IT NEVER RAINS BUT IT POURS

Every time I sit down to write a blog, I am dissuaded because current events overshadow what I intended to write about.

Obviously, the most dramatic recent event was the public testimony of Cassidy Hutchinson, a once-upon-a-time aide to Chief of Staff Mark Meadows, whom I hope will soon be known as Defendant Mark Meadows. The television production of her testimony was gripping.

I thought the most important aspects of what she had to say were two: 

In some respects, the lesser was another demonstration of Trump's total unfitness for office. The spoiled-child tantrums were, on their face, unsurprisingly tolerable,  except when you then thought about the fact that this monster had the nuclear button at his disposal.

The scariest revelation was Trump's abject determination to lead the armed mob to the Capitol where the vice president and Congress were assembled to count the electoral college ballots. Trump .knew the mob was armed with assorted weapons including guns, knives, swords, clubs, spears attached to flagpoles, bear spray, and more. Yet he protested the Secret Service ruling that those in the crowd who were armed would not be admitted to the area immediately adjacent to the speaker's platform because photographs would reveal a sparse crowd. He demanded that the magnetometers be removed so that the armed attendees could get closer and improve the "look" of his audience. (Some things don't change. Recall the lies about the size of the crowd at his inauguration!)

After the belligerent speechifying, Trump got in his automobile and ordered the Secret Service to take him to the Capitol. The driver refused and insisted on taking the president back to the White House. Hutchinson testified that Deputy Chief of Staff Ornato reported that Trump then grabbed at the wheel and the driver's neck, and said "I am the fucking President of the United States, and I want to go the Capitol." The driver ignored the order. The Secret Service has since told the press that Trump did not assault the driver, but there is no dispute about the fact Trump vigorously objected to the Service's refusal to take him to the Capitol. He adamantly insisted on being taken to the  Capitol building, along with the armed mob.

Why? What was he going to do there? His presence at the scene could only have encouraged the rioters who were chanting "Hang Mike Pence."And Trump's presence at the mob scene could only encourage the 150 Republican Senators and House election-deniers who voted to reject the result of the electoral college ballot count. What would have happened if the Secret Service followed the President's orders?. Even without his presence leading the mob, we came terrifyingly close to a successful coup d'état. As one of the commentators put it, "We were one bunch short of a Banana Republic."

The DOJ:

Remarkably, Department of Justice prosecutors were unaware of the Cassidy testimony up until the moment we all saw it on television. Some day it may become clear, but so far the Committee has not issued a straight-shooting explanation for its non-cooperation. It is inconceivable that the Department of Justice does not have access to facts and testimony directly relevant to its investigation of the attempted insurrection.

But though it has thus far been denied the evidence the House Committee has obtained from hundreds (one report put the number at a thousand) witnesses, Merrick Garland's Department of Justice is making progress on its own. Most encouraging is the fact that federal search warrants were executed against Jeffrey Clark and John Eastman. Bear in mind that in order to obtain a search warrant, the government must persuade a judge that there is (i) probable cause to believe a crime has been committed and that (i) there is probable cause to believe the person or place to be searched will produce evidence of the crime. The DOJ now has the electronic devices of both Clark and Eastman.

Recall please that Jeffrey Clark was the Trumper environmental lawyer in the Department of Justice who tried his best to get the DOJ unlawfully to send a letter to the Secretaries of State of swing states, falsely stating that there were facts indicating that the election was defective, and urging those states to send new electors to the Capitol on January 6.  And Eastman is the lawyer who pressed the coup scheme despite its acknowledged illegality. The proposed Jeffrey Clark letter was a key element in that scheme. 

Apparently, a DOJ inquiry into Clark led to his communications with Eastman. What will the pair's electronic devices reveal? My guess is there will be communications re the January 6 attempted coup.  Who will be adversely affected by the contents of those communications? My guess is the list will include familiar names, i.e., Trump, Meadows, Giuliani, and perhaps a handful of Republican Congressmen.

Remember, a federal judge has already found that there is no attorney-client privilege available to bar prosecutors from accessing communications between Eastman and Trump because of facts indicating that it is more likely than not that both of them were engaged in a criminal enterprise. Also, keep in mind that while hundreds of Trump supporters have refused to appear before the House Committee, or taken the Fifth Amendment, the Department of Justice has "cooperation tools" that the Committee lacks. 

A standard method to start at the bottom. The prosecution obtains solid evidence against a "soldier" and conveys a simple-enough message to the culprit that goes something like this:: "I now have your testicles in the palm of my hand. It's up to you to decide whether to cooperate. If yes, I take my hand away, and maybe you get a light sentence. If no, I squeeze and you go away for 20 years. Before I make up my mind whether to clench my fist, you gotta make up your mind whether you want to keep silent and take the Fifth, or rat out your boss."

One final comment: it is clear from Hutchinson's testimony, and the public plea made by Liz Cheney, that former White House Counsel Pat Cipollone is a key witness who has thus far refused to go on the record. The Committee has recently served him with a subpoena. Commentators have wondered whether he will now come forward, or make a faithless challenge on the ground of executive privilege or attorney-client privilege. Both claims would be frivolous because the law is quite clear that the former president cannot assert executive privilege in these circumstances, and that there is no enforceable lawyer-client privilege between White House Counsel and the president. The DC Circuit has earlier ruled:

"When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence... . With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the president, and all members of the executive branch, is to 'take care that the law be faithfully executed.'"

The DOJ needs to get Cipillone before a federal grand jury instanter.

The problem for Merrick Garland and the DOJ is time: the larger the investigation, the greater number of conspirators, the slower the inquiry moves. If a Republican election-denier is sworn in on January 20, 2025, all bets are off. The new president will interfere with any pending criminal investigations and prosecutions, and if necessary issue pardons by the bushel load.

The Court:

It is not unreasonable to believe that future federal and state Republican electoral machinations taken together with far-right Supreme Court decisions, will "rig" elections so as to bring about the end of the Democratic Party and the end of our democracy.

Until very recently, I believed that the Supreme Court was not so callous as to protect hard-right Trumpian criminals. But the Ginni Thomas scandal and the rash of bad-faith opinions issued by the court within the last weeks has produced uncertainty about that conclusion.

President Biden has recently come to the view that he is willing to overcome the Dobbs abortion decision by supporting a move in Congress to make Roe v Wade a national law, and he supports an amendment of the Senate's filibuster rule to make that happen. 

That's not good enough. The Democrats must also increase the number of Supreme Court justices to 13. The conservative majority of the current Court is intellectually dishonest, is dragging the country back to the 1920s, and can not be trusted to just "call balls and strikes." If the recent spate of anti-liberty, pro-religion, pro-Republican decisions by the court has not persuaded the Democrats to stop their internecine battles, rally the troops to obtain sufficient majorities in Congress in the 2022 and 2024 elections, the Court will continue to (i) destroy the progress we have made in the last 70 years, and (ii) support Republican efforts to promulgate minority rule in this country for the foreseeable future. Joe Biden's job between today and November 8 is to use the power of his presidential pulpit to make sure that does not happen.

A bientot.

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