

There will be a general disappointment in some quarters that Attorney General Merrick Garland did not arrive for his speech on Wednesday with a chain of human heads behind him. This, I think, mistakes what the speech was really about.

First, it was a memorial of the first anniversary of the attempted overthrow of the 2020 presidential election. As such, there were elegiac elements to the address that were wholly appropriate. Second, nobody ever is going to mistake Merrick Garland for William Jennings Bryan. He burns no barns. He busts no blocks. He rouses no rabble. But it’s more than a little unfair to judge what he said Tuesday by either of those standards. He said a lot more than he’s usually given credit for saying. For example, this is a signifying paragraph:

“DOJ remains committed to holding ALL 1/6 perpetrators, at any level, accountable under the law whether they were present that day or were otherwise criminal responsible for the assault on our democracy. We’ll follow the facts wherever they lead…I understand that this may not be the answer some are looking for. But we will and we must speak through our work. Anything else jeopardizes the viability of our investigations and the civil liberties of our citizens.”

More pointedly, Garland cited the Watergate investigation in defense of the pace and mechanics of the Justice Department’s investigation. This is a lethally important point. There was a long period of time in which it seemed as though the actual investigation would never get past the White House gates. For example, back in 1974, there was tremendous impatience among the Democratic majority in the House of Representatives at how slowly they perceived the Judiciary Committee’s impeachment inquiry was moving. Yet, one day, committee counsel John Doar showed up with a binder containing his statement of the case against Richard Nixon, and the fight was over at that moment. It was thinking about John Doar that reminded me that Merrick Garland convicted both of the Oklahoma City bombers after an investigation that did not leak a drop.

It was a good speech that did everything it was supposed to do. It paid proper respect to the dead and wounded of January 6, 2021. It linked what the DOJ is doing now to the DOJ’s original purpose—which was to protect the lives, rights, and the franchise of newly freed Black citizens in the South in the years after the Civil War. In doing that, he tied the insurrection itself not only to the actions of the previous administration*, but also to the voter-suppression campaigns by Republican politicians that preceded January 6, but which has accelerated in the days since. He even cited John Doar’s work for Attorney General Robert Kennedy in working for voting rights in 1961.

It was a big circle, and Garland drew it perfectly.

Tuesday, January 4, 2022

Hold Them All Accountable

Wise words from Eugene Robinson:

One year ago, ours was a nation on the brink. We must never forget.

The first week of 2021 brought an unprecedented rupture in the democratic process that Americans have taken for granted since the election of John Adams in 1796. A sitting president, Donald Trump, was trying desperately to remain in office despite his defeat in a free and fair election. He summoned a mob to Washington as an intimidating show of force, and that violent mob — whipped into a frenzy by Trump and his cronies — stormed the Capitol to prevent Congress from certifying Trump’s loss.

Much has happened since, both domestically and in foreign affairs. Now, as then, the biggest factor in most Americans’ day-to-day lives is the disruption caused by the coronavirus pandemic. And the leadership of the Republican Party dearly wants us to forget that the Jan. 6 insurrection ever took place.

But the nation cannot just “move on” from such an attack on our constitutional order. Not since 1814, when British soldiers marched into Washington, had the Capitol been overrun and pillaged. Not even during the Civil War was the orderly transfer of presidential power disrupted. Never had a defeated presidential candidate — much less a defeated incumbent who had sworn to defend the Constitution — refused to accept the result of an election.

We need to know everything that is knowable about these events. And those who inspired, organized and committed the insurrection need to be brought to justice.


What happened last Jan. 6 was much bigger and more important than politics. And holding accountable the perpetrators of this attack on our democracy must take precedence over any political concerns. This is bigger than who wins the midterm elections or who runs for president in 2024. This project of reckoning is about the continuation of the American experiment.

Actually, there are three simultaneous accountability projects whose success the American people must demand.

