• They Need the Indictment to Beat Trump 2024

    August 14, 2022 // 8 Comments »

    Get it yet? The point of the raid on Mar-a-Lago and the J6 hearings is aimed at one man. Nope, not Donald Trump, Merrick Garland. It is aimed at one end: get Garland to indict Trump for something and failing that, to indict the highest ranking person near Trump in hopes it will rub off on the near-certain-to-be Candidate.

    The reason for this is that nothing else worked. Democrats pointed the full national security apparatus at Trump, with the FBI doing yeoman-like duty, and turned Robert Mueller loose with unlimited resources for a full year to find something Russian to indict Trump on, going as far as to suggest he obstructed an investigation which found him innocent. Alice in Wonderland stuff, that. After wading through reams of FBI investigative malfeasance to include but not limited to lying to get FISA warrants and accepting an obviously wholly-fictitious dossier as fact for months, Mueller could not find a single issue worthy of bringing to an actual court. So Democrats impeached Trump, twice, one of which was little more than a policy difference over a Ukraine few outside the DC Bubble cared about then but sure as hell do now. The aggressive Southern District of New York (SDNY) was unleashed on Trump’s finances and real estate work, given a grand jury to take testimony, and still came up with nothing indictable. And that is leaving aside the reality the IRS has had Trump’s full tax records for decades of audits and again came up with nothing indictable.

    Dems’ whole remaining strategy for 2024 is to make people believe Trump does not support America’s democracy. Propaganda/journalism/TV hearings failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition like angry monkeys. Some goofy tax problem in a state court or empty process crime will not be enough. It is hard to imagine Trump taking with him some classified documents will be enough, despite the high-profile raid on Mar-a-Lago.

    With the Democratic midterm massacre scheduled for November, Dems know they now have about 12 weeks left to indict Trump or someone near him. Republicans are already drooling over the prospect of shutting down the FBI and the J6 Headline Committee Machine and opening their own investigation into Hunter and Joe Biden’s financial tomfoolery in Ukraine and China. So it is now or never for the Last Man Who Can Trump Trump, Merrick Garland.

    Garland seems a rare person in 21st century Washington, a man with a moral compass. Appointed Attorney General by Joe Biden, many Dems expected Garland to be an angry beast of a prosecutor. After all, the only reason he does not now sit on the Supreme Court (he might have saved Roe!) after being nominated at the end of the Obama administration was Republicans refused to allow him a Senate hearing. The unfairness of it all is supposed to be eating at him, and he should be out of blood to take down the Republicans once and for all by slashing Trump at the knees.

    Garland instead seems lost in a kind of Jeffersonian Zen state, promising to follow the law and respect the civil liberties of all. In an interview’s worth of softball questions on NBC Nightly News, Garland sounded more like Mr. Rogers than a prosecutor atop his fiery pulpit. Yes, the DOJ is investigating Trump, et al, alongside the J6 Committee. Yes, it’s a criminal investigation, that’s what DOJ does. No, he has not decided to prosecute because all the information is not in. No, it doesn’t matter Trump is a former and maybe future president, the law is blind to that. Listeners were left waiting for him to say “And now anything else troubling you, young fella?”

    The problem is despite all the cries about democracy under attack, there seems little to indict Trump over, and Garland seems to sense that. The original Great Dem Hope, incitement (often expressed as treason or sedition by pundits) is not mentioned much anymore. Among other problems, incitement requires a showing of intent — that the speaker wanted the crowd in this case to attack the Capitol not just protest there — and no witness has come up with anything remotely applicable and Trump’s own words fall far short. The idea that Trump spoke and the mob rioted seems attractive on TV (one thing followed another so they must be related, right?) but does not meet any legal test worthy of actual indictment. Merrick Garland knows that, even if Liz Cheney pretends she does not. The J6 people can pitch a criminal referral but that changes nothing for the man who has to actually decide if there is anything legally actionable he can take to court. It’s the gap on display between no standards and very high ones. It is very unclear anything Trump took with him to Mar-a-Lago would rise to the level of indictment after he blames staff and the movers for inadvertently packing the wrong stuff.

    What will be left for Garland is some sort of charges of conspiracy to defraud the United States. This would have to take the form of persons planning to set in motion some sort of process which would have negated or at least scrambled the results of the 2020 election sufficiently that Trump could have claimed a victory and see what happens next. Garland is under huge pressure from the Democratic left, who know their time in power is numbered in weeks, to squish and squeeze the goofy rhetoric Trump’s lawyers were spouting into an indictment along those lines.

    This indictment, if it comes at all, will probably not include Trump who, like any client, is not responsible for what his lawyers (or the movers) said or did. Instead, Trump lawyers John Eastman and Jeffrey Clark will likely bear the brunt of any legal opinions rendered, while the press and Dems try to drag the stain off them on to Trump. Both men recently were aggressively served with search warrants. Both men came up with complex schemes to negate the 2020 election, with no chance of success, just to placate their client, Trump. Eastman mumbled about old election law to “spin a yarn” the vice president might be able to exclude state-certified electoral votes based on speculative vote-fraud suspicions. Clark said even though the Justice Department found no evidence of voter fraud the fact that it was still investigating while Trump’s campaign claimed other election irregularities could be used to nudge contested states into auditing their elections.

    If Garland is pressed to indict Eastman and Clark, he’ll face accusations that his jurisprudence is politically motivated. He’ll also face practical problems such as seating an unbiased jury. But if he thinks the cases will lead him to Trump, he’ll hit a stone wall. Trump’s conversations and interactions with his lawyers — the stuff that can reveal intent and state of mind — are protected by both attorney-client privilege and by executive privilege. The latter will also cover nearly every official who directly interacted with Trump. Garland could easily find himself facing a Supreme Court fight over the limits of such privilege which would run past 2024.

