I Intend To Never Mention This Again

Whitewater. Her emails. Our latest fake scandal can’t possibly generate as much bullshit as those two. Nevertheless, it’s worth being reminded of a few simple facts. Jonathan Chait of New York Magazine does the reminding with “Biden’s Document Blunder Is Nothing Like Trump’s Crime”:

The sweet spot for D____ T____’s allies has always been when they can justify his abuses and crimes through misdirected comparisons rather than direct defense. Did T____ extort Ukraine into smearing his opponent? Well, Ted Kennedy once did something kind of like this. Did T____ try to stay in office after losing the election? Maybe so, but let us tell you about the time a Democrat registered an objection to the Electoral College count in Congress.

The key aspect of these arguments is exaggeration, not fabrication. They seize on real events, often genuinely bad things done by other politicians, then use them as pretext to dismiss actions by Trump of a vastly greater order of magnitude.

As many people have very neutrally pointed out, the news that President Biden held on to classified documents is pure manna for T____’s defenders. It gives them a set of facts to work with that, if examined without any of the important context, can be spun to the willfully credulous as evidence that these men have committed similar crimes.

“There’s no good case for putting a President in prison — much less making two Presidents into cellmates — for improperly retaining materials from recent public office,” intones The Wall Street Journal. “When Mr. T____ was out on a limb by himself, this point was less obvious to some of our media competitors. Now that Mr. Biden faces a similar inquiry, perhaps they see how ridiculous it is.”

But T____ is not potentially facing charges because he improperly took classified documents. It’s because when the government found out about the documents, he refused to give them back and — allegedly — took steps to hide them from the FBI. This is not a small twist on the same crime. It is the crime.

You might say, in T____s defense, that he had no underlying motive to hold on to the documents — that is, they didn’t contain any national-security secrets he planned to sell or incriminating information he wished to hoard. That is probably true. The motive instead seems to be that T____ does not believe the law applies to him.

This is how he has operated for his entire career. He cheats, lies, and steals in the expectation that he can brazen out any consequences. He can simply refuse to let Black people rent an apartment or pay contractors what he promised them or lie to his lenders about his worth, and whatever cost he faces will be worth it. The reason his document theft rose to the level of a federal crime was that he applied this method to behavior that is covered by the federal criminal code and handled by prosecutors he can’t necessarily bully or bribe into submission.

When T____’s allies moan about his supposedly unfair treatment, the distinction is hiding in plain sight of their complaints. “Where’s the raid? Where’s the pictures of the classified documents? Where’s the special counsel?” demands Jim Jordan.

“Why hasn’t the FBI raided Joe Biden’s home?” asks Dan Crenshaw.

The obvious answer is that Biden didn’t refuse to give back the documents. Indeed, his lawyers volunteered that they had the documents and turned them over immediately. There was nothing to raid.

If T____’s lawyers had informed the National Archives that he’d mistakenly taken classified documents, or even if they had responded to requests from the archives by turning them over, the FBI never would have been involved. The documents themselves would never have become a criminal matter if T____ had complied with the law. It became one because he flagrantly refused to follow the law, which happened because T____ is a criminal.

The whole thrust of T____ist propaganda has been to act as though normal politicians making normal blunders are criminals in order to justify handing the presidency to a lifelong crook. T____ is not a smart man but shrewd enough to comprehend that his party is fully invested in a narrative of Democratic evil that compels them to deem anything he’s done, however wrong or illegal, as no different than the actions of any other powerful man. If T____ shot somebody on Fifth Avenue, Republicans would start talking about [anything else].

Meanwhile, the deputy opinion editor of the Washington Post argued today that — although Biden’s situation is clearly different — the Department of Justice shouldn’t prosecute the former president/unindicted co-conspirator/lifelong con man and scofflaw, since the Department’s “credibility rests on being perceived to play fair” and millions of Republicans won’t think it’s fair that only their guy is prosecuted. The Post’s deputy opinion editor isn’t equally concerned about the credibility of a Department of Justice that doesn’t prosecute somebody for serious crimes because his supporters will be angry.

High Crimes, Not Misdemeanors

The January 6th committee has concluded that the defeated former president committed four serious crimes: obstruction of an official proceeding of Congress, conspiracy to defraud the United States, making false statements to the federal government, and aiding or inciting an insurrection.

From Charles Pierce for Esquire:

That last word should toll like an undertaker’s bell through the rest of American history, the way it tolled for Aaron Burr and Jefferson Davis. It should toll the way it tolled for Benedict Arnold and John Wilkes Booth. It should toll deeply and profoundly, and it should echo forever.