The House select committee investigating the attack (appointed by Pelosi only after Republicans refused to form a proper blue-ribbon commission) appears to be doing an admirable job of collecting new information, including about Trump’s actions that day. The committee must not let stonewalling by Trump and his inner circle cause delay — a full year has already passed. It is good that the committee plans to issue an interim report this summer but, in the meantime, it should hold public hearings and release as much information as possible. Their work is not just important but also urgent.

Simultaneously, Congress as a whole must shore up the weaknesses in our transfer-of-power process exposed by the insurrection. The mob’s aim was to halt the official counting of electoral votes — and the mob succeeded, at least for several hours. Even the libertarian Cato Institute agrees that the 1876 Electoral Count Act is “a mess of ambiguities and contradictions” and needs to be reformed. Legislation to do so should begin making its way toward Biden’s desk.

Meanwhile, the Justice Department must continue to press criminal charges against the insurrectionists. It is not enough to prosecute and sentence those who participated bodily in the assault. The puppet masters who assembled the crowd and sent it off to sack the Capitol must be held to account as well.

And no one, including Trump, can be considered above the law.

I know there are a lot of people who are frustrated at the slow pace of the investigation; they want the perps brought to trial as quickly as we see it on TV. But “Law & Order” is fiction, even if it is “ripped from the headlines,” and justice doesn’t happen in an hour.

Friday, December 10, 2021

So Ordered

The D.C. Circuit Court hands Trump his ass.

A federal appeals court on Thursday resoundingly rejected former president Donald Trump’s bid to keep his White House documents secret from a congressional committee investigating the Jan. 6 attack on the Capitol, setting up an emergency Supreme Court review.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld a lower court’s opinion, which said that in a dispute between a current and past president over whether to release White House records, the sitting president must prevail.

In blunt and at times blistering language, Judges Patricia A. Millett, Robert L. Wilkins and Ketanji Brown Jackson denied Trump’s request for a preliminary injunction blocking the National Archives and Records Administration from releasing the first roughly 800 pages of disputed Trump papers after President Biden declined to assert executive privilege as requested by his predecessor, setting up the first of its kind constitutional controversy.

“Lives were lost, blood was shed; portions of the Capitol building were badly damaged; and the lives of members of the House and Senate, as well as aides, staffers, and others who were working in the building, were endangered,” the court said of the riots that stalled Congress’s confirmation of the 2020 election results, adding, “There is a direct linkage between the former President and the events of the day.”

At the same time, the 68-page opinion continued, “Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the Executive Branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.”

Writing for the court, Millett concluded, “Benjamin Franklin said, at the founding, that we have ‘[a] Republic — if [we] can keep it.’ The events of January 6th exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic.”

Next stop: The Supreme Court.

Wednesday, November 24, 2021

The Arc Of Justice

“I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice.” – Theodore Parker (1810-1860)

Friday, November 19, 2021

No Surprise

The verdict says more about us than it does about him: he’s a white kid who can carry an AR-15 in the middle of a demonstration and shoot people with impunity. If he were Black or Latino, his funeral would have been the next afternoon.

Friday, November 12, 2021

Let That Be A Lesson To You

To all the rest of you Trumpers who are thinking you can avoid testifying and get away with it

Former White House adviser Stephen K. Bannon was charged Friday with contempt of Congress after refusing to comply with a subpoena from the House committee investigating the Jan. 6 attack on Congress.

He was indicted by a grand jury in Washington.

Attorney General Merrick Garland said the charges reflect the Justice Department’s commitment to “show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law.”

Bannon, 67, was subpoenaed on Sept. 23, one of a number of former advisers to President Donald Trump who have balked at answering the select committee’s questions about the events before and during the riot that sought to prevent Congress from formally certifying the election of President Biden.