    As for the work of the lawyer’s themselves and their possible indictment, Orwell would call what they might be accused of thought crimes. The legal advice was frivolous. It had no connection to the riots. It was never acted on. It is unclear what impact the opinions made anywhere, even their impact on Trump himself. In any normal world drafting a legal memo is hardly a crime. Yet they may yet prove just barely enough to bring an indictment against Trump’s lawyers and minimally satisfy the Democrats’ blood lust. The last hope is their indictment will stick to Trump and that — that — will dog him into defeat where everything short of shooting someone on Fifth Avenue has not. Call it a long shot.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Trump

    Liz Cheney and Her 14th Amendment Comedy Show

    February 5, 2022 // 9 Comments »

     

    The Democrats’ newest champion (Michael Avenatti did not return calls) Rep. Liz Cheney just about said the quiet part out loud: her January 6 Committee has the singular goal of pre-defeating Trump ahead of any voting in 2024. As it becomes clearer the Committee is failing in its propaganda campaign to get Republican Party powerbrokers to dump Trump, and as it is near crystalline the Committee will not find evidence leading to formal prosecution of Trump for sedition, treason, or insurrection, they are getting desperate. The latest? Purposefully misinterpreting an obscure phrase from a post-Civil War Constitutional amendment.

    Cheney said “I think one of the really important things that our committee has to do is lay these facts out for the American people, so that they inform us in terms of our legislative activity going forward.” Cheney is talking about one phrase from the 14th Amendment, no doubt presented to her by an intern applying a Control + F search for “insurrection” to an online text of the Constitution. This is a familiar strategy for the Democrats, having purposefully taken phrases out of context from the 25th Amendment and the Emoluments Clause trying to force Trump from office for four years.

    While the 14th Amendment was written primarily to grant citizenship and rights to freed slaves, it also created the “equal protection clause” which cornerstoned landmark cases including Brown v. Board of Education, Roe v. Wade, and Bush v. Gore. But tucked away in Section 3 was a bit of post-civil war housekeeping, the phrase “No person shall hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The 14th also provides for Congress to enforce the provisions via legislation, and Cheney thinks that’s the key to Democratic success. Seriously.

    The intent in 1868 was to prevent Confederate leaders from returning to power. But the January 6 Committee is in 2022 so lacking in substantive content that they are considering some sort of legislation labeling Trump an insurrectionist, and thus prohibiting him from taking office again, even if he were to win the election. Cheney is not alone; Maryland Democratic Rep. Jamie Raskin has also called the use of the 14th a “live proposition.”

    Section 3 does not have a particularly glorious history. Reconstruction Era prosecutors brought civil actions in court to oust officials linked to the confederacy, and Congress in some cases took action to refuse to seat Members. Section 3 was last used in 1919 against a socialist congressman accused of having given aid and comfort to Germany during WWI. The congressman was eventually seated after the Supreme Court threw out his espionage conviction. Currently the only criminal punishment left on the books dates to 1870 and makes it a misdemeanor to run for office when ineligible to do so under Section 3. So while the Constitution does specifically refer to legislative action by Congress as a way to enforce Section 3, precedent clearly shows due process and litigation would step in. Imagine Cheney or anyone trying to label someone who controls the loyalty of roughly 50 percent of Americans an insurrectionist through a show of hands.

    Such legislation would also have to pass both houses and be signed by the president, something beyond a non-starter. The question of whether Section 3 is actually an unconstitutional Bill of Attainder is also not fully resolved. A Bill of Attainder in simple terms is a piece of law designed solely to punish one person, an argument the Democrats of 1868 themselves used to try and prevent Section 3 from even becoming part of the Constitution. The question was left largely unsettled as old Confederates died off and the use of Section 3 effectively ended in 1919 except in the fevered brains of people like Cheney.

    There is also the open question of whether use of Section 3 against Trump would represent an unconstitutional ex post facto law. The drafters of Section 3 were clear their intent was precautionary, looking not to punish Confederates for the past but to prevent them from taking power again in the future. It was not a measure of punishment, but a measure of self-defense, and the bar was set very high: participating in actual warfare against the United States that took the lives of millions in pursuit of breaking up the Union. In Trump’s case, given that his offense would be being voted an insurrectionist over a year after making a speech to keep him from the White House, it would be very hard not to see it as punishment.

    More problems? Section 3 prohibits someone from taking office, not from running for election. Imagine Trump conducting a three year campaign, winning the race, and then being prohibited from taking office over a clever interpretation of some words from 1868 clearly meant for a wholly different purpose.

    The use of the 14th Amendment to end Trump is the kind of thing non-experts with too much Google time can convince themselves is true. Given that there is no realistic possibility of preventing Trump from taking office in 2024 under Section 3 of the 14th Amendment, what is this all about? Most superficially it is a chance for a trog like Liz Cheney to get on TV spouting some quasi-legalistic garbage. It will be diluted through CNN as “Trump’s election is barred by the Constitution” and “Trump is in violation of democracy” and repurposed into Lincoln Project Facebook memes.

    But more substantively, silliness like Cheney’s is a sign of increasing desperation by the Democrats, three full years before the election. Increasingly sure they will lose at the ballot box, the Dems strategy is to prevent Trump from ever reaching the ballot box. Failing to be able to prosecute him, they have only left to persecute him, across tax courts in New York, the January 6 Committee, endless manhunts for Capitol trespassers, and the like. For a party that cries continuously that democracy is in danger, the Democrats act increasingly like thugs in a banana republic trying to bring down their opponents extra-electorally.

    Political prosecutions are not new in America. Political pogroms are. It is sad to watch the Democratic Party embrace such third-world practices as policy.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Trump