Whereof One Can Speak 🇺🇦 🇺🇦 🇺🇦

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Finally, Some Confirmation

The Washington Post reported tonight:

The Justice Department is investigating President D____ T____’s actions as part of its criminal probe of efforts to overturn the 2020 election results, according to four people familiar with the matter.

Prosecutors who are questioning witnesses before a grand jury — including two top aides to Vice President Mike Pence — have asked in recent days about conversations with T____, his lawyers, and others in his inner circle who sought to substitute T____ allies for certified electors from some states Joe Biden won, according to two people familiar with the matter. Both spoke on the condition of anonymity to discuss an ongoing investigation.

The prosecutors have asked hours of detailed questions about meetings T____ led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions T____ gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of T____’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.

In addition, Justice Department investigators in April received phone records of key officials and aides in the T____ administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter. That effort is another indicator of how expansive the Jan. 6 probe had become, well before the high-profile, televised House hearings in June and July on the subject….

There are two principal tracks of the investigation that could ultimately lead to additional scrutiny of T____, two people familiar with the situation said, also speaking on the condition of anonymity to discuss an ongoing investigation.

The first centers on seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on Jan. 6 and on two leaders of far-right groups, Stewart Rhodes and Henry “Enrique” Tarrio, who did not breach the Capitol but were allegedly involved in planning the day’s events.

The second involves potential fraud associated with the false-electors scheme or with pressure T____ and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged and votes were fraudulently cast….

What He Knew and When He Knew It

Charles Pierce of Esquire points out a big difference between the Watergate scandal and the attempted coup that led to January 6th:

As it happens, Tuesday was a kind of anniversary. On June 28, 1973, Senator Howard Baker, Jr. (R-Tenn) of the Senate Select Committee On Presidential Campaign Practices —the Watergate committee — began his questioning of former White House counsel John Dean, who had spent several days laying out with bloodless precision what would become known as “the White House horrors”. Baker asked the question that made him famous.

The central question at this point is simply put: What did the President know and when did he know it?

Nobody asked Cassidy Hutchinson that question. It was moot. The answer, as she spent Tuesday telling the committee, was “Everything” and “Immediately”.

The Insurrection Was Only One Step in the Attempted Coup

The radical reactionaries on the Supreme Court didn’t get a chance to overturn the 2020 election, although given how five Republican justices handed the presidency to George Bush in 2000, they might have been willing. 

It’s important to distinguish between the attempted coup and the January 6th insurrection. Sidney Blumenthal, a former Clinton advisor, explained the distinction on January 6, 2022, for The Guardian:

The insurrection was not the coup itself. It was staged as the coup was failing. The insurrection and the coup were distinct, but the insurrection emerged from the coup. It has been a common conceptual error to consider the insurrection alone to be the coup. The coup, however, was an elaborate plot developed over months to claim that the votes in the key swing states were fraudulent, for Mike Pence as the presiding officer of the joint session of the Congress to declare on that basis that the certification of the presidential election on the constitutionally mandated date could not be done, to force that day to pass into a twilight zone of irresolution, for House Republicans to hold the floor brandishing the endless claims of fraud, to move the decision to the safe harbor of the House of Representatives, voting by states, with a majority of 26 controlled by the Republican party, to deny both the popular vote and the electoral college vote to retain T____ in office, for protests to breakout at federal buildings, and for the president to invoke the Insurrection Act to impose law and order.

