Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong
Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:
Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.
Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:
We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.
Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.
Hard cases may make bad law. But easy cases ought not.
For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”
Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.
I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.
“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”
This difficult judgment does not mean that Attorney General Garland should do nothing.
He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.
First, some background.
Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.
Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.
My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:
- Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
- A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
- An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
- Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
- Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
- Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
- A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
- A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
- A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
- A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
- A law review article on prosecutorial discretion
- Robert Jackson’s seminal text about the role of a Federal prosecutor
- The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
- The quip, “hard cases make bad law”
- An Eric Posner op-ed published before Trump attempted a coup
Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.
And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.
For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.
Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.
In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.
The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.
And that question is significantly a question about equity.
The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.
The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.
The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.
The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.
The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.
The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.
The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.
The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.
At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.
But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.
All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.
All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.
But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.
To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.
This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.
But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.
The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.
DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.
His improper advantage was undoubtedly the goal.
“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”
As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.
The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.
Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.
Other Posts
Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:
A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.
The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.
Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.
“that demands that DOJ to prosecute Trump” – I suspect the “to” should be removed.
(GRRReat! article)
TY. Fixed.
Yes. Fantastic analysis and writing. Wow are we lucky to have you Marcy!
your link to Robert Jackson’s seminal text about the role of a Federal prosecutor …
leading to my introduction to the Jackson Center …
many thanks.
This is Pulitzer quality.
Undoubtedly.
A true masterpiece. This quality of insight is why I – and many others, I suspect – have EW on ‘speed dial.’
Indeed.
Excellent work and analysis. FWIW, the case law interpreting the term “corruptly” in section 7212 of the Internal Revenue Code has been interpreted as meaning means to act with the intent to secure an unlawful advantage or benefit either for oneself or another. Case citations can be found in the DOJ Criminal Tax Manual, which is easy to find on line.
Yes. That’s how it came up in Kelly.
It was an ill-fated effort (by the lawyer for the Proud Boy who kicked off these challenges) to circumscribe the application here. But bc of the direction Moss would go with it, it doesn’t help, because they all wanted to win an election they lost.
You are amazing.
The End.
oh boy, such good work, dr emptywheel! thank you, thank you.
this clarification simply constructs and declares the case, as it stands, right now!
what more is needed?
(heh — LOTS, i know, many miles to go ….)
“The question is whether to hold Trump to the same standard as the hundreds who have gone before him.”
In our journey of a thousand miles
Along the arc of a moral universe
Let justice be done – Fīat jūstitia
though the heavens fall – ruat cælum
As far as your Professor goes, I will say this for him: I congratulate him on the erudition of his student. That being said, he hasn’t noticed that his wish for no prosecution has come pretty close to fruition: every day that goes by with nothing but a few guilty pleas by the sheep and no attention to the shepherds is a day that tells the American people that this was a crime by a bunch of morons and had nothing to do with the higher ups. What they saw with their own eyes doesn’t add up to a crime. Should there be an “Investigation”?”Wherever it leads”? Sure, but whenever I see this stuff I feel like I’m struggling with coping with reality. Everyone saw and heard and read enough to know the TFG wanted his so called “people” to march up to the Capital and prevent the Senate from accepting the votes. Translating: could a reasonable jury conclude that he sent this gang of scum to the Capital to steal the election based on what we saw that day? Did I not see what I think I saw? But apparently, an “investigation” is necessary. To me, there was enough to charge this out on 1/20/21; or at the very least enough probable cause for searches and seizures (You know, where the cops and Committees DON’T politely ask for documents, get refused, go to court, win, go to court, win again, go to court, win yet again.) that are tested LATER at suppression hearings and on appeal and not for months on end as part of an “investigation”. The lengthy investigation gives the impression that what was seen means nothing. I agree with EW’s conclusion: charge him with a crime. But I would add: do it soon.
PS: Is there a judge anywhere considering whether Rat-Fucker’s pardon means he has to talk? If and when, how long is that going to take?
Not currently because there is not currently any attempt to force compulsory testimony from him.
By ignoring him, it makes it seem to an ordinary–and who’s more ordinary than me?–observer that the Justice Department thinks that he doesn’t have anything interesting to say. OTOH, maybe they’re just being clever and waiting until Rat-Fucker commits more un-pardoned crimes which he started doing the second after his pardon. And then they pounce.
Who says anybody is ignoring Stone? The courts cannot go after him sue sponte, and, thankfully, anything the DOJ is doing is not public fodder.
The 1/6 Committee did subpoena him, he took the 5th, and I’m unaware of–although there must be–any attempt to sort out the 5th A/post pardon issue.
No, there has been no further action I am aware of.
I believe Stone was pardoned for lying to Congress, crimes he committed long before 1/6. So any crime he committed regarding 1/6 is fair game for prosecution, and, whether you and I like it or not, Stone is perfectly within in his right to claim the 5th.
Zirc
He pled the Fifth, smartly. Unless someone provides evidence there’s a tie between his pardon and his silence, that’s the end of it.
That’s the end of the bribery charge, sure; but to what extent does he still enjoy 5th A privilege for things that can’t incriminate him? And what happens if he were to be immunized?
“and what happens if he were to be immunized?” I suspect it might end like Manafort’s plea situation.
“and no attention to the shepherds”
Objection! This not only presumes facts not in evidence, but ignores facts that are in evidence.
See Marcy on Rudy’s cell phones here for more. For instance:
One shephard who’s being investigated by the SDNY for crimeing it up with the Ukrainians and not 1/6 stuff doesn’t count. But I am presuming a lot.
You are presuming you know of all warrants targeting Rudy, for example.
You are also presuming that, in spite of having two employees arrested, Alex Jones is not being directly investigated.
You are also assuming that DOJ included Roger Stone in the court filings of a bunch of Oath Keepers for shits and giggles.
It’s all shits and giggles, until somebody giggles and shits.
IANAL. But even if Stone could hypothetically be forced to testify about crimes he was pardoned for, he is subject to prosecution for crimes after the pardon and could plead the 5th, I think. Please correct me if this is wrong.
No, that is correct. Not to mention Stone may still have state level criminal exposure. This is not a black and white issue in any regard.
Excellent point–not black and white–and it stays that way until the Supremes tell us what’s what. What’s the over/under on the date we get an answer? (We should recall that the Supreme Court issued an order in US v Nixon about 7 weeks after the trial court ordered Nixon to cough. up the tapes.) 150 days from when the trial court issues the order.
No clue!
Ha. You have way more clues than most. And insofar as Rat-Fucker and the 5th A, I think you’ll agree that the process won’t get over until it gets to the courts, climbs the tree, and there’s an answer.
One thing most folks seem to be overlooking is that Stone is _the_ ratfucker. If he were somehow compelled to testify, even with proffered immunity, there’s a strong chance that his testimony would only reflect Roger’s Reality©. He lies spontaneously, and IMO, offering him immunity to spout his bullshit would endanger any prosecution.
Agree, but sitting his lying’ ass down in a witness chair would likely produce some prosecutable perjury.
