DON'T SELL MERRICK GARLAND SHORT--YET

The House committee investigating the January 6 insurrection has issued scores of subpoenas. The most recent count was 86, and that doesn't include "requests" to appear.

It has not been easy going. Hard-right Trumpers have done all they could to obstruct the inquiry. First, the Republican caucus rejected a nonpartisan inquiry. When two Republican members agreed to serve on the committee appointed by the Democratic leadership, Republicans were outraged and in one instance, representative Liz Cheney was stripped of her position in the House Republican leadership and thrown out of Republican party by her state committee.

But the House committee soldiers on. Four witnesses have been held in contempt by the entire House, and have been referred to the Department of Justice for prosecution. The first was Stephen Bannon (who, incidentally, avoided an indictment for fraud in connection with a phony wall-building scheme by reason of a Trump pardon. His co-conspirators have since pleaded guilty). Bannon was subpoenaed in October 2021 and flat out refused to produce subpoenaed documents and appear for a deposition. He was promptly found in contempt by the entire House and the matter was referred to the Department of Justice in November. The DOJ procured a grand jury indictment in December, and Bannon’s trial is scheduled for July 2022.

Next in line was Donald Trump's Chief of Staff, Mark Meadows. Meadows too refused full compliance with the committee's subpoena and was found in contempt by the House of Representatives in December, 2021 and the matter was referred to the Department of Justice for prosecution. But unless I am grossly misreading the calendar, we are now approaching the end of April, and the Department of Justice has not acted on that House referral. Four or five months to decide whether to indict Meadows for contempt? There would appear to be no question about the fact that he was duly subpoenaed and that he refused fully to comply. What's taking Merrick Garland so long? Why act so promptly with Bannon and then drag his feet with Meadows who, as Chief of Staff to then-President Trump, probably knows a lot more about the details of the planning for the insurrection than Steve Bannon does.

Methinks the explanation is not that Merrick Garland is lazy or stupid. I suggest that recent disclosures have made it clear that Mark Meadows' criminal exposure goes well beyond a misdemeanor count of contempt of Congress. The latest revelations indicate that Meadows was at the core of the effort to trash the Constitution, reverse the will of the electorate, and keep Trump in the White House, the voters be damned. It now appears that Meadows likely conspired with members of the "Freedom Caucus,” to obstruct the Constitutional process. The evidence suggests that, from his position in the White House, he had communications about overturning the election with the likes of Jim Jordan, Rick Perry, Marjorie Taylor Greene, Lauren Boebert, Chuck Grassley, and a handful of other Republican legislators. In short, Meadows may be facing a raft of felony charges for conspiracy and sedition, and the five-month delay in acting on the contempt referral may very well be because Garland has something substantially larger in store for Mr. Meadows. And it would not surprise me to learn that Meadows' lawyers are discussing the matter with prosecutors.

From Garland’s point of view, there is no rush to bring the contempt indictment. Those who have suggested the opportunity to prosecute for contempt of Congress might evaporate upon the election of a Republican majority in the House of Representatives, are wrong.  I have no doubt that a Republican majority would likely dismiss the January 6 committee, and withdraw or otherwise trash any report it renders. But a Republican majority can do nothing to vitiate Meadows’ (or anyone else's, for that matter) criminal liability for conduct preceding the change of power. The law is clear that the crime of contempt is complete upon the contemptuous conduct, and no subsequent change of legislative power alters that conclusion. In other words, a 2023 Republican House could not "decriminalize" Meadows’ 2022 contempt (or any other crime). That means the current Department of Justice has at least until January 19, 2025, to procure grand jury indictments against Meadows et al. with respect to the January 6 insurrection. (But of course a new AG appointed on January 20, 2025 could dismiss the prosecution.)

Bottom line, it's too early to sell Merrick Garland short. The bad guys will get their due no matter what happens in the forthcoming November elections, but Garland had better get cracking no matter what.

A bientot.

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GUILTY! CIRCUMSTANTIAL EVIDENCE IS THE CLINCHER

Recently, California Federal District Judge David Carter looked at the mountain of evidence before him and concluded that it was “ more likely than not” that President Trump was guilty of the crime of corruptly attempting to obstruct the joint session of Congress on January 6, 2022. He found that Trump and his lawyer John Eastman were "more likely than not" to have conspired to obstruct the function of the federal government by "deceitful or dishonest means."

This was not a criminal proceeding. It was a ruling of Eastman's claims that material in his possession need not be turned over to the House Insurrection Committee because the documents consisted of lawyer/client communications and therefore were privileged. 

While the judge agreed much if it was indeed lawyer-client communication, he found it was not privileged because the documents fell into a category of an exception to the privilege, known as the "crime/fraud" exception. What that means is that he found it was more likely than not that client Trump knew what they were doing was illegal. 

