Wednesday, February 7, 2024

Three Women Say No To Trump

From Charlie Pierce on the ruling by the D.C. Court of Appeals.

There was a time in our history, and not so very long ago, that the evaporation of a ludicrous legal claim in a federal appeals court would not rate a box on page 21 of the Metro section. But this is not then, so when El Caudillo del Mar-a-Lago brought his ludicrous claim on limitless presidential immunity before the D.C Court of Appeals, and when, after a substantial (and nerve-wracking) delay, the Court on Tuesday left that claim a pile of smoking meat on a back road, it was a veritable legal earthquake. Three women on the bench looked at the exalted claims of a guy who already has been judged a sexual predator and laughed in his face. From the decision:

Since then, hundreds of people who breached the Capitol on January 6, 2021, have been prosecuted and imprisoned. And on August 1, 2023, in Washington, D.C., former President Trump was charged in a four-count Indictment as a result of his actions challenging the election results and interfering with the sequence set forth in the Constitution for the transfer of power from one President to the next. Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution…

…“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count…

..At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment.

Moreover, the Appeals panel clearly has lost tolerance for the former president*’s well-worn strategies for running out the clock. It gave him until Monday to bring his case to the Supreme Court, or else it will all go back to Judge Tanya Chutkan for trial. (His lawyers may have to buy a new box of crayons.) And that low hum you hear is the slow revving of the machinery back there. The system is powering up again.

It’s a big week for big issues in the courts. On Thursday, the Supremes will hear oral arguments on whether or not states can deny the former president* a place on their ballots based on Section 3 of the 14th Amendment to the Constitution. Smart money says that they’ll find a way to duck the obvious constitutionality of that case, but that, now, they might not even agree to hear an appeal on the immunity case. The true danger would be a Supreme Court decision that shoves the case past the 2024 election on the calendar, which would raise the possibility of the case dying as a result of a Grifter Restoration. Hell, in that case, special counsel Jack Smith might find himself hauled away. The safe play is for the Supreme Court.

For the nonce, though, sanity and common sense are singing in tune, a rare melody in this cacophonous time. Of course, the indicted former president*’s camp has their story and they’re sticking to it. From The Hill:

“Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic. President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Trump campaign spokesperson Steven Cheung said in a statement.

The “respectful disagreement” lasted an entire paragraph.

“Deranged Jack Smith’s prosecution of President Trump for his Presidential, official acts is unconstitutional under the doctrine of Presidential Immunity and the Separation of Powers,” Cheung said.

“Deranged” Jack Smith has the whip hand again, and no matter how much the former president* and his lackeys bluster and fume, he’s got a good grip on it.

I’m surprised that they didn’t just say, “Are you fucking kidding me?” to each of the claims, but that’s what they meant.

Tuesday, January 9, 2024

The More You Know…

Charlie Pierce on what TFG knew and when he knew it.

Every president swears to preserve, protect, and defend the Constitution of the United States, and every printed copy of said Constitution says that one of its original purposes is to “insure domestic tranquility.”

“All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing. And stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up, we will never concede. It doesn’t happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.”—El Caudillo del Mar-A-Lago, January 6, 2021.

Nope. That’s not insuring domestic tranquility. Not a bit of it. I asked around.

Over the weekend, ABC reported some fascinating details about what the former president* was doing—spoiler: nothing helpful—while he was failing to insure domestic tranquility at the Capitol. The material came from filings from Jack Smith’s House Of White House Horrors, and it’s sourced to officials of the previous administration* who have been singing lovely songs to the special counsel’s office. These apparently included one Dan Scavino, a former deputy White House chief of staff, who quickly assumed the role of featured soloist in the State’s Evidence Choir.

Sources said Scavino told Smith’s investigators that as the violence began to escalate that day, Trump “was just not interested” in doing more to stop it. Sources also said former Trump aide Nick Luna told federal investigators that when Trump was informed that then-Vice President Mike Pence had to be rushed to a secure location, Trump responded, “So what?” — which sources said Luna saw as an unexpected willingness by Trump to let potential harm come to a longtime loyalist… Sources now describe to ABC News are the assessments and first-hand accounts of several of Trump’s own advisers who stood by him for years — and were among the few to directly engage with him throughout that day. Along with Scavino and Luna, that small group included then-Chief of Staff Mark Meadows, then-White House counsel Pat Cipollone, and Cipollone’s former deputy, Pat Philbin.

They’re all in it up to their eyebrows and they know it, and Jack Smith knows it, and now the court knows it, too.