Ew,
“ Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs”
The world has seen many great martyrs and many small martyrs. Aspirational ascendancy is all that a martyr’s act targets. Whom more than anyone else wants to be the one Boss who can say you’re f….d. If/when the boss is prosecuted further aspirational ascendancy martyrdom shrivels up and.
“But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.”
This. 1000x this. Put it in bold.
Amen.
That one sentence stated the issue clearly and succinctly.
After losing the various court cases and appeals for lack of sufficient evidence and/or legal merit, all efforts became efforts to overturn a legally valid election to benefit the loser.
I feel ridiculous, but
this was the point in my reading at which I literally started crying.
THANK YOU, MARCY!
[I’d maybe add that TRUMP KNEW he had not won,
though that might be hard to prove.]
1/5/21 NYT: https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html
He signed the termination statement, so he knew.
“TRUMP KNEW he had not won,” and prior to Nov. 3, he knew from internal polling that he was going to lose, bigly.
After he had lost all the court cases, Trump knew that he had no legal basis for claiming he had won.
His acceptance of that reality is another story and could provide for a diminished mental capacity defense.
When you lose in no less than 60 court cases and scores of audits carried out all over this country and you’re President of the United States, then it should be reasonable to expect that you know you lost.
Harpie, yes. That point stopped me in my tracks. So powerful!
A presidential election is a process with several major parts:
• The popular vote
• State certification of the vote
• Electoral College vote
• Congressional Certification of votes of the states and their tally or, lacking sufficient votes to declare a winner, a vote in the House with each state delegation getting one vote.
The election cannot be said to be over until all of these sub-processes are completed. Only upon having successfully obtained Congressional Certification, or election in the House, are we entitled to recognize the lawful winner. I do not doubt the corrupt intent of demonstrably corrupt people, but I am inclined to believe that if the charge of corruption can actually be part of these prosecutions, it will have to apply to the intent to interfere with Congressional Certification rather than the desire for a specific outcome in an election that was yet to be officially determined at the point the unlawful acts were committed.
Unfortunately, the law that mandates this sequence of procedures, intentionally or not, provides in most of them opportunities for mischief. The law needs to be fixed.
EW,
In sportsball terms you parked it in the cheap seats.
Perhaps one of your best and clearest. TY MW!
An honest and fair justice system should indeed prosecute all serious crimes that have occurred. But in this case, the “crime” is still being carried out. Without really saying it, many hope that swift action by the justice system now could also serve to stop the on-going machinations of TFG before 2024. This hope may be misguided, but it is understandable. Yet, it is not the role of the justice system to respond to fire alarms, but to prosecute crimes. Your detailed account of the current state of the investigation demonstrates that there is no substitute for accurate and good information.
“also serve to stop the on-going machinations of TFG before 2024”
IMHO, it is not just tfg, or not even mainly tfg, that is the driving force behind these attempts to destabilize this country.
The whole repuglicon party has been preempted by a malevolent force. Rank capitalism/libertarianism? Russian/Putin or Chinese/Xi or Iran or even some supposed allies. tfg is as always the “useful idiot”. One of his sons (like the NORK dynasty) can be the next.
What is the policy goal? To make this type of attempted coup impossible in the future and to make the primary potential beneficiary of the attempt that did occur pay a high enough political and financial price, possibly with criminal penalties, that he is politically disabled. A political Elba is not enough, he has to live out his days in a media St. Helena.
The strategy is must be to isolate him from the high level planners who passed themselves off as directors. That means working upwards through the layers of insulating co-conspirators.
Operationally, the co-conspirators can be managed by the prosecutors. Forcing Trump into a more isolated media position is the job of the committee, and the wider media culture.
Tactically, the proven methods used against drug cartels, and used to break the post Civil War KKK in South Carolina, updated to the electronic age, are the safest.
Prosecuting Trump is probably the end game, if all the other pieces can be assembled. His prosecution and conviction would be the keystone of the arch that makes the structure permanent.
Along the way, other tools, like civil forfeiture can also be used to outflank the conspirators. No need to charge into a brick wall if an indirect route is available.
The so called President of the Confederacy, Jefferson Davis, was never prosecuted. The twin catastrophes of the Civil War and the murder of President Lincoln left the nation disinterested in explaining treason to a probable Virginia jury that would be nearly impossible to impanel and would probably not conflict.
The US probably has to end or at least greatly subdue the pandemic, before a distracted public can concentrate on the risk of making elections subject to the influence of violence.
At one time Davis was a Colonel in the US Army. IDK for sure but they probably could have thrown a court-martial his way if they had the will.
They certainly could have just shot or hanged him at any time.
AIUI he wasn’t driving that war – and he apparently stayed out of politics afterward.
Excellent analysis. It was clarifying for me.
It would seem that the DOJ now has the template. Let’s see how many of the conspirators it will prosecute.
I recall Michael Sherwin, the USA for DC, at a press conference after the riot, talking about seditious conspiracy. It took awhile for the DOJ to migrate from sedition to obstruction. But slow and steady wins the race. I hope.
And, if the January 6th Committee does nothing more, if it beefs up the laws on sedition and obstruction, it may have accomplished a lot.
“My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed.”
This is the thing that drives me crazy about so many arguments about Trump, whether they talk about prosecutions, civil suits, or even political confrontation.
They skip over the question of actual evidence and reason backwards instead from assumptions of evidence that support the conclusion they want.
People who want to protect Trump in particular, but also some opponents of Trump, want to short circuit investigations because they are worried that investigations will upset the delicate balance they have constructed in their minds. Trump backers at least are more realistic because they at least know that the more people dig the worse he always looks.
But Trump opponents who shy away from digging are always imagining that ending cases against him is better than expanding them. They live in an Aaron Sorkin TV fantasy world where Trump alone is the devil, and one clean quip down brings down the whole enterprise. And they ignore the obvious fear of the GOP that detailed investigations will expose GOP complicity as well, and free the GOP to launch its own counteroffensives.
If there is a complaint it’s that investigations should have started sooner and should have been broader — that state AGs should have shifted more to Trump in the early 2010s, that the House should have done more once the Democrats took over, that the press should have dug even harder into evidence of his sexual assault and financial crimes.
But instead we get people starting from a fantasy assumption about the world who argue against serious casebuilding, and as evidence grows many will be working harder to narrow their mental framework to justify ever more rickety constructs.
The first rule of legal interpretation is, “Read the document….Read the whole document.” Or, to paraphrase Dr. Strange, read the whole spell, because sometimes the precautions come at the end.
Robert Caro on his bedrock lesson from his editor Alan Hathway at Newsday:
After a while, I said tentatively, “Mr. Hathway.” I couldn’t get the “Alan” out. He motioned for me to sit down, and went on reading. Finally, he raised his head. “I didn’t know someone from Princeton could do digging like this,” he said. “From now on, you do investigative work.”
I responded with my usual savoir faire: “But I don’t know anything about investigative reporting.”