Presumably, any gesture to forestall the coup by the joint chiefs would be communicated at once to T____ from his agent, Kash Patel, a former aide to far-right representative Devin Nunes), sworn enemy of the “Deep State”, embedded as chief of staff to the acting secretary of defense, and presidential orders would be issued to countermand. The rally on 6 January – “will be wild”, T____ promised – was a last-ditch attempt to intimidate the vice-president with the threat of violence into fulfilling his indispensable role in the coup, to lend support to the Republicans objecting to certification, and to delay the proceedings into a constitutional no man’s land. …

The insurrection may also have been intended to provide a pretext for precipitating clashes with anti-T____ demonstrators, following the example of the street violence and multiple knife stabbings perpetrated in Washington by the neo-Nazi Proud Boys chanting “1776” on 12 December, and which would then be an excuse for invoking the Insurrection Act. In the criminal contempt citation of Meadows for his refusal to testify before the select committee investigating the US Capitol attack, the committee noted that Meadows sent an email the day before the assault to an unnamed individual “that the national guard would be present to ‘protect pro-T____ people’ and that many more would be available on standby”. From whom would “pro-T____ people” be protected?

In the midst of the attack, the House minority leader, Kevin McCarthy, managed to reach a preoccupied T____, who was riveted viewing the unfolding chaos on television at the White House, closely monitoring whether the coup would finally succeed, taking phone calls from Jim Jordan and a host of collaborators, and fending off urgent pleas to call it off … T____’s first reply to McCarthy was to repeat “the falsehood that it was antifa that had breached the Capitol”, according to the Republican representative Jaime Herrera Beutler.

McCarthy argued: “It’s not Antifa, it’s Maga. I know. I was there.” “Well, Kevin,” said T____, “I guess these people are more upset about the election than you are.” “Who the fuck do you think you are talking to?” McCarthy inquired in an uncharacteristic display of testosterone that soon was replaced with his regular order of servility …. The absence of antifa, and McCarthy’s refusal in the heat of the moment to lend credence to the phantom menace, may have condemned any false-flag thought of invoking the Insurrection Act. Meanwhile, the bayonet-ready national guard idly awaited orders for hours to quell the actual insurrection. …

The coup was hardly T____’s full-blown brainchild. It was packaged for him. It was adapted, enhanced and intensified from longstanding Republican strategies for voter suppression. The coup was a variation on the theme from a well-worn playbook. T____ eagerly grasped for the plan handed to him.

More than a year before the election of 2020, in August 2019, conservative operatives in closely connected rightwing organizations began preparing a strategy for disputing election results. A “Political Process Working Group” focused on “election law and ballot integrity” was launched by Lisa Nelson, the CEO of the American Legislative Exchange Council (Alec), heavily funded by the Koch brothers’ dark money syndicate, the Donors Trust. …

The investigative reporter Anne Nelson, in her book Shadow Network: Media, Money, and the Secret Hub of the Radical Right, describes the CNP as a nexus of “the manpower and media of the Christian right with the finances of western plutocrats and the strategy of rightwing Republican political operatives”.

A board member of the CNP, Cleta Mitchell, a lawyer at the center of a host of rightwing groups, assumed control over the Alec-originated project and moved it forward. Mitchell was instrumental in devising the blueprint for the coup. On 10 December 2020, 65 leading members of the CNP signed a succinct step-by-step summary of the completely elaborated plot that went little noticed except on the coup-friendly rightwing website Gateway Pundit:

The evidence overwhelmingly shows officials in key battleground states – as the result of a coordinated pressure campaign by Democrats and allied groups – violated the constitution, state and federal law in changing mail-in voting rules that resulted in unlawful and invalid certifications of Biden victories. There is no doubt President D____ J T____ is the lawful winner of the presidential election. Joe Biden is not president-elect. Accordingly, state legislatures in the battleground states of Pennsylvania, Arizona, Georgia, Wisconsin, Nevada and Michigan should exercise their plenary power under the constitution and appoint clean slates of electors to the electoral college to support President T____. Similarly, both the House and Senate should accept only these clean electoral college slates and object to and reject any competing slates in favor of Vice-President Biden from these states. Conservative leaders and groups should begin mobilizing immediately to contact their state legislators, as well as their representatives in the House and Senate, to demand that clean slates of electors be appointed in the manner laid out in the US constitution.

Mitchell was by then a T____ campaign legal adviser, with direct access to T____ and working on the Georgia challenge to the results.