According to sources, when speaking with Smith’s team, Scavino recalled telling Trump in a phone call the night of Jan. 6: “This is all your legacy here, and there’s smoke coming out of the Capitol.” Scavino hoped Trump would finally help facilitate a peaceful transfer of power, sources said… According to what sources said Scavino told Smith’s team, Trump was “very angry” that day — not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were “angry on his behalf.” Scavino described it all as “very unsettling,” sources said. At times, Trump just sat silently at the head of the table, with his arms folded and his eyes locked on the TV, Scavino recounted, sources said. After unsuccessfully trying for up to 20 minutes to persuade Trump to release some sort of calming statement, Scavino and others walked out of the dining room, leaving Trump alone, sources said. That’s when, according to sources, Trump posted a message on his Twitter account saying that Pence “didn’t have the courage to do what should have been done.”

Lovely. And then, we learn, the rats began running for the ratlines almost immediately.

Trump’s aides told investigators they were shocked by the post. Aside from Trump, Scavino was the only other person with access to Trump’s Twitter account, and he was often the one actually posting messages to it, so when the message about Pence popped up, Cipollone and another White House attorney raced to find Scavino, demanding to know why he would post that in the midst of such a precarious situation, sources said. Scavino said he was as blindsided by the post as they were, insisting to them, “I didn’t do it,” according to the sources. Some of Trump’s aides then returned to the dining room to explain to Trump that a public attack on Pence was “not what we need,” as Scavino put it to Smith’s team. “But it’s true,” Trump responded, sources told ABC News.

This is Mad King bullshit. This is the moment in which, a millennium or so ago, the Praetorian Guard would get together and discuss what shop in Rome had a special on poison that week. This is the moment in which, a century or two ago, banished earls and barons would get together and decide which of their exiled number could raise a big enough army to affect a change of dynasty. We are a civilized people, so we take the bastards to court, and hope that’s enough to keep us tranquil domestically.

More disturbing than this — if that’s possible — is the slavering of his followers and those who equate him with some supernatural messiah.  In any rational world, this would make even the most ardent backers flip and sing to the prosecution.  But this is not a rational world at the moment.

Wednesday, December 13, 2023

That’s Not How It Works

Charlie Pierce on “presidential immunity.”

Damn you, Jack Smith. Give a brother a chance to catch up. From the Washington Post:

Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election. Later Monday, the justices indicated they would decide quickly whether to hear the case, ordering Trump’s lawyers to respond by Dec. 20. The court’s brief order did not signal what it ultimately would do.

A federal judge ruled the case could go forward, but Trump said he would ask the federal appeals court in Washington to reverse that outcome. Smith is attempting to bypass the appeals court, the usual next step in the process, and have the Supreme Court take up the matter directly.

“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” prosecutors wrote.

Well, yes, it does. It also presents other fundamental questions. These are some of them.

Does the current carefully cultivated conservative majority on the Supreme Court possess even the slightest degree of integrity that God gave a goat? Does it recognize its duty as clearly as the Burger Court did in U.S. v. Nixon? Does it recognize that obvious fact that the former president’s lawyers dreamed up this “presidential immunity” out of the thin, foul air of Mar-a-Lago. Is its collective hive mind sharp enough to recognize an off-ramp when it sees one?

The last question is worth studying on a bit. The Court already has followed the Burger precedent in agreeing to hear the case at Smith’s request, bypassing the Appeals court and accelerating the process to a point that obviates the obvious stalling tactics employed by the mouthpieces for Fulton County (Ga.) Inmate No. P01135809. It also gives the Supreme Court a way to absent itself from the fray. If the Court decides for Smith, then it’s out of the hurly-burly until the inevitable appeal of the ultimate verdict. It can go back to its real work of cutting loopholes in the Constitution for the benefit of their various sugar daddies, for a while, anyway.

(And should Justice Clarence Thomas recuse himself from hearing this matter because his wife was so intimately involved in the events of January 6? Of course, he should, but he won’t, and it’s very unlikely that Chief Justice John Roberts would push him to do so.)

Underscoring the urgency for prosecutors in securing a quick resolution that can push the case forward, Smith and his team wrote: “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”

At issue is a Dec. 1 ruling from U.S. District Judge Tanya Chutkan that rejected arguments by Trump’s lawyers that he was immune from federal prosecution. In her order, Chutkan, who was appointed by President Barack Obama, wrote that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Keith Olbermann on his daily podcast made the very salient point that, if this fanciful theory were a real thing, then Richard Nixon wouldn’t have had Al Haig lobbying Gerald Ford for a pardon and Ford wouldn’t have needed to issue one, thereby torpedoing his presidency in its infancy. For that matter, Olbermann pointed out, if he really believed in “presidential immunity,” the former president* wouldn’t have publicly mused about pardoning himself. If you’re going to propose a bullshit constitutional principle, you should at least pretend you believe in it.