Alan looked at me for what I remember as a very long time. “Just remember,” he said. “Turn every page. Never assume anything. Turn every goddam page.” He turned to some other papers on his desk, and after a while I got up and left.
Source: https://www.newyorker.com/magazine/2019/01/28/the-secrets-of-lyndon-johnsons-archives
Thanks for sharing that!
Excellent article. Thank you for sharing. And thank you, Dr. Wheeler for your clarity and ability to pull together all these cases & help us make sense of them. Happy New Year to all!
Wow! What an amazing article. As an unregenerate 60s type, I had never thought Lyndon Johnson worth reading about, at least not in any depth or at length, but that article has changed my mind. In a way the description Caro provides reminds me of Larry McMurtry, another Texas boy who prospered in the larger world. Thanks for posting the link.
This Texas boy can tell you–LBJ _ran_ Texas. No matter who was governor, or lieutenant governor (who is the more powerful under Texas law), LBJ ran the state. He was savvy and ruthless. And we can thank our stars that he was so ruthless, when the Civil Rights Act was passed.
Somewhat OT but do check out his son’s, James McMurtry’s music, IMO as valuable for its insight into “everyday people” as almost any other writing, and likely more fun.
and re: The Power Broker when stonewalled either by RM or by his estate:
“It’s amazing how much you can learn by reading the papers and paying attention.”
(paraphrasing, I think…from a speech he made at Hofstra.)
“…read the whole spell, because sometimes the precautions come at the end.
And never summon anything bigger than your head.
It is also good to take B Kliban’s advice and “never eat anything bigger than your head.”
Which may well be the ultimate origin of my joke!
The depth and clarity of your work separates you by a mile from most other commentators.
In considering the pace of DOJ’s progress, it may be worth considering that the political calendar is different from the legal calendar. Even if Democrats are crunched in mid-term elections, DOJ will still be under jurisdiction of the Biden administration, with or without Garland. Political considerations may be even more complicated in that scenario, but prosecutions based on strong evidence could still proceed.
Isn’t Trump’s defense that they didn’t do what he told them, so it’s not his fault? He told them to stiffen the spines of Republicans to vote to sustain the objections. He didn’t tell them to shut down the process – that undermined his express goal. Surely we can’t punish someone just because a bunch of people acted illegally on his behalf, but against his wishes.
What affirmative and/or justification defense, and to what specific crime, does that pertain to?
Conspiracy to obstruct – can the supposed ringleader be charged when the supposed members of the conspiracy went off and did something contrary to the ringleader’s direction?
Every mob boss ever has pointed to page 146 of the employee manual of the Bayonne Solid Waste Company where it says “Whatever you do, don’t dump barrels of PCBs in the Gowanus Canal because that is illegal. We at BSWC love the environment and follow the law.”
That doesn’t work when prosecutors do their job and gather evidence provng a different story. We don’t know if that will happen with 1/6 but trying to extrapolate from available evidence what will happen doesn’t make a lot of sense.
To paraphrase Pete Davidson, that’s what Staten Island is for.
Contrary? No indeed.
I’m reacting specifically to this part of the article: “ DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win”
I believe that if it is demonstrated that the former president was involved in a conspiracy to overturn the election (e.g., holding conversations with people like Eastman, Stone, Giuliani about the possibilities, while some of them were interacting with Proud Boys and Oath Keepers and Alex Jones), then he is part of the conspiracy – it is not necessary that he incited the insurrection or that he knew it was being planned by some co-conspirators or even that he knew the militia types were part of the conspiracy. He would still be guilty of conspiracy and whatever crimes the conspiracy planned. If I am wrong here, which is quite possible, I’m sure bmaz or ew herself will smack me down.
As best I can tell it’s following the same faulty line of thinking of Sarat — take a limited subset of evidence and then argue implicitly against action on the premise that nothing ever changes.
Nothing will change if you assume that premise is proven before even going through the rest of the process.
Trump has alibis like he has wives. He changes them often. And just like his marriages, people have to realize he still doesn’t have endless flexibility to change them and he can be made to pay through the nose when he tries, given the hard work it takes to build a case.
I suppose I should clarify — I’m not offering this up as a potential defense. I’m thinking about it from the prosecutor’s side: what do they need to meet their burden? In the case of conspiracy, in order to establish that a particular person is a participant of a criminal conspiracy, the prosecutor will have to show that the person had criminal or corrupt intent, or had knowledge that others in the agreement had criminal or corrupt intent. Perhaps the investigators already have evidence to that effect, or perhaps such evidence doesn’t exist. Or perhaps it remains to be uncovered. That seems to me to be the key piece that’s missing, and I want to understand as much as I can where it stands.
The William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst – named after the founder of Sullivan & Cromwell and the man who turned J.P. Morgan’s ambitions into reality – writes as if he has never heard of the chinless Mitch McConnell.
Sarat’s argument is wrong and a straw man. In upholding the law, a prosecutor is supposed to act without fear or favor. She must not act because of a corrupt inducement or out of fear that others might object to her equitably upholding the law. The aspiration is fundamental and a counterbalance to the power and discretion of the office. Not prosecuting Trump because his followers might react violently dismisses the aspiration and concedes victory before the battle.
Austin Sarat seems to believe the NYT: the GOP is and always will be the peaceful flip side of the Democrats’ coin, and is equally committed – despite fierce competition – to the Constitution and the rule of law. That view is demonstrably false. It has been since Newt Gingrich became Speaker.
As EW pointed out, the things Sarat fears are already occurring. They will continue to occur, so long as Trump and his GOP remain committed to authoritarian rule. They’ve read the polls, they know the demographics. They cannot win elections by winning a majority of votes. They can only win by doing what they claim the Democrats have already done: deny the law and facts, corrupt the truth and public debate, and steal victory with violence.
Not prosecuting Trump – if the facts support probable cause and a probability of success – is more than accepting the death of democracy. Fearing to pursue, “even a well-grounded prosecution of Trump,” is to hammer the nails into its coffin.
Yep.
It is so damn infuriating.
I believe you’re right to mention the notorious salamander, but it started long before he became Speaker, with the methods he used to defeat the Republican old guard. There’s a good discussion of it here –
https://www.theatlantic.com/magazine/archive/2018/11/newt-gingrich-says-youre-welcome/570832/
– and I was surprised at the time that there wasn’t more discussion of Coppins’ article, except that the ongoing Trump clown show eclipsed all other news. What the current GOP mostly resembles is a revival of what the abolitionists called the “slave power,” a Congressional cabal which refused compromise because it knew that compromise would destroy it; it’s vision of “democracy” really only comprised a commitment to the continuation of a particular elite in power. I doubt Gingrich saw things that way, but that, in terms, is what his “revolution” entailed, and Trump was the logical end of that “revolution.” Coppins paints Gingrich as a sort of Bannon figure, interested primarily in bringing down a system of governance he believes to be corrupt for ill-thought-out pseudo-Spenglerian notions. I wonder, however, if that gives Gingrich too much credit. I see him more as one of those people who likes to break things simply because he can, in short, a sociopath with rationalizations rather than reasons.