Merrick Garland Has To Get It Right This Time

Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

What a Fool or Creep Believes

Back when there was a plague upon the nation (not the plague caused by the virus), the question whether the president was lying or merely mistaken was often discussed. Reputable journalists at reality-based news organizations didn’t want to say he was lying (30,000 times in four years) since maybe he believed all the nonsense he said. So, perhaps he wasn’t lying. It felt safer, less judgmental, to say he was merely saying things that weren’t true (30,000 times).

A very good reason to think he was lying his big boy pants off was that every “falsehood” he shared with us was self-serving. People who are merely confused occasionally say something that doesn’t make themselves look good. Not our former president. He never wavered from his fundamental message: “I’m a winner, not a loser”. He never deviated from the con man’s creed: “Never give a sucker (i.e. the rest of us) an even break”.

As the January 6th committee reviews the evidence, similar questions about this person’s state of mind are being asked. Did he really believe he won the election? Did he really intend to stop Congress from counting the electoral votes?

Josh Marshall of Talking Points Memo argues that trying to figure out what the creep believed is a waste of time:

For T____, there is just what he wants. He “believes” whatever will get him what he wants.

Does he somehow convince himself of this? Like some kind of willed delusion? Stop it. You’re sticking too much to your linear way of thinking about belief. He hasn’t “convinced” himself. Why would he need to and what would that mean? He just says whatever will get him what he wants. Full stop….

Trump doesn’t “believe” anything.

… It cannot be the case that someone can evade legal culpability for a crime by consistently claiming not to know things that are obviously true, that everyone around him says are true, that he has no basis for disbelieving…. Otherwise, it’s a “get out of jail free” card for literally any crime. Just say consistently that you believe Mr. X threatened your life and you’re entitled to murder him without any legal consequences.

As we know from actual trials, you can’t just “believe” anything…. Your belief has to be reasonable….

We don’t need to go down the rabbit hole of the inner workings of [his] mind. That’s his problem. Not ours. As long as we do, we’re chasing a figment where there is only one possible witness: him. That’s silly.

The mob boss who says he’s never been a member of the mob isn’t confused. He’s lying because he doesn’t want to go to prison. That’s obvious. Just as this case is obvious.

One correction I’d make: not “everyone around him” was saying he lost. Rudy Giuliani and other sleazeballs were telling him the opposite. I hope that doesn’t make any difference when he’s prosecuted.

If you want more on this topic, two well-known lawyers who’ve worked for the government wrote an article for Salon about T____’s “criminal intent”:

As apologists prepare to defend his conduct, it is important to realize how shallow their defense will be. It is laughable to suggest that T____ genuinely believed he had won the 2020 election. We already know that experts and advisers told him the election results were legitimate. He heard this from his campaign advisers, Department of Justice lawyers, high-level officials in his own Department of Homeland Security and Republican elected officials [and at least 60 judges!]. T____ knew he had lost a free and fair election, but he wanted to remain in power anyway….

The committee’s work will be helpful, providing key evidence about … what T____ and others were saying and doing in public and what they were admitting in private.

[There is also] a foundation for showing T____’s corrupt intent: his long-established pattern of crying “fraud” to undermine results he didn’t like.

After T____ lost the 2016 Iowa caucuses to Ted Cruz, he cried fraud and demanded a do-over. He did the same thing in the general election after losing the popular vote to Hillary Clinton, despite winning the Electoral College… Throughout 2020, he made a series of statements along these lines … showing that even before the first vote was cast, he had no intention of accepting election results he didn’t like….

Even if T____ could somehow convince prosecutors and a jury that he really believed he had won — despite all the evidence to the contrary —  that would not have permitted him to use dishonest means to stay in power. His legal adviser, John Eastman, made clear that the scheme he and T____ tried to execute to keep T____ in power required breaking the law. You can’t keep power illegally even if you believe you really won an election. But prosecutors won’t need to reach this point, since the evidence is so strong that T____ and those around him knew he lost.

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