How did the judge know what Trump knew? Because there was, he said "strong circumstantial evidence" to show this was a criminal conspiracy.

And all of this was before the judge knew about the recently-revealed 7.5 hour gap in Trump's telephone logs – the hours between 11 AM and 7 PM on January 6, 2022 – the most violent hours of the Capitol insurrection riot.

So far, there has been no valid explanation for that gap in the phone log. There is conclusive evidence that the president did indeed make and receive telephone calls during that time, but otherwise no rational explanation has been offered for the gap in the log. 

Was the White House log tampered with? Was a page removed? Did the president intentionally deceive the White House switchboard to hide his calls? Did he use a "burner phone" to avoid the White House switchboard? (While the former president has shed no light on the gap mystery, he has, in response to a press question, denied using a "burner phone" during that period. He said he was "not familiar with the term" and didn't know what a burner phone was! If that statement isn't totally absurd on its face, John Bolton has said that, in fact, he had frequently discussed with Trump the use of burner phones!)

Those few of us who can still remember as far back as 1972, will doubtless recall another "gap" in presidential record-keeping: the 18.5 minute gap in the White House tapes during a conversation between Nixon and his Chief of Staff Haldeman, immediately subsequent to the Watergate break-in. Every sentient person knew that the gap was the result of an intentional erasure to hide the president’s criminality. It was circumstantial evidence that proved, despite his absurd denial, that Richard Nixon was indeed a crook.

 (As it happens, Nixon was a lousy editor, and when a unanimous Supreme Court ordered him to turn over the remaining tapes to the special prosecutor, the so-called "smoking gun" effort to suppress the Watergate investigation by misusing the CIA was there for all to see and hear, and led to Nixon's demise.)

Destruction of evidence has always been found by courts to be strong circumstantial evidence of corrupt motive. If, as I suspect, further inquiry will reveal that Trump did something to block out that 7.5 hours of telephonic evidence, whether it was some method to evade the White House switchboard or subsequent tampering with the White House logs, it will, I suggest, prove beyond a reasonable doubt, even to a supremely-cautious Merrick Garland, that Donald Trump is a crook, was a crook, and he and his crew of Eastland, Giuliani, Bannon, Meadows, et al. are guilty of ‘'corruptly attempting to obstruct the joint session of Congress on January 6, 2021."

How powerful is evidence of document destruction to show an actor's state of mind? It is, I suggest, overwhelming proof.

I offer up one example from my personal experience: I represented a plaintiff in a libel suit in which the defendant (CBS, and one of its leading newscasters) defamed my client, a public corporation. The evidence at trial proved conclusively that the newscaster’s accusations were false. 

But my client, by virtue of its being a public corporation, had to prove that the defendant newscaster spoke with "actual malice", i.e. that he knew what he was saying was false or he had serious doubts about its truth and went ahead and published the accusation anyway.

So, how do I go about proving the defendant's state of mind? I.e. how do I prove what did he know, what did he believe about the truthfulness of his statements?

The answer was circumstantial evidence, and in that case the circumstantial evidence was that he and CBS had destroyed key documents reflecting his state of mind on that issue. The  destruction was highly selective and both the jury and later a unanimous Circuit Court (in the newscaster's hometown) concluded that the bad faith destruction of documents was indeed compelling evidence of his state of mind, i.e, he spoke with “actual malice.” 

I add a caution here: in the civil case reported in the first paragraph of this note, the burden of proof on the proponent was to persuade by a simple “preponderance of evidence." That is to say there is at least one more grain of sand on one side of the balance scales than on the other, making it “more likely than not” that the claim is proven. But to prove "actual malice" in a libel case, one must do so by far more than a preponderance of the evidence. The requirement is for a "clear and convincing" showing by the proponent.

 

One more warning here for the civilians: "clear and convincing" is close to but not the same as “beyond a reasonable doubt" which is the standard of proof the prosecutor must meet in a criminal case.

I will not here rehearse the already substantial evidence of Donald Trump's complicity, of his knowledge that his conduct was criminal. If you want to refresh yourself, read Judge Carter's opinion in the Eastman case cited above. But there can be little doubt that when you add to that, the 7-1/2 hour gap in White House telephone logs at the precise time the mob was ravaging the Capitol Building immediately following upon then-President Trump’s "let's get wild" speech, I suggest there can be no serious doubts of Trump’s culpability.

I have no doubt that Attorney General Merrick Garland is a smart guy. I'm even willing to concede he's smarter than I am. Therefore I believe he will, in time, put aside his political timorousness, take a hard look at the facts, and get to the end of the movie: indict the crook.

A bientot. 

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