A president of the United States has been more than credibly accused by a bipartisan select committee of the Congress of inciting an insurrection against the United States—which is to say, against you and me and every one of our fellow citizens. It should toll loudly enough to drown out any talk of polls and elections, and god knows it should drown out any attempt to minimize its significance or, worse, any attempt to equate what the former president did with anything that may or may not have been done by a Democratic politician. The committee’s criminal referrals are unprecedented in our history because the former president’s actions on January 6 were unprecedented in our history.

The Department of Justice should now act accordingly.

One More Comment from Prof. Zimmer on the Pathetic Circus We Call American Politics

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That’s Florida’s thuggish Republican governor Ronald DeSantis using his own state’s funds to gather up immigrants in Texas and put them on a plane to Massachusetts (where the arrivals were greeted warmly by local residents). History professor Thomas Zimmer had a reaction:

Leading Republican elected officials: “Let’s round up human beings under false pretenses and treat them like cargo in order to use them as props in an illegal stunt to trigger the Libs and rile up the base!”   New York Times: “Here’s a new political tactic we haven’t seen…”

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There is almost nothing so vile, so inhumane, so outrageous that the mainstream media can’t press it into the established politics-as-horse-race framework, thereby sanitizing it and presenting it as just the latest development in the struggle between Team Red and Team Blue.

Since mainstream journalism is predicated on the idea that politics is a game between two teams that are essentially the same and journalists aspire to “neutrality,” which they define as equidistance from either side, whatever comes from the [Republican Party] has to be elevated to credibility.

Sometimes that happens by presenting bad-faith nonsense as serious policy proposals – that’s what we get after every mass shooting, when Republicans claim the answer to gun violence is more guns or maybe school buildings with just one entry point, remember that one?

If that doesn’t work, then the sanitizing effect is achieved by simply ignoring the actual substance of what Republicans have done and focusing solely on the “playing politics” part, the horse race and how it may or may not be affected by these actions.

It’s one of the most bizarre features of the American political discourse that it demands we pretend these are serious political actions, coming from serious political actors, instead of denouncing them as the extremist culture warriors they so clearly are.

In a healthy political culture, anyone involved in such a deranged scheme would be shunned and ostracized, the party that elevated them would have to pay a hefty political price. In the U.S., that’s evidently not the case. And until that changes, nothing changes.

Unquote. 

There’s more to this story coming out. According to a lawyer representing the immigrants, officials from the Department of Homeland Security participated in this fiasco and falsified government documents, filling in random addresses around the US as the immigrants’ mailing addresses. If this actually happened, there needs to be serious jailtime.

Some Real World Perspective on the Case of the Purloined Papers

As I wait for the black-robed person with the lifetime judicial appointment to share her next pronouncement from on high, author and lawyer Seth Abramson expresses himself on the Florida fiasco. I especially found interesting his description of how a case like this works in the real world:

We have our special master! In a… uh… theft case… not involving attorney-client privilege or executive privilege or anything else special masters deal with… {sigh} This is all so goddamned stupid.

I earnestly admire those lawyers who are spending hours and hours analyzing the legal maneuvers in the Mar-a-Lago case. But I decided I couldn’t do it—because it’s all so stupid and farcical and pretextual and an insult to the rule of law and how {waves hands} all of this works.

I have worked *extremely* complicated criminal cases, from first-degree murders to armed robberies to felonious sexual assaults to financial crimes cases and other types of cases in which documents are at the center of everything. And let me tell you what the Mar-a-Lago case is:

It’s the equivalent of a man being caught with a gun over the dead body of his victim—smoke still rising from the gun, residue all over the hand of the shooter—with a *signed confession in his handwriting* pinned to his chest like he’s a kindergartener on his first day of school.

There is—I can’t emphasize this enough—nothing complicated about this case besides the political consequences and implications of it, which every lawyer in America took an oath not to consider when they became a lawyer (and that includes judges). So the whole thing is sickening.

The lawyers who are currently analyzing this case to death are doing so in good faith and are trying to be good people and lawyers. But they are also normalizing the idea that there are any actual complications to write about here. There are not. They are all invented and false.

There are no attorney-client privilege issues here. There are no executive privilege issues here. The defendant is dead to rights and has no plausible defense. Under normal circumstances plea negotiations would’ve begun immediately, and prison time would be a given to both sides.

