But Could He Be Elected from a Jail Cell?

On a very hot summer afternoon, what better to consider than what to do about “a pathetic, degenerate huckster capable of great violence and evil” who is going to run for president again? Followed by some encouraging words from Merrick Garland. First, from Charles Blow of The New York Times:

His entire foray into politics has been one of testing the fences for weaknesses. Every time a fence has failed, he has been encouraged. He has become a better political predator.

With the conclusion of this series of hearings about the Jan. 6 insurrection, it has become ever clearer to me that T____ should be charged with multiple crimes. But I’m not a prosecutor. I’m not part of the Department of Justice. That agency will make the final decision on federal charges.

The questions before the Justice Department are not only whether there is convincing evidence that T____ committed the crimes he is accused of but also whether the country could sustain the stain of a criminal prosecution of a former president.

I would turn the latter question around completely: Can the country afford not to prosecute Trump? I believe the answer is no.

He has learned from his failures and is now more dangerous than ever.

He has learned that the political system is incapable of holding him accountable. He can try to extort a foreign nation for political gain and not be removed from office. He can attempt a coup and not be removed from office.

He has learned that many of his supporters have almost complete contempt for women. It doesn’t matter how many women accuse you of sexual misconduct; your base, including some of your female supporters, will brush it away. You can even be caught on tape boasting about sexually assaulting women, and your followers will discount it.

He has learned that the presidency is the greatest grift of his life. For decades, he has sold gilded glamour to suckers — hawking hotels and golf courses, steaks and vodka — but with the presidency, he needed to sell them only lies that affirmed their white nationalism and justified their white fragility, and they would happily give him millions of dollars. Why erect a building when you could simply erect a myth? T____ will never willingly walk away from this.

Now with the investigation into his involvement in the insurrection and his attempts to steal the election, he is learning once again from his failures. He is learning that his loyalty tests have to be even more severe. He is learning that his attempts to grab power must come at the beginning of his presidency, not the end. He is learning that it is possible to break the political system.

Not only does T____ apparently want to run again for president; The New York Times reported that he might announce as soon as this month, partly to shield himself “from a stream of damaging revelations emerging from investigations into his attempts to cling to power after losing the 2020 election.”

T____ isn’t articulating any fully fleshed-out policy objectives he hopes to accomplish for the country, but that should come as no surprise. His desire to regain power has nothing to do with the well-being of the country. His quest is brazenly self-interested. He wants to retake the presidency because its power is a shield against accountability and a mechanism through which to funnel money.

Should his re-election bid prove successful, T____’s second term will likely be far worse than the first.

He would tighten his grip on all those near him. Mike Pence was a loyalist but in the end wouldn’t fully kowtow to him. The same can be said of Bill Barr. T____ will not again make the mistake of surrounding himself with people who would question his authority.

Some of the people who demonstrated more loyalty to the country than they did to T____ during these investigations were lower-level staff members. For the former president, they, too, present an obstacle. But he might have a fix for that as well.

Axios reported on Friday that “T____’s top allies are preparing to radically reshape the federal government if he is re-elected, purging potentially thousands of civil servants and filling career posts with loyalists to him and his ‘America First’ ideology”.

According to Axios, this strategy appears to revolve around his reimposing an executive order that would reassign tens of thousands of federal employees with “some influence over policy” to Schedule F, which would strip them of their employee protections so that T____ could fire them without recourse to appeal. [Note: T____ created Schedule F by executive order a few weeks before the 2020 election. It gave him unprecedented power to ignore civil service rules. President Biden repealed the executive order on his second day in office.]

Perhaps most dangerous, though, is that T____ will have learned that while presidents aren’t too big to fail, they are too big to jail. If a president can operate with impunity, the presidency invites corruption, and it defies the ideals of this democracy.

A T____ free of prosecution is a T____ free to rampage.

Some could argue that prosecuting a former president would forever alter presidential politics. But I would counter that not prosecuting him threatens the collapse of the entire political ecosystem and therefore the country.

Unquote.

We don’t know what it will mean, but Attorney General Merrick Garland repeated his intention to hold everybody responsible for January 6th (and possibly the entire attempted coup):

They Wanted To Assassinate a Troublesome Reporter

President Richard Nixon avoided impeachment or a jail cell by resigning. This strange story from 50 years ago made me wonder what plots were discussed in the White House more recently and whether that president will ever be punished. From The Washington Post:

Nixon’s hatred for the news media long predated his election as president. Where other politicians shrugged off public criticism, Nixon believed he was uniquely the target of journalistic vilification. When he entered the White House in 1969, he vowed revenge.

As president, Nixon ordered illegal wiretaps on newsmen who criticized his administration and instructed FBI director J. Edgar Hoover to compile a dossier on “homosexuals known and suspected in the Washington press corps.” Nixon’s Justice Department filed antitrust charges against television networks that criticized him and went to court in an unprecedented attempt to legalize government censorship. Nixon’s aides even put together a list of “enemies,” including journalists, to be secretly targeted for government retaliation.

The journalist Nixon despised most was crusading columnist Jack Anderson, then the most famous and feared investigative reporter in the country. Anderson had a hand in exposing virtually every Nixon scandal since he first entered politics, and he escalated his attacks once Nixon was president, uncovering Nixon’s deceit in foreign policy, and his political and personal corruption.

Nixon railed that “we’ve got to do something with this son of a bitch,” but nothing seemed to stop Anderson. The president’s reelection campaign planted a mole in the newsman’s office, but Anderson’s secretary discovered the snooping and ejected the infiltrator. A top White House adviser tried to discredit Anderson by leaking him forged documents, but he figured out they were bogus and didn’t fall for the ruse. The CIA illegally wiretapped and surveilled Anderson, but his nine children chased the spies away and Anderson mocked their incompetence in his column. The president even ordered his staff to smear Anderson as gay, but the allegation was as false as it was ridiculous and went nowhere.

Finally, in March 1972