And for the inevitable musical accompaniment…

Wednesday, November 10, 2021


We’re getting closer to getting the evidence.  Via TPM:

The ruling out tonight from US District Judge Tanya Chutkan is a big one. The decision can and certainly will be appealed. Trump actually tried to appeal the decision in advance of it even coming out. But Chutkan’s ruling vindicates the principle – long assumed and all but inevitable in the logic of the constitution and the office of the presidency it creates – that decisions about executive privilege inhere in the office and thus the current occupant of the office. Which is to say, Joe Biden.

As Chutkan puts it succintly: “Presidents are not kings, and Plaintiff is not President.”

Josh Kovensky has more details and analysis of the ruling here. I recommend his piece to you. But the key is her finding that since the Executive branch and Congress are in full agreement about what should happen, that really settles it – “the combined will of the legislative and executive branches to study the events that led to and occurred on Jan 6…” There’s no dispute between any parties with any standing to dispute anything. The National Archives must begin producing the documents by Friday.

Trump is just a private citizen who used to have the powers exercised today by Joe Biden. Elections have consequences.

As noted, the battle will be continued in appeal, probably dragging out to next summer, but it’s inevitable that at some point the committee will get them.

There’s another fight brewing: the subpoenas are piling up on the doorsteps of the Trump minions.  They’ll fight those, too, which means more court battles and delays.  But it’s going to happen.

Wednesday, July 28, 2021

We Must Hear It

I watched and listened to the hearing yesterday.  Afterward, I came to the same conclusion as Charles P. Pierce.  He says it better.

The body-cam videos. Always the body-cam videos.

Let the politicians bluster and fume. Let the unreconstructed bastards lie about what happened on January 6. Let the duplicitous pond scum create their own narrative out of their dark, unquenchable ambitions, and the carefully cultivated ignorance of their prime audiences. The body cams don’t lie. They’re hard to watch. They leave a hot, sour aftertaste of revulsion and rage. But they do not lie.

It’s strange, in a way. For years, police-reform activists pleaded for body cams to become mandatory in order to catch bad cops doing bad things, and to defeat orchestrated cover-ups by prosecutors, police unions, and the aforementioned bad cops. Now, here we are, watching the body-cam videos of the crimes of January 6, and the videos are irrefutable proof of the offenses committed against law-enforcement officers.

This is in no way to minimize the impact of the testimony given before the Select Committee investigating the insurrection by the officers who’d been invited to appear. You cannot dismiss the description of what happened to him offered by D.C. Metro police officer Michael Fanone:

But yet they tortured me. They beat me. I was struck with a taser device at the base of my skull numerous times. And they continued to do so, until I yelled out that I have kids.

You cannot dismiss DC Metro police officer Daniel Hodges’ description of the nightmarish moments in which he was trapped in a Capitol doorway at the mercy of the mob. “A meat grinder,” Hodges said, and he described how he’d hoped not to be pulled to the ground.

At worst, [I might] be dragged down into the crowd and lynched.

A thought that was never far from the minds of Capitol Police officer Harry Dunn and Capitol Police Sergeant Aquilino Gonell, two non-white officers who testified on Tuesday about the…ah…special attention lavished on them by the tourists on that memorable day. Dunn admitted making the mistake of telling the crazies that he had voted for Joe Biden. Then came the response:

Did you hear that, guys, that [N-word] voted for Joe Biden.

But Dunn wasn’t finished. He was looking behind the invective and the bear spray to the architects of this awful event.

If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does. There was an attack carried out on January 6th, and a hit man sent them. I want you to get to the bottom of that.

Gonell was even more specific.

It’s upsetting. It’s a pathetic excuse for his behavior, for something that he himself helped to create, this monstrosity. I’m still recovering from those hugs and kisses that day. If that was hugs and kisses, then we should all go to his house and do the same thing to him.

To me, it’s insulting, it’s demoralizing because everything that we did was to prevent everyone in the Capitol from getting hurt. And what he was doing instead of sending the military, instead of sending the support, or telling his people, his supporters to stop this nonsense, he egged them to continue fighting.

And they have the body-cam videos to back them up.