Smith’s team stressed that if the court did not expedite the matter, there would not be an opportunity to consider and resolve the question in the current term. “The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.” Prosecutors are also asking the court to take up Trump’s claim, also already rejected by Chutkan, that he cannot be prosecuted in court for conduct for which he was already impeached — and acquitted — before Congress.

At the very least, the Court seems to be taking Smith’s request seriously. It’s given the former president’s mouthpieces nine days to respond to Smith’s brief on the subject, which should be amusing anyway. And it’s important to remember that the Court already unanimously shredded this theory back in 2020, when it ruled that the then-president* was not absolutely immunized against a subpoena issued in New York regarding his business practices. During that case, Trump’s own lawyers argued that he was not permanently immune from subsequent prosecutions under state and federal law. It’s tough being one of the former president*’s lawyers. You’re strapped into a perpetual-motion professional Tilt-A-Whirl and there’s nobody at the controls.

The Supreme Court has been known to make up laws and their interpretations from the bench to suit their own interests or protect their asses (e.g. Bush v Gore).  I wouldn’t put it past them to come up with some whole new idea of what constitutes “official duties” that include an attempt to circumvent the Constitution and reinstate Trump and perhaps even Richard Nixon.  You can take the toad out of the swamp…

Wednesday, August 23, 2023

Simple Solution

Charlie Pierce:

A curious passage from the Washington Post.

As his legal troubles have mounted, his insults and attacks have continued. He has called Smith a “deranged lunatic” who “looks like a crackhead.” He said Chutkan “obviously wants me behind bars. VERY BIASED & UNFAIR!” He accused Fulton County, Ga., District Attorney Fani T. Willis (D), who brought the state-level election indictment, of having an affair with a gangster. Trump’s public comments have caused consternation among law enforcement officials worried about ensuring fair trials and the security of witnesses, prosecutors and court workers. Advisers say the Trump campaign sees a benefit in him testing boundaries by publicly attacking judges and prosecutors — either he gets away with it, or he gets to play the victim for being censored by the courts. Some of Trump’s political advisers said they are betting that judges will not risk the blowback of imposing sanctions on a major-party candidate.

The Post story examines the complications of disciplining a criminal defendant who also happens to be an ex-president* campaigning to be the next president*. It lines up some experts—well, two of them anyway—to explain the complications. Now, I am not a lawyer, nor an “expert,” but it seems to me that, at this point, the complications are fairly easily solved.

Slap him down. Hard.

As we have said before, there is no such constitutional office as “Former President*.” He’s just another citizen jamoke, like you and me and the guy who poured you your last pint on Saturday. If you, or I, or that barman were under indictment and behaved like The Defendant has behaved toward the criminal justice system, we’d have been hauled off to the sneezer days ago. To borrow a word that seems to be all the rage these days, it’s time to “normalize” the relationship between The Defendant and the institutions of the criminal justice system.

He’s already pole-vaulted over and beyond the cautions and restrictions placed on him by both Judge Tanya Chutkan in Washington and Judge Scott McAfee in Atlanta, as the Post makes perfectly plain. He arguably has incited threats against judges, prosecutors, and jurors. And his only defense is pure, unadulterated cynicism.

Advisers say the Trump campaign sees a benefit in him testing boundaries by publicly attacking judges and prosecutors — either he gets away with it, or he gets to play the victim for being censored by the courts. Some of Trump’s political advisers said they are betting that judges will not risk the blowback of imposing sanctions on a major-party candidate.

Let’s test that theory, shall we? Toss him in a cell. Slap a GPS tracker on one of his swollen ankles and confine him to his banana farm in Florida. Drop a multimegaton fine on him every time he goes batshit on social media. Freeze his assets. Treat him like a mob boss, a drug kingpin, or the leader of a terrorist cell because, in one way or another, he is all three of those things.

If his corporal’s guard of a legal team wants to litigate these measures, let them have at it. If his mouthbreathing devotees want to make trouble, point them towards the hundreds of people now doing time for what they did on January 6. If he wants to test the strength of the rule of law, let the rule of law at least give him a battle without tying its hands through timidity and anticipatory dread. It’s worth fighting for.

I hope he ends up in gen pop married to the guy with the most cigarettes.

Friday, August 4, 2023

Let The Games Begin

Except this is not a game; our very way of life and government is at stake.

I am old enough to remember every step of Watergate and thinking it couldn’t be any worse. Then this one comes along and says, “Hold my beer.” No, I do not celebrate, but I hope that we and our laws are strong enough to survive this time and maybe this time, unlike the last time, never forget what happened.

