OUR SUPREME GRIFTER

18 USC 371:   It is a criminal offense to “conspire to … defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy".

18 USC 1512 (c) (2):  Whoever corruptly… obstructs, influences, or impedes any official proceeding or attempts to do so, shall be… imprisoned not more than 20 years … .

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So, should Trump, along with co-conspirators Giuliani, Meadows, Jeffrey Clark, Eastman, and others in the Trump cabal, be indicted for their attempt to interfere with the official count of Electoral College ballots on January 6, 2021, in an attempt adversely to affect the peaceful transition of power to the newly elected President of the United States?

The answer lies in the response to two questions:

1. Is there sufficient evidence of Trump’s culpability so that a responsible prosecutor is confident he can present evidence proving guilt beyond a reasonable doubt?

And,

2. If the answer to question number one is "Yes," is it politically wise to indict?

1. In seeking the answer to the first issue, journalists have focused on two questions: i) is there solid evidence that Trump knew the Big Lie was, in fact, a big lie, and ii) did he conspire to effect the insurrection riot at the Capitol Building in an effort to prevent or delay the confirmation of Biden’s Electoral College majority. Commentators have looked for i) concrete evidence that Trump knew he lost the election, and ii) that he had direct contact with the Proud Boys, or the Oath Keepers, or anyone else involved in the planning or execution of the insurrection riot.

But in the search for “direct evidence,” the commentators miss the point. First, one does not need direct evidence that Trump knew what he was doing was criminal. Direct evidence of that fact was revealed months ago In Judge Carter's opinion of March 28, 2022, but was largely ignored by the press. In that opinion, the court not only found that it was more likely than not that Trump and Eastman were engaged in a criminal conspiracy, but that Eastman acknowledged his plan was illegal and if challenged in court, Trump would lose. 

In addition, we have a ton of circumstantial evidence that Trump pressed the Big Lie even though he knew it was a big lie, and that he used it to fire up the crowd that invaded the Capitol Building in an effort to stop the transition of power voted by the electorate.

For sure, the government would have to prove Trump’s state of mind, i.e., his criminal intent, or, to be precise, that he acted “corruptly.” But there are lots of ways of doing that without having written or oral proof of a Trump acknowledgment that he knew his conduct was criminal. Circumstantial evidence is one of those methods.

I have earlier posted on the subject of the power of circumstantial evidence (https://www.blogger.com/blog/post/edit/20408822/4560437709429262391), and beg your indulgence if you find me repeating myself, but here goes anyway:

In instructing a jury about circumstantial evidence, courts are inclined to use use the traditional hypothetical: "You are in a room with no windows and no access to the outside, and in walks another person wearing a wet raincoat and carrying a dripping umbrella. That is circumstantial evidence that it's raining outside, and it is firm proof that the person who never left the room knows damn well that it's raining outside."

There are lots of other examples of the power and persuasiveness of circumstantial evidence. One that I have mentioned before was a civil libel case in which I had to prove that defendant’s state of mind was that he was motivated by "actual malice", i.e. that he knew his statement was false or that he had strong suspicions that it was false and he went ahead and published with a reckless disregard of whether or not his statement was true. And I had to make my case by "clear and convincing evidence", a standard which is not quite the criminal standard of "beyond a reasonable doubt" but it's close. 

The defendant took the stand on direct testimony and testified to his state of mind when he published the lie. He swore that he had done adequate research and believed his broadcast to be accurate. That is, of course, direct evidence that would defeat my claim. But we were able to prove that after we brought suit, the defendants destroyed key documents. Not only the jury, but a unanimous Circuit Court that reviewed the jury's verdict, found that the destruction of pertinent documents relating to the subject matter was powerful circumstantial evidence leading to the inference that defendants destroyed the documents because they knew those documents would prove the broadcaster's direct testimony was false. So powerful was that circumstantial evidence that it overcame the defendant's sworn testimony to the contrary.

There is an overwhelming quantity of both direct and circumstantial evidence proving that Trump and his conspirators knew what they were doing was a crime.  There is an unbreakable connection between Trump's conduct and the insurrection riot on January 6. I could list pages of such evidence but a few examples suffice: 

Trump's January 6 speech egging the rioters on,

 His abject refusal to stop the riot once it began, 

His comment that if Pence did not align himself with Trump's demand that Pence count the votes of the false electors instead of counting the votes of electors chosen by the voters, that Pence deserved to be hanged, etc.

And most damning: on January 6, when Trump knew the rioters had already breached the Capitol, he was implored by his staff to call the insurrectionists back, but instead he issued a tweet advising the rioters that Pence was refusing to adopt the Trump/Eastman/Guiliani plan illegally to overturn the Biden victory. On hearing that, the marauding crowd “surged,” and came within 40 feet of the hiding Vice President while chanting "Hang Mike Pence!"

There is lots more, but I refer to a few more bits of evidence not yet focussed upon in the Committee hearings: The destruction of documents, (what the lawyers call "spoliation.") 