I think that gives Bannon, Gingrich, McConnell, and others too much credit. They have no principles and are incapable of acting in good faith. Anarchy is a means to an end: money from corrupt lobbying and the power to run government on behalf of those who spend the most on lobbying. Performance artists like Gaetz and MTG are comprise their chorus.
I found McKay Coppins’s story on Gingrich too genteel, as if to make up for the brutality relentlessly gushing forth from his subject. Will Bunch or Dan Froomkin would have been sharper and provided more context. But then Gingrich was careful not to give them the interview.
Gingrich, like Trump after him, is a quintessential, do-as-I-say-not-as-I-do, sociopathic predator. No backgrounder on him would be complete without a history of his lifelong adultery, often with congressional staffers in his employ. His third and current wife, Trump’s former ambassador to the Vatican, began an adulterous affair with Gingrich as a 27-year-old staffer, marrying him only seven years later. That was after Gingrich had left his first wife in the midst of her cancer treatment, and his second after she was diagnosed with MS. They were excess baggage and of no use attending to his needs. That’s how he treats the Constitution and the rule of law.
Gingrich’s penchant for political destruction mirrors that of CEOs and economists. Their claim that it is necessary and creative is a form of auto-eroticism. Gingrich, like Karl Rove and Steve Bannon, was making room at the table for Gingrich, so he threw the political institutions to the floor like so much broken crockery.
Having made room for himself, he closed the door behind him. He imposed on the GOP an intense regimen of fundraising and pay-to-play for leadership positions, and demonized any cooperation with Democrats. For Gingrich, governance is of no utility if you’re not the sole governor.
Gingrich is, indeed, the godfather of the current GOP. Having chosen to be brutalized by a fearsome leader, Trump needed only to sink his teeth in its neck to make it his willing zombie.
How is it that Sarat and many others who should know better seem fundamentally blind to the nature of the very abyss he warns of, and to our descent within it?
Perhaps he/they are blinded by fear.
“Go straight to the heart of danger, for there you will find safety.”
— Chinese Proverb.
For a good analysis of state of things, and where they may lead, I recommend the following Vox article by Zach Beauchamp: “How does this end?: Where the crisis in American democracy might be headed.”
How do you think the narrowing definition of “corrupt benefit” in the McDonnell case factors in here? Trump’s “benefit or advantage” was not a noun, as that decision essentially declared it necessary to be corrupt, it was an as-yet unrealized goal. And while attempted bank robbery is obviously still a crime, isn’t there a cleaner argument that he and his co-conspirators sought to defraud the US by sending false state electors, having DOJ open false investigations, pressuring/threatening Pence, orchestrating and/or coordinating violence and slowing Natl Guard response, etc?
Eh, what that has been written for a year here leads you to believe your last question has not been on the front burner during that time?
I haven’t clocked every post here for a year, so I guess I missed that chapter. Gotta imagine DOJ is not going to try to take Trump down on charges just from his attempted coercion of Pence, though. The conspiracy sweeps in everyone important and can be documented in 15 different media, from currency to cell data to hotel bills.
Long time reader, first time commenting. THIS is exactly why I keep coming back to this site – the writing, analysis and clarity of thought that you provide is unique and essential. Thank you.
Welcome PeterL, and let this be just your first comment with many more to come.
Thanks bmaz – I appreciate your insights as well; and I hope to avoid sloppy comments that incur your wrath! Happy new year
Oh, you’ll be fine!
Things I like about this post:
I appreciate your explanation of your personal connection with Sarat, and your careful analysis of his listed sources, and the deficiencies of those sources.
I appreciate your explanation of three parts of the OLC memo (that was very interesting).
I appreciate the explanation of the various flavors of corruptness (and I’ve only seen “transitive” and “intransitive” described elsewhere).
I think I understood that DoJ can just keep expanding their current investigation without starting a new investigation of Trump himself, but I feel better knowing you think that. (I don’t have a clear understanding of what DoJ can do with 1/6 committee public testimony in the absence of a criminal referral, but that’s a question for another time).
I appreciate your nuanced context of equitable treatment for all participants in this corrupt action.
I am reading this text: “This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims. But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges” as saying that there are crosshairs on Trump because of the lawyers his co-criminals hired.
If I got that right, that’s what I appreciate most of all.
Thank you for all that you do.
Hear, hear!
Thank you!
As to Jan 6 stuff, I expect it will come into DOJ in different ways. Bennie Thompson has been including enough material in his public reports such that DOJ can replicate it all easily if they want to use that for warrant applications, with no referral. For example, Mark Meadows’ contempt referral is more useful as an affidavit draft.
I think other people likely WILL be referred. I’d be shocked if Ali Alexander didn’t tell a number of identifiable lies. He’s in the crowd (along with Alex Jones) that DOJ is surely looking to worth through. So a false statements referral may speed up DOJ’s prosecution of him.
And down the road, I expect DOJ will cull Jan 6 reporting for witnesses as they move up the chain. For example, a number of Pence associates clearly testified willingly. Well, now DOJ knows precisely what they testified to, and that they’re willing to do so.
Also note, that Jan 6 is getting privilege waivers for a bunch of stuff that DOJ can also use, but in a way that doesn’t involve Biden being implicated in the investigation. Jan 6 may also be key in getting past speech and debate protections for witnesses.
“Jan 6 may also be key in getting past speech and debate protections for witnesses.”
That is no small thing. Congress can do more to investigate its own than DOJ, and they can do it faster.
Precisely. I’m acutely interested in whether more criminally exposed MoCs like Gosar and Brooks get an invite in coming days, or whether Jan6 doesn’t feel the need.
I’m wondering about Ted Cruz and Josh Hawley, myself. Of course, this is a House committee, so their leverage over senators is less. Still, when Gosar needed a senator to sign on to the motion to object to various states’ votes, Ted was there for him.
Or what about their staff? It’s been standard for them to be interviewed by the House Ethics Committee and prosecutors on other cases.
They’re frequently the ones who screen voicemail, make appointments, filter texts and email and keep the chaos of thousands of daily inputs in order.
Maybe in the craziness surrounding 1/6 people like Gosar were able to keep normal and abnormal business compartmentalized and coordinated all by themselves, but typically they can’t even manage to keep on top of purely legal daily business without a lot of help.
I suspect that various staffers have been giving testimony. “I’m a staunch republican, but the abusive calls from ‘constituents’ are unbelievable. Let me tell you about it . . . “
Paul Gosar’s staff is already notorious for being zombies to the cause. If called for interviews, most of them would be reciting chapter and verse from Q. I don’t know, however, if Brooks, Perry, Biggs, etc., have that kind of loyalty from staff members.
