J6, EPISODE II?

 Let's be clear. The suggested hush-money Trump indictment is a piece of crap. It is full of legal and factual holes, and even if it survives a motion to dismiss and goes to trial, it is quite likely to end in acquittal or mistrial. The highly technical theory behind the proposed indictment is that there was an entry made in the books of the Trump organization to the effect that the hush money payment was made, at Trump's command, by his lawyer Michael Cohen, and Cohen was reimbursed by the Trump organization pursuant to a non-existent lawyer's retainer agreement. 

There are legal problems for the prosecution – the book entry fault is only a misdemeanor and to make it a felony the government needs to tie it to a crime that, in this case, is likely to be a violation of federal campaign laws. No court has ruled on the question of whether a state misdemeanor record-keeping law can be converted into a felony by tying it to a federal crime. Perhaps that can be avoided by tying the false book entries to a state crime. I dunno. That sure would help.

 If the case goes to a jury, the government will have to overcome more problems. While the lawyers will argue about proof beyond a reasonable doubt of pertinent facts, I believe the biggest hurdle to a conviction is the "Who really gives a shit?" defense. After all, when you come down to it, this is the story of a guy who committed adultery, and then paid his sexual partner not to tell his wife – or prospective voters. In New York, we no longer send people to jail for cheating on their spouses, even though adultery remains a crime in this state. Put one or two adulterers, especially adulterous males, on the jury and you've got a mistrial.

(Reminder, the feds prosecuted John Edwards for a complicated scheme in 2008 to hide illegal campaign contributions to ”hush” his adulterous relationship with a woman who bore his child. The facts were not in dispute. The jury acquitted on one count and hung on the other five. The prosecution dropped the case.)

There are numerous "good" criminal cases to be brought in this jurisdiction and elsewhere, aside from the one that was cooking in New York when mouse Bragg took over and killed it. Grand juries in Atlanta and Washington DC have numerous solid, serious criminal investigations. The Atlanta district attorney seems about ready to indict while Merrick Garland seems to continue his nap. 

Bottom line, heading the parade of indictments with the weakest of all possible prosecutions is a terrible idea. I guess that's what you get when you have a terrible District Attorney.

II

Now let's play one of my favorite games: “What if?”

Let’s make some assumptions and see what happens.

In 1973 I was part of the defense team for VP Spiro Agnew. He was being investigated by the Department of Justice for taking bribes while he was the Governor of Maryland and possibly even receiving some payoffs while he was vice president. We urged upon the Attorney General that he had to drop the investigation because, among other reasons, Agnew’s executive office made him immune from criminal prosecution. One of the arguments we urged was "Imagine you convict him and the court sentences him to prison. He would still be the vice president of the United States, even though he was in jail." (There were enough Republican votes to block impeachment.) 

Would the Vice President still have Secret Service protection in the slammer? Would he get detailed confidential intelligence briefings in the event the president died and Agnew had to take over the reins of government? If the president died before Agnew's sentence was completed, would Agnew continue to be in jail, as president? (At that time there were no memos, or DOJ policies, concerning the prosecution of the president. And even if there were, they wouldn't cover the situation we project here, especially if the conviction were by a state court.)

Some Trump acolytes argue that a Bragg indictment will stimulate Trump’s MAGA base, while others say the opposite is true. Let's assume the worst outcome: the former prevail and Trump wins the Republican nomination. Now let's assume that before the election in November 2024, Trump finds himself facing a two-year prison term in New York State, (or even a similar set of facts in Georgia). And let's assume the MAGA lunatics are incensed by the “woke witch hunt” and Trump nevertheless wins a majority of electoral votes. What happens on Inauguration Day? Trump gets sworn in the dining hall at Sing Sing prison? He has no pardon powers with respect to a state conviction and if this conservative Supreme Court were true to its pronounced adherence to “textualism” and “originalism,” there is no honest basis for that court to interfere with a state conviction. Open and shut.

Question: Will Trump’s competitors in the Republican primaries call this fact to the attention of the Republican primary voters? Are there enough of them to think through the insanity of the Big Lie of 2020 and the potential calamity of electing Trump as their candidate in 2024? What will Fox News do—get permission from the Sing Sing warden for a Tucker Carlson televised interview of the prisoner?

…….  

Readers are haranguing me to write about the scandal of the Department of Justice's failure to respond to Trump’s involvement in the conspiracy to destroy our democracy. But there is nothing I can add to what is patently obvious. Joe Biden's biggest mistake was to appoint Merrick Garland as the Attorney General, and Merrick Garland's biggest mistake was to let more than 2 years pass before indicting Trump, and with each new calendar page, the more difficult the assignment becomes and the more uncertain the result. Beyond that, I don't know what more there is to be said.

A bientot.

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