Happy Friday.

Wednesday, August 2, 2023

This Is The Real Thing

The E. Jean Carroll case was — and still is — real; Trump was found civilly liable for the charges and will have to pay a fine.  Since it’s a civil case, no jail time.  The classified documents case is real, and it’s making its way through the courts and could result in jail time for someone, but it is, at the end, a matter of disagreement between Trump and the National Archives and his wilful misunderstanding of the Presidential Records Act.

But what Jack Smith and the indictment that the DC grand jury handed up yesterday is the real thing.  Conviction means jail time, and probably not Club Fed.  And it contains detailed charges.  It also names several unindicted co-conspirators, unnamed in the charges.

Mr. Smith asked for a speedy trial date, which means that they are ready for trial on the prosecution side, and they have all of their files ready to be sent to defense counsel as part of the discovery phase.  I’m no lawyer, but if you’re this ready, you’ve got your case made, and it will be up to the defense to attempt to delay the trial.

You’re going to hear a lot of screeching from Trump’s supporters, and even from his opponents for the 2024 GOP presidential primary.  The current cry is that the indictment represents the “weaponization” of politics.  This was echoed by Gov. Ron DeSantis, the guy who used his office and the Florida legislature to punish the Walt Disney Company for speaking out against his policy of “Don’t Say Gay,” who gutted a Florida college of its governing board and replaced them with his sycophants because he didn’t like the curriculum, and who fired a duly-elected prosecutor because he didn’t promise to force women to carry a baby to term.  Well, at least he knows what “weaponization” is.

So now we get down to the real thing: making Trump accountable for his crimes, like every other perp who hears the door slamming behind them.

Charlie Pierce:

“If the gentleman pleases, he is at liberty to consider the whole trial as a piece of epic action, and to look forward to the appropriate catastrophe.” — William Wirt, for the defense in the trial of Aaron Burr, 1807

Aaron Burr’s last distinction in American history is now gone. He is no longer the only president or vice-president to be indicted for crimes against the nation he once served. The proof came on the first page of a 45-page document handed down on Tuesday from a grand jury in Washington, D.C.

The United States of America v. Donald J. Trump.

Sorry, Aaron. You’re still a major character in a hit musical, though, and you did introduce James Madison to the lovely Ms. Dolley Payne, so there’s that, anyway.

There are four counts to the indictment, all of them aimed at the former president*:

Conspiracy to defraud the United States “by using dishonesty, fraud and deceit to obstruct the nation’s process of collecting, counting, and certifying the results of the presidential election”; conspiracy to impede the Jan. 6 congressional proceeding; a conspiracy against the right to vote and to have that vote counted; and obstruction of, and attempt to obstruct and impede, the certification of the electoral vote.

In the indictment, Jack Smith’s grand jury refers to six co-conspirators, none of whom are named, but most of their identities are easily puzzled out by those of us who have lived through this whole goddamn circus since January of 2017. For example, there is a reference to Conspirator No. 2 as

“An attorney who devised and attempted to implement a strategy to leverage the vice-president’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.”

I’m no detective, but if Conspirator No. 2’s name doesn’t rhyme with Lawn Beastman, I will eat a copy of Blackstone.

In fact, it is in its precision where lies this indictment’s real power. In no place, does Smith get out over his skis. It is monumental as a historical document, but, as a legal document, it is carefully crafted, almost delicately etched. For example, there is no talk of citing the former president* for treason or for insurrection. Smith clearly has crafted an indictment precisely drawn to conform to the whopping silo of evidence he has compiled and nothing else. And it is precisely drawn to sit the former president* down under a swinging lightbulb in a dark interrogation room.

There is very little room for the defendant to breathe. Consider, for example, the detailed account of how all sorts of government officials told the former president* that he was spreading lies about election fraud, and how the former president* went right on spreading them. For this, in part, I think we can thank Mike Pence. Down on Page 35, there is an account of a meeting between the former president*, Pence, and the White House lawyer whose name rhymes with Lawn Beastman. Trump is trying desperately to sell Pence on his ability to reject the votes of the electoral college. Pence resists the whole notion and, a little while later, the former president* said publicly that Pence agreed with him. The question of whether or not the former president* knew he was dishing out truthless poison is now closed.

More about this tomorrow, surely. Tomorrow, and tomorrow, and tomorrow. Certainly, the violence of January 6 is dealt with at the very end, and only as a byproduct of the ongoing conspiracies charged. There is the real possibility that the hammer will fall on the six co-conspirators. And there are the intriguing references to senators who were contacted by the conspirators. There is thunder in this indictment that will echo for decades, and that’s if we’re all very lucky.

May it please the Court.