Politico reported yesterday that J6Committee got documents and a “privilege log” from Bernie KERICK:
Bernard Kerik provides batch of documents to Jan. 6 select committee The former New York City Police commissioner also provided a “privilege log” describing materials he declined to provide to the committee. https://www.politico.com/news/2021/12/31/kerik-documents-jan-6-committee-526297 WU / CHENEY 12/31/2021 07:40 PM
Politico got this doc, from 12/27/20:
The FREEDOM CAUCUS is listed as “KEY TEAM MEMBERS”.
Here’s a link to the document:
https://www.politico.com/f/?id=0000017e-132a-dca7-a1ff-b33b8afd0000
A privilege log is a document that says “here is a list of items you have asked for that I believe are protected by some kind of privilege.” This is a standard procedure. If the folks issuing the subpoena disagree about what is listed, they’ll go to the judge to sift through the list.
On its face, there’s nothing problematic about a privilege log.
I am curious about this: should he be successfully prosecuted, will Donald Trump actually spend time in a jail cell?
Lol, no one can answer that question until there are specific charges and adjudication thereof.
I was just asking if, as a former president and one with a large loyal following, he might be beyond imprisonment. I guess not.
We’re in uncharted waters, driven there by Trump and his party. There’s no legal impediment to his prosecution and imprisonment. But there’s no precedent for it either, only a political reluctance not shared by many other countries.
And if Trump were to be placed in a jail cell after a successful prosecution, do we know whether his Secret Service detail have to sit in the cell with him? Or could they stay in the hallway?
Or, I wonder, does one lose Secret Service protection privileges when in jail?
No clue!
yes, trump should be prosecuted. and i really appreciate the background and insight. but in your list of others being prosecuted every single one actually entered the Capitol building. How many have been convicted of obstruction that did not enter or were on the grounds of the Capitol? I suspect those will be much harder to prosecute and convict. When those start being successfully prosecuted then your POV will make more sense.
Greene (the first Proud Boy to flip) did not enter the Capitol.
Your point, though, is incredibly important. That’s why Alex Jones presents a key challenge, one I suspect is bearing down on DOJ. He is an absolutely key pivot to this investigation. But unless DOJ has abundant evidence against him, they’re going to have a hard time going after a media figure.
https://www.emptywheel.net/2021/12/16/the-pied-piper-of-insurrection-and-other-challenges-in-charging-the-january-6-organizer-inciters/
right. although as he was on the grounds. trump and others being not being on the ground at the actual attempt at obstruction will be much harder to prosecute i suspect.
from CNN:
“According to prosecutors, on January 6, Greene and two others pushed through police barriers on the Capitol grounds and took direction from Proud Boys leaders over radio during the riot. He participated with other rioters, including members of the Proud Boys, in moving additional police barricades,” according to the Department of Justice.”
On Thursday before the Holiday, the DC district court basically cancelled all trials for a three week period (ending January 24, 2022):
https://www.dcd.uscourts.gov/sites/dcd/files/Final_SO%2021-83_Postponement%20of%20Jury%20Trials%20Until%20January%2024%2C%202022_20211230.pdf
This could have an impact on the scheduling of the J6er trials. Moreover, there could be additional postponements if the Omicron wave crests higher than expected.
Meh, doubtful. Most districts do very few trials during that period anyway.
Understood. But some districts still have a backlog from prior Covid postponements. Not sure if DC is in the same boat.
It will create more havoc in the scheduling, undoubtedly.
The first Jan 6 trials are scheduled for February at this point (bc DOJ won’t finish all the massive discovery until then). But the bigger trials don’t start for a month or two after that.
I keep saying USG should take over Trump International and use the meeting rooms as court rooms until COVID is done.
Hey, didn’t the government used to own that joint?
They still do! They just lease it.
So buy out the lease and use it as a schlock court house until the Jan 6ers are processed through.
Given Trump’s history, I’d check the fine print to see if he is in violation of the lease before I’d offer to buy out the lease.
LOL! My first thought was
“!#!#!…and give that @!*@! even MORE of our money,”
So, thanks for this…YES!
Yes.
The Old Post Office will need a thorough fumigating. I used to enjoy its various phases pre-tfg and back then it could always use some more thorough cleaning.
Post-tfg the bug-riddance crews (insect and electronic) should have their work cut out for them. Just like the former US embassy in the USSR, I’m sure the current Moscow regime has planted many special bugs in this building.
I’m in DC and I just got a notice for jury duty.
We shall see in all the districts. But getting a jury summons is a good thing!
I’m picturing voir dire . . .
Q: Have you heard much about this case in the media?
A: Yes.
Q: And what media sources do you regularly consult that have covered the events at issue here?
A: I read Marcy Wheeler at Emptywheel on a regular basis.
Defense Counsel: Move to strike this juror . . .
Well, yeah, I’d strike that person from the pool too, but you only get 10 peremptory strikes.
Years ago, I was in a jury pool with a longtime Bay Area sportswriter in a case with four criminal defendants, each with their own lawyer. When this guy got called up for questioning during voir dire, the judge smiled (knowing what he was about to hear) and asked “Do you know any of the parties to this case, or any of the lawyers?” He laughed, and said something like “I don’t know the parties. The lawyers, on the other hand . . . Well, let’s see. I had lunch with Lawyer 1 last week. Lawyer 2 and I watch a game two weeks ago at a sports bar. Lawyer 3 invited me to his home for a Christmas party last December. Lawyer 4 lives down the block from me, and we see each other at neighborhood gatherings all the time. At the other table, the lead prosecutor and I have spent many hours debating the merits of our respective college women’s basketball teams (Cal and Stanford) Oh, and for the record, judge, it was a delight to enjoy dinner with you and your wife last month.”
Everyone laughed, and he was excused by the judge.
Heh, and this is why I will continue to never be seated on a jury, of any kind, ever. And I would kill to do so.
I am an attorney with a federal tax controversy practice, handling both civil and criminal cases. I was seated on a state court jury for a criminal trial (burglary) about 10 years ago. The prosecutor thought that, because I lived in a nice ZIP code and represented white collar defendants, I would be on the side of law and order. The defense attorney thought that, being involved with some criminal defense, I would be sympathetic to the underdog.
Don’t dispair, bmaz. A trial jury, likely not! But a grand jury? You would be a valuable asset.
There were 3 attorneys on my* GJ; defense, corporate and patent law. They were enormously helpful to the rest of us.
* My GJ, indeed. I’ll expand below, kindly whack me there. This subthread is stretching my phone.
Perfect!
Chicago suburbs here, I’m standby for a criminal jury trial in two weeks. November pre-covid, my daughter sat on a multiple-murder trial jury (gang involved). I do very little criminal work (I do currently have an accused sex offender I’m representing in a civil suit and an OIG investigation).
I wouldn’t want me on a jury, not because I’d be favorable to one side or another, but because I think a juror such as I would ask too many questions, second guess strategy, etc. It’s reasons like these I don’t like medical personnel on personal injury trial juries (have my first one since ’19 next week), much less lawyers.
I was a juror on a DUI trial years ago – fascinating experience where an acquittal was based on the officer testifying that the accused had also assaulted him at the time of the arrest – but was never charged, which the jury felt impugned the officer’s credibility. (I might have told that story here before.)