I have committed myself to being honest with readers about the law, and also honest about my desire that our justice system be better than it is. How can I pretend to the readers of this feed that the Mar-a-Lago case is interesting when *legally* it is just effing *not*? At all?

And don’t tell me about this being the first case of its kind involving a President of the United States. Had Trump gone to Fifth Avenue as he once promised and gunned down a bunch of innocent civilians, would that make the resultant homicide cases *legally* interesting? Hell no.

Mar-a-Lago case talk is a flim-flam we’re sucked into because we feel like there’s no other choice. We “have” to discuss the minute details of the case for political reasons—and because T____’s the sort of criminal who’s never been held accountable and never takes responsibility.

But the other reason it seems we have to talk about it is that the federal judiciary in Florida apparently corrupt, and will openly treat a very rich and very powerful and very famous white male politician in a way that it wouldn’t treat anyone else. And it’ll do so unabashedly.

So every single reason to cover the intricacies of the Mar-a-Lago case is depressing. And I feel the world is depressing enough already. It should be sufficient for readers to simply know that T____ is dead to rights and would be imprisoned already if he were not D____ T____.

Yes, as a former federal criminal investigator, I can point out all the critical investigative steps the Department of Justice deliberately *didn’t* take—all of them dereliction of duty—for purely political reasons, which makes their repeated protestations that they’re above politics morally toxic but they could easily reply—or their defenders could do so on their behalf—that they’re just reacting to a corrupt judiciary that won’t let the wheels of justice turn unimpeded when the rich, powerful, and famous in politics are involved….

So when I write on the Mar-a-Lago case, I’ll write about a case in which the defendant has no defense and should already be in prison (remember, DOJ/NARA—extraordinarily—gave T____ 18 months to remedy his crime, and he refused *and committed more*) and the legal issues are banal….

It is true that in any case in which documents are seized, some documents not related to the investigation may be accidentally taken. These are returned *as a matter of course* (e.g., T____’s passports). If the defendant thinks some items were not returned, he has his attorney ask government agents for them back. If the government agents refuse, the defendant has his attorney go to the judge and a hearing is held and an order (if appropriate) issued. If the parties *dispute* whether something was properly taken, the judge may personally review the *handful* of documents answering to that description (and indeed it would only be a handful of documents). There would be no special master, no delay of the criminal investigation. None of the abject, embarrassing BS we are seeing in the Mar-a-Lago case.

This judge impeded a federal criminal investigation and will appoint a special master without D____ T____ having even identified any documents he thinks were wrongly taken or making any attempt to negotiate their return (or have the judge herself review them). It is all a sham.

Special masters are for cases that look nothing like this one—for instance when the office of a defendant’s attorney is searched. T____ has yet to even make the argument—because he could never make it—that he had a right to retain classified documents in his home post-presidency.

So yes, I do believe that every legal analysis of this case should begin with a disclaimer explaining that nothing about this case has been handled in the manner it would be handled were the defendant anyone but D____ T____—and that the rule of law has been bent at *every* turn.

The Government Strikes Back in Florida

If our depraved former president (FPOTUS) ceased to breathe, the world would be a much better place.

However, in light of the sorry fact that FPOTUS is still breathing, the government did two things today. First, they filed a motion to stay (put on hold) the recent ruling by one of FPOTUS’s “judges” in Florida that interfered with the criminal investigation of FPOTUS’s theft of government documents. But the government limited this request to the 100 or so classified documents found by the FBI when they searched FPOTUS’s lair. The government pointed out that the former president has no right to control access to classified documents under any possible interpretation of the law. They also asked that the “special master” (or outside party the “judge  wants) not be allowed to review the classified documents in order to determine if they somehow belong to FPOTUS:

Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit (i.e. the higher level in the federal judiciary responsible for Florida, Georgia and Alabama).

The other thing the government did was to file an appeal with the Eleventh Circuit regarding the order for a special master to be appointed at all. The beauty of the appeal is that it allows other judges, some of whom are more competent and less corrupt, to get involved in FPOTUS’s stupid lawsuit; and the government is in no rush to have the appeal ruled on, assuming that a special master can’t be appointed until the Eleventh Circuit rules, which could be months from now.

It helps to have a Department of Justice that is, unlike the one FPOTUS was in charge of,  competent and not corrupt. If you’d like to see some of your tax dollars at work:

The United States’ Motion for a Partial Stay Pending Appeal

Declaration of Alan E. Kohler, Jr., Assistant Director, Counterintelligence Division, Federal Bureau of Investigation