There are at least two instances of spoliation so far that have been reported in the press (but not yet in the hearings.) One is the disappearance of the White House telephone log during the riot, and second is the report that Mark Meadows, Trump’s closest aide (he was responsible for urging swing states to send Congress false electors to be counted instead of the ones who were certified by the states to have been chosen by the voters) burned documents after meeting with Republican Congressman Perry. Yup, Perry is the same guy who has been reported to have sought a presidential pardon after the January 6 insurrection riot.

And here is an interesting legal tidbit: the obstruction statute cited at the top of this post, (18 USC 1512) makes it a crime to act "corruptly." Black's Law Dictionary defines “corruptly” as ”a wrongful desire for pecuniary gain or other advantage." And judge Carter has pointed out that to get a conviction of Section 1512, a prosecutor need not prove “consciousness of wrongdoing” but only “corrupt intent,” which, he said is “a threshold lower than  consciousness of wrongdoing.”  

Once a grifter, always a grifter. There is recently revealed evidence that Trump raised hundreds of millions of dollars for a nonexistent post-election litigation fund, which funds were distributed in part to Trump’s hotel, his son’s girlfriend, the Republican National Committee (that used those funds to pay off Trump’s campaign debt,} and more we do not yet know. But whatever other payees from this non-existent fund, this is a law school example of “a wrongful desire for pecuniary gain or other advantage.”

And let's not forget that we are hardly finished with the discovery of damning facts. The Select Committee isn't finished telling us everything it knows, and I am confident that the Department of Justice knows a lot more than the Committee does.

So the answer to question number one is "absolutely yes", there is more than enough proof to indict Trump. The next question is what, if anything, do we do about it.

2. So, assuming Garland has more than enough evidence to bring a solid criminal case against Trump, should he do so?

There have been two arguments advanced in support of a negative response to that question.

First is the fear that it sets a bad example for the newly elected administration to bring criminal charges against the previous administration. While such prosections are common enough in autocracies we deride, it is not the American tradition. Even the unquestionably criminal Richard Nixon received a pardon from his successor. And while that pardon initially provoked a huge outcry from the public, many, if not most of president Ford's harshest critics have come around to the view that it was better for the country to focus on the future, and not the past.

Second, is the fear that so "tribal" is today's political climate, there is a great risk of a hung jury, no matter how powerful is the prosecutor's evidence.

My own view is that the pro-indictment arguments heavily outweigh the negative approach. Trump's crimes are the worst challenge to our democracy in the history of the nation. They are unforgivable. That he maintains a solid core of political followers supports the pressure to prosecute every person connected to this crime. Judge Luttig nailed it. The predicate for the crime goes on, and there is a major risk of repetition in the future. Risk of a hung jury be damned, the Department of Justice MUST indict. A non-indictment decision based on any non-substantive ground is far more dangerous to our Constitutional democracy than a trial that results in a hung jury. 

Trump and his followers committed unforgivable crimes that almost destroyed the United States of America. That is not an exaggeration. Seditious conspiracy is the most serious crime in our criminal code. Our Department of Justice must set an example that violators will face prosecution, and those found guilty will face long prison terms. Some things are not negotiable and not forgivable.

One final comment:

It was clear to me that in the Thursday hearings, Mr. Jacob, (Pence's counsel) tried very hard to make Pence a heroic figure. He testified that at the very start, the first time Pence was confronted with the Eastman plan, Pence's "instinct" was to reject it and Pence never waivered. Jacob said his client instinctively knew from the git-go that any plan that allowed the vice president of the United States to overturn the will of the electors and that resulted in the Vice President choosing  the next president or the United States, had to be unconstitutional.

But even if we take Mr. Jacob at his word, an important question remains; where was Mr. Pence's "instinct" on November 4?  On November 5, or 6, or 7? Where was his concession speech after it became clear that he had lost the election? Why did he remain silent for the month of November, and indeed for the month of December? Why did he let Trump's Big Lie build and build and build? Where was his "instinct" at that point? Where was his patriotism? What was he waiting for?

 I think it's fair to argue that had Pence made a concession speech the day after it was clear he lost the election, that would have drained energy from Trump’s Big Lie. But Pence unconscionably remained silent as did so many other witnesses who now are quick to come before the committee and condemn Trump. What public statements were made by Ivanka Trump,  Bill Barr, or  the several members of the White House counsel's office who now so willingly condemn Trump’s effort to make himself King of the United States? What did they say, and when did they say it?

We have the benefit of their public testimony today. For that we should be grateful. But assuming that testimony is honest, (and I do,) why were those witnesses silent for so long? How much did that silence cost us in terms of the generation and growth of Trump's Big Lie, which clearly incited the criminal invasion of our Capitol, the erection of a gibbet, and call for the assassination of the Vice President of the United States?  Should those threats be treated more lightly than those of the moron who stood quietly on the sidewalk in front of Justice Kavanagh's house and said he wanted to kill him?

Whatever the reason for the reticence of Mike Pence and so-called "team normal" to earlier speak out publicly, their failure contributed to the development of a dangerous insurrection riot, and led to the depressing and very scary picture of the vice president of the United States hiding in a basement loading dock, making last-minute efforts to salvage our Constitution from the depredations of the President of the United States. 

General Garland, do your job!

A bientot.

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