Admittedly, there’s no perfect recipe for dealing with extremist politicians, but Sarat and Posner effectively propose to immunize them lest they become martyrs and even more extreme if held to account (“even [by] a well-founded prosecution”). It also makes hostages of the non-extreme majority, who will be perpetually at the mercy of the minority. Finally, it risks making the law itself an irrelevance. Isn’t it better for DOJ to continue on its present course and, if the facts warrant it, prosecute irrespective of who the defendants are? Yes, Trumpers will howl and they may even riot. But they’ve done that already and the system is dealing with them. And, yes, they’ll see a prosecution of their hero as political persecution. But that’s still preferable to NOT prosecuting when the facts are to hand.
My only complaint about posts like this, of which there are many from Dr. Wheeler, is that they so often cost me money. This site MUST remain financially viable.
Yes, absolutely! Here’s a donation to the kitty.
I think the government still owns it and leases it through the GSA.
The prosecutors work in secret. But Cheney and Schiff and the rest of the committee work though the media. Rep. Cheney is setting up invocation of Art 3, of the 14th Amendment. Working the Rep senators and the sensationalist electronic media to see that as inevitable, along with a 3rd party candidate if Trump should somehow win the nomination would be the ultimate disability. Her remarks approached that possibility, with an explicit announcement. Things take time.
The committee is working very quietly behind the scenes. Cheney, Schiff, and the committee members have been very limited in their media appearances, and their public committee meetings have been very focused and sober. They have not called witnesses to testify in public (yet), nor done any grandstanding or sensationalistic posturing.
The staff working for this committee is quite something. Per wiki:
Those are some highpowered folks working quietly behind the scenes.
Liz Cheney was blunt this morning.
On ABC:
On CBS:
She did not make an explicit announcement, sorry for the omission.
I think they hit every Sunday morning talk show. So that’s their first push.
Who’s left to make the excuses in the counter argument?
Because of his stated concern about martyrdom, I wondered what Sarat might have thought about Timothy McVeigh. I came across an article he wrote 21 years ago which I cite below. The ethical dilemma Sarat discusses involves how those who object to the death penalty might accept McVeigh’s own acceptance of his death penalty.
Personally, I find this very interesting, mostly because I have a strong belief (whether accurate or not) that letting McVeigh go quietly has another whole dimension to it, independent of whether or not one supports the death penalty.
Having had the experience I had with white supremacists and inept (and maybe corrupt) government officials, only a couple of years after the OKC bombing, I firmly believe it was a huge mistake to let McVeigh go quietly. Instead, I think there should have been a concerted and extensive effort to educate the public about fascism at that time, and ferret it out of institutions like the military where it was very obviously taking hold at that time.
That kind of effort might also have been helpful by the Dept. of Education, the Dept. of Agriculture (which, interestingly provides various kinds of relevant training to local governments,) and DOJ. Had those things happened, I might not have found myself in the circumstances that I did. And we, as a nation, might not be in our current predicament. I could, of course, be wrong. But I’d like to think it would have helped.
As happenstance would have it, I recently watched The ABC Murders (3 parts) with John Malkovich (Hercule Poirot.) I mention this because it poignantly illustrates how individual acts of corruption can emanate outward into collective acts of evil, similar to ripples from a pebble thrown in a pond.
I know very little about Sarat. But I do suspect many of us (including me) may be having difficulty dealing with cognitive dissonance. The best way to handle that is to listen to those who can
sort out the facts and set us in the best direction. Like Malkovich’s Poirot, despite constant trolling from others, Marcy excels at revealing the truth and generously shares it with us. And that is one of the primary reasons why I have some confidence in what might happen in 2022.
“Let Timothy McVeigh Go, Let Him Go Quietly” – Austin Sarat, Jan. 3, 2001
https://www.latimes.com/archives/la-xpm-2001-jan-03-me-7550-story.html
“Let him go quietly” can be rephrased as “Keep things quiet”.
I’m thinking things like Nixon being pardoned, the Roman Catholic and many other churches hushing up child abuse and industries and institutions hushing up sexual assault, and the hushing up of things like the harms of cigarettes, some pharmecueticals and asbestos, and the contamination of cell lines by HeLa, now look to have erroded the credibility of all institutions leading to a huge increase in cynicism and an openess to conspiracy theories as reasonable replacements for official communications for qualified people.
And contributes to feelings of helplessness, apathy, and discouragement among the majority of Americans who oppose this cabal of criminals. I hear it all the time when discussing this with friends – “nothing will ever happen,” “they always get away with it,” “I can’t change things.” When TFG was elected, we were already exhausted, and one of my biggest fears was that we would just get worn down and too tired to fight back. Some type of accountability – even just charges – would be a big win (and lift) for our side.
I’d vote so hard for an administration which used the DOJ mainly to ferret out corruption and white-collar crimes. A purge of anyone, on either side of the aisle, who has the slightest whiff of corruption is long-overdue!
I find it so very frustrating that MW has been putting this information, this proper overview of things, out from the very beginning. People who purport to be experts should definitely know more than I do. I can’t but feel that a good portion of the “confusion” is willful confusion. So many people want things to remain hazy, to be uncertain, to boil down to gut feelings or vague theories about what would keep rightwing idiots from revolting. I notice that liberals are frequently being invited to avoid promoting their views too hard for fear of backlash. The one thing certain is that progressives are wrong and should be blamed as often as possible. Bitch, bitch, moan, but in any case, clarity like this is balm for the soul. Thank you.
Awesome and thank you. IANAL by any stretch of the imagination but I do send copies to my wartime friends and families. Many feel that you are spot on and thank you for the relief they feel after reading what you write, your logic seems impeccable.
So Professor Sarat is advocating a policy of appeasement? Not to prosecute Trump on the grounds that the backlash from his MAGA mob would be too much for the country to bear would seem to be only providing him with a bigger soapbox from which to declare again, “No collusion! No obstruction!” regardless of what explanation the DOJ might offer to account for its decision. Trump and his followers would just become more emboldened. The perception would be that all the years of investigation, including two impeachments, had been a total witch hunt after all. In their world, Trump would not only be vindicated but untouchable. That outcome seems a far worse scenario than the one Professor Sarat fears.
I admire the repeated hammer blow effects of “The question is whether …” paragraphs in the middle section of the post where Dr. Wheeler catalogues the January 6th insurrectionists convicted to date and shows how their guilt is shared by Trump in each and every case.
Yes, appeasement was on my mind, too. We all know how that famously went, and goes…
What takes a man over the decades from making that assignment to now advocating a reverse Comey? [Generally, experience with boundary issues.]
There’s a lot of sickness in saying DOJ should violate policies both to side step a (purported, in that scenario) lawbreaker while deviating from other of its norms.
Let’s violate more rules so we can cower in the face and further the interests of the nation’s most inveterate destroyer of institutions, and thus become him.
That’s some bend and break defense, alright. Mores no more.