The former president* has to testify now. He has to be asked the tough questions, in some public forum, under oath. He has to be forced to watch the body-cam videos and to comment on them, to talk about how bear spray is a kiss and an improvised javelin is a hug, and how “shoot him with his own gun” is an expression of love and respect. The rest of them, too, of course—the little attendant rats, some of whom got hilariously run out of their own press conference on Tuesday as the officers were testifying elsewhere on Capitol Hill. (I’m no political consultant, but I’m willing to bet that, “Are you a pedophile?” is tops on the list of questions you do not want your client to field while pursued down a Washington street.) But Donald Trump has to be forced to confront what he did, and what he continues to do, to the country for which he does not give the smallest damn.

What disturbs me the most, beyond the cruelty and the brutality from the terrorists, is that we will move on, we will forget, we will change the channel, just as we do after a mass shooting.

Not only must we hear the testimony, we must not forget.

Thursday, July 8, 2021

A Fool For A Client

From TPM:

Ex-President Donald Trump, furious over his ban from Twitter, Facebook and YouTube after inciting a violent insurrection, is launching separate class-action lawsuits against the CEOs of those social media giants, Jack Dorsey and Mark Zuckerberg, respectively, along with Google CEO Sundar Pichai (Google owns YouTube).

Trump announced the lawsuits at his golf course in Bedminster, New Jersey on Wednesday in a rambling speech accusing the companies of “shameful censorship” and framing the suits as advocacy for “freedom of speech.”

The ex-president stated that he seeks to have his accounts restored and to collect “punitive damages” through the suits, which are filed in the U.S. District Court for the Southern District of Florida.

“Through this lawsuit, we are standing up for American democracy,” said Trump, who fought tooth and nail to overturn the will of the voters in the 2020 election by filing countless flimsy lawsuits and eventually encouraging his supporters to storm the Capitol as Congress was certifying Joe Biden’s electoral victory on January 6. That event proved to be the final straw for Facebook and Twitter.

Trump’s lawsuit against Zuckerberg is joined by Facebook users who were banned for violating the platform’s rules on spreading misinformation about COVID-19 and the vaccine. As such, the 44-page filing at one point attempts to legitimize MAGAland’s falsehoods about the pandemic by claiming that the Centers for Disease Control and Prevention’s expertise on COVID-19 was “highly questionable.” Even hydroxychloroquine, the anti-malarial drug Trump touted for months as a miracle drug for COVID-19, made an appearance in the filing.

Kate Klonick, an assistant professor of law at St. John’s University (and, full disclosure, a former TPM reporter!) said that Trump’s lawsuit gambit was “ludicrous on its face.”

Klonick, who researches legal issues around internet speech, pointed out that the suits don’t seem to grasp the basic principle of the First Amendment: that it protects against free speech infringement by the government, not bans by private social media companies.

“There’s just a bunch of misunderstandings of really fundamental aspects of the law here,” she told TPM.

You can read the text of the suit against Zuckerberg in the linked article. But rather than point out the fundamental flaws in the argument, and skipping over the clickbait fund-raising both Trump and his allied groups are doing with the suits, let me point out with no sense of pride whatsoever that the law office listed on the suit is located down here in Coral Gables. It makes me wonder what kind of conversation went on at that firm to get them to agree to take it on; not only to challenge the First Amendment with a specious argument that Facebook and Twitter are essentially part of the government, but to put their firm’s reputation on the line for a client who is infamous for not paying his bills. Did they get a whopping big retainer up front and waited until the check cleared before filing? What makes them think they won’t end up getting sanctioned by the Florida Bar Association for filing a frivolous suit, or that they have the resources to stay in business once they get laughed out of court, if not sanctioned by the court?

I realize that the canons of legal ethics require that an attorney must zealously defend his client to the full extent of the law, but there’s nothing in those canons that say they have to take the case in the first place.  But when you read about ridiculous lawsuits filed by people who want to sue God for ruining their day, remember that behind every whacky client, there’s an attorney who told them they could win.