What always amazes me is the willingness of the courtier press to continue to believe that the GQP is interested in democracy (today’s MTP interview by Chuckles is merely the latest of a long line). The GQP from top to bottom have demonstrated repeatedly that power is their lodestar, nothing else. The press needs to point that out, but addicted to bothsidesism and horse race reporting that downplays GQP offenses and Biden’s economic successes in spite of GQP resistance, the courtiers will never risk their future access to the next GQP WH.
Semi-related, MTG has been purged from Twitter and for good measure has started a spat with Dan Crenshaw for not being “conservative” enough and hurting her “brand” (must be Ty-D-Bol). I can’t imagine that will set well with Crenshaw. Stay tuned for more desperate lashing out that might take down some useful GQP idiots.
I see Manchin is willing to re-engage on BBB, if the Child Tax Credit isn’t improved (it costs too much, he says) but I don’t trust the guy. The GQP and McConnell is using Manchin (and probably Sinema too) to see where Biden’s red line is so they can block everything. Manchin isn’t going to get what McConnell is promising him because Moscow Mitch lies like he breathes.
Lastly, I look forward to the J6 committee’s open hearings since Ivanka was apparently there in the WH with first hand info.
The Jan. 2nd Editorial in The NY Times acknowledged how on the surface it all seems like normal politics but January 6th and the efforts afterwards to suppress voting and install election officials who will be amenable to overthrowing elections reveal a large part of the Republican Party as authoritarian.
I suspect that many in the news media know that there is something really wrong but are too used to access journalism and too lazy or perplexed to change their analytical framework of “fair and balanced”.
Even though The NY Times Editorial Board recognizes that the Republican Party is fast becoming an enemy of democracy, it doesn’t know what should be done about that or if, it does know, it really isn’t showing much interest in day to day change. I suspect that the news media is comfortable pretending that it is business as usual.
What we now know about the concerted efforts of Trump allies in and out of government to overturn the lawful election of Biden should be sparking horror and disgust. Maybe the responsible news media is waiting for the Jan. 6th Committee or DOJ to lay it all out. Or maybe they are in the appeasement camp and just hope that everyone will suddenly come to their senses.
Brian Tyler Cohen is another commentator following Ms. Wheeler’s blog closely. I suppose they are trying to make her writing accessible to people who don’t read well.
Well damn!
What an article and what a comment thread!
It’s material like this that brings me by every day to see what’s up and gives me hope for the future of the country!
Well damn! And a happy new year, one and all.
IIRC, the Mueller investigation foundered upon a command decision that a sitting president could not be indicted– but once unseated, prosecutors from the DOJ could follow the roadmap laid out in the Mueller report to levy charges surrounding TFG’s corruption of the 2016 election. Instead, and as evidenced by all of the preceding, we’ve seemingly forgotten all about those crimes and are debating whether the Jan 6 corruption should be investigated and prosecuted. I see much better now how the Memory Hole works and how voracious is its appetite.
Brett Favre has the most consecutive starts at quarterback with 321.
Merrick Garland is holding a record 362 days of reading the cards.
A crafty poker player – yes. A devotee of Vegas’s Harry Reid – never.
The 1-6 Committee has just dealt him a straight flush
Liz Cheney is running interference for him.
We are in The Red Zone.
The clock is ticking… pull another Brady.
Spike the Gronk fucking ball.
Trump is a martyr only for a deluded few. To not prosecute him would be to hold him above the law. The big danger is Trump is not convicted: he gets off on a technicality or a gap in the law. The Magahats would have the last laugh and the cynical who vote for him claim business as usual. That risk is worth taking.
OT: Reading Griswold v Connecticut made me think the workaround to the Texas law would be a marriage chapel-clinic.
Everything in your argument, Marcy, is probably correct, and makes a very powerful case that to be equitable to those convicted Trump should be prosecuted.
But it sadly does not actually invalidate the reasons for Prof Sarat’s fear. Sometimes in this complex world, with its morass of politics, ethics and law, there is no right answer. When feelings get high, even if these feelings are outrageous, bad things can happen.
Look at the situation in the North of where you now reside. You and I would almost certainly agree on the correct ethical solution, but people would undoubtedly die, as may have died already, in the search for that solution.
Never think, “It can’t happen here”. It really can. I’m sure (no correct, that I really hope) even in the ranks of the GOP there are many who would deplore widespread violence, but they may have lost control of the mob.
If we are already in a Munich Crisis, appeasement would seem to be a form of unilateral disarmament, not a winning solution.
I think the answer is this: Prosecute Trump, then arrest anyone who commits crimes in response and prosecute them. Hard.
It can’t happen here. Seriously? It is happening here. Right now. It may be happening too slowly for some to see it. But this scary ‘it’ is happening right now. Prosecuting the prosecutable is the way to stop what’s currently happening. (Tut-tuting and pooh-poohing can be done out on the veranda with a glass of wine and tiny, crustless sandwiches; real work needs to be done everywhere else.)
Troubles, you say? Robert Pape, Director, University of Chicago Project on Security and Threats (CPOST) finds the US is already analogously there (with a small minority supporting the violent potential of an even smaller number of Americans):
https://www.theatlantic.com/magazine/archive/2022/01/january-6-insurrection-trump-coup-2024-election/620843/
By Barton Gellman December 6, 2021
[As well, they find that the FBI is not modelling this threat correctly, going with a “lone wolf”/-ish heuristic. Very much worth the read for all to wrap their heads around a more potent model of Trumpist violent extremism. Kathleen Belew is also quoted. ]
As I said above, appeasement is not the way here. There are other ways to take strategic care with any potential Trump(-adjacent) charges, as I’ve said in prior discussions [namely via the layering-up approach that DOJ appears to already be taking, to include meaningful (impending) consequences for the relatively free-wheeling militia orgs, members, and their imitators].
Pape was interviewed for yesterday’s NPR’s Here & Now episode — begins at 26:11 at link:
https://www.npr.org/2022/01/03/1069957068/what-we-know-about-the-jan-6-rioters-chinas-ambitious-winter-olympics-plans
He makes the point that the Jan 6 perps are mainstream Americans, but I think there’s still a component or two missing from the meta profile. First, these are people who were willing to take action which required an investment of financial resources, and second, these people were motivated by media they consumed. We don’t know exactly what media, social or news media, they consumed. We also don’t know if these people were gradually identified for their likelihood to be radicalized to action. What Pape says about these people coming not from red states but transitional locations where non-Hispanic white population has fallen the most suggests there’s a targeting process involved.
I would love to know what their Facebook accounts would reveal — had they been narrowly identified over time by their consumption habits, acting like A/B switches to sort them out of a larger group? Wish we could hear Facebook whistleblower Frances Haugen on this.
Did you see this, Rayne?
“Facebook Hosted Surge of Misinformation and Insurrection Threats in Months Leading Up to Jan. 6 Attack, Records Show” – Craig Silverman, Craig Timberg, Jeff Kao, Jeremy B. Merrill, 1/4/22
“A ProPublica/Washington Post analysis of Facebook posts, internal company documents and interviews, provides the clearest evidence yet that the social media giant played a critical role in spreading lies that fomented the violence of Jan. 6.”
https://www.propublica.org/article/facebook-hosted-surge-of-misinformation-and-insurrection-threats-in-months-leading-up-to-jan-6-attack-records-show
Thanks, I’ll add that to the queue.
In case it wasn’t clear it’s not Pape et al. calling them lone wolves but the standard FBI modeling. I’ll use that clarification to pivot to your point about targeting: what’s collecting these individuals into a (at times) disparately-located (and perhaps later converging) pack baying at the same moon?
Add to your list of cultivators in-person LARPer rallies/events — for all the misc. Trumpist victim-causes — which get multi-platform (incl. MSM/local newspapers) media coverage.
The in-person events along with Manafortian/IRA/CA-style FB coordination are common in the areas with which I am familiar which house clusters of the insurrectionists. [I can’t help but recall here the IRA’s social media ads/posts for (fake) rallies in support of (PA) *coal miners* in the Mueller report (with swiped photos and all). … besides their offers for rally set-up in FL, etc. They’ve (the whole cabal) come a long way, baby…]
These areas are characterized by the counties with diminishing non-Hispanic white populations like Pape et al. found.
For ex., nearby Bucks County (home of Ryan Samsel) was at one time the/one of the top counties for Capitol arrestees. [GWU’s front page now lists FL, PA, & TX as the top states for Capitol cases in raw numbers.]
Today, Bucks is a hotbed of school-board protest/candidacy. And speaking of funding, one of its wealthy residents funded such upstart candidates all over the country.
But at base I feel this is about simple belongingness (if of a twisted, hijacked sense at times) and so people would be motivated to self-sacrifice for this social cause, this social audience absent any immediate financial help/gain. They’ll do for (themselves, families) maga what they won’t do for their (selves, families) communities around e.g. safer pandemic behavior.
It’s a growing, forward-feeding, multimodal process which is also compatible with the Orban/Hungary model of fascist takeover moving (generally, if not uniformly) from the more rural/exurban to more (sub-) urban poles. The near-urban fracases like in Bucks serve as important nodes which suck-up both larger-outlet media coverage (besides whatever else is going on on FB/sm) and cast shadows towards the hinterlands.
“Yet I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.”
I can understand Sarat’s fears above.
But how reasonably grounded are they?
Trump already is “a martyr” in the eyes of his supporters – he has had a Presidential election, which he “won”, “stolen” from him, and been twice “unjustly” impeached.
DJT supporters are engaged in endless furious attacks on whatever they think will progress their cause – an increase in attacks on Biden’s DOJ claiming “using prosecution as a political weapon” would not be remarkable but merely another re-targetting of furious attacks.
Violent outbursts, like people who were spurred on by Trump over-running the Capitol, have already occurred without Trump having been charged – signalling a hand-off approach to any substantial crimes by DJT seems unlikely to reduce these “violent outbursts” .
The country is plunging towards an abyss in which an authoritarian Executive functions above the law while fomenting divisiveness and conspiracy fantasies in electors – we’ve already seen that DJT can send energetic supporters in to overrun Congress in an attempt to both overturn a valid election and stop a Constitutional process and still retain his supporters – not prosecuting DJT would not seem to turn the country away from this plunge.
What might go wrong, according to Sarat, is actually largely what is already happening.
Sarat’s prescription of DOJ not charging DJT has already failed.
As Badger Robert has pointed out, Jeff Davis wasn’t prosecuted. And the Civil War is still going on. The Nuremberg defendants were tried and mostly hung. WWII is over, except maybe in Russia. That’s why I’m all for prosecuting Trump. (And I went to law school with Austin!)
Failing to prosecute if there is a solid case for prosecution is likely to result in the application of the concept of “No good deed is left unpunished.”.
Nixon was pardoned and his ardent followers think he was unfairly hounded out of office. And impeached Clinton as payback.
Iran-Contra is erased from public memory.
GWBush is never held accountable for the failures that led to 9/11, the lying that got us to invade Iraq and the botched occupation. Yet Democrats are the ones tarred and feathered.
Very few are held accountable for the financial irrational exuberance during GW Bush’s tenure that got us into the Great Recession. Yet Democrats are remembered for increasing the deficit. And bankers and financial wizards vote in deregulation friendly Trump.
National unity is a great good but I don’t think it can be bought by letting the culpable evade responsibility. Mercy after complete confession and accountability would be better for the country.
Have you seen any of that happening? No? How about letting the process work. It is still incredibly early, less than a year in. It is oh so easy for people on the internet to understand the scope and dynamic of such an undertaking. But it is not all so easy. Marcy has relentlessly pointed out how this is being done and progressing. Perhaps a little bit less of clamoring from the cheap seats is in order.
Perhaps I should have been clearer.
Don’t prosecute until and unless there is a solid case for prosecution. Take whatever time is needed to do it right.
The time to talk about moving on, reconciliation and unity is after all of the relevant and material facts have been established, not before.
Yes.
The current talk about “time to move on” seems epidemic for a few years. It was also a prime mover at the end of the Sackler family case, when the judge and defense agreed that they needed to move on immediately afterward, and enjoy their money without concerns of any more lawsuits. Guilty parties should not be able to move on until they’re fully prosecuted.
As posted at TPM today, this was another prong to the conspiracy to shoehorn DJT into the Presidency. This demonstrates again why Sarat’s argument is BS, because ALL stops will be pulled out when the GQP tries again. We already have the voting structure element in progress now with gerrymandering and suppression.
I do wonder why SCOTUS was targeted since nothing was really before them yet, perhaps just garden variety intimidation to work the refs for later.
https://talkingpointsmemo.com/muckraker/january-6-supreme-court-rally-insurrection
Trump doesn’t want to get caught and be punished, but he delights in being caught and going unpunished.
Sarah Kendzior
If Trump should be prosecuted for obstruction because he influenced a shit ton of people to do illegal things for him. Would that not also expose him to Manslaughter/Murder charges for those who died that day (Ashli Babbit would not have been there had he not called people to Washington) doing corrupt illegal things on behalf of TFG? I mean, in a BUNCH of these plea agreements, I’ve read the defendants stating quite clearly “I was only doing what the president asked”, and, isn’t the killing of another individual in the act of committing a felony apply that killing to those involved in the original felony?
Is there exposure to the more serious crime here if that corrupt influence is legitimately applied?
Please say Manslaughter/Murder
Speaking strictly for myself, watching the riot live that day and seeing Trump tweet that Mike Pence was not ruling against Biden’s certification filled me with the chilling realization that Trump was trying to get Pence murdered by the mob or at the very least did not care at all if his “very special people” murdered his own Vice President.
Mikie knew that the boss “wouldn’t like him as much” if those votes got the certification, but Mikie went on and snubbed the boss and certified em – see?
No way the boss is sending Mickie chocolates after that.
And yes I find it chilling seeing more of what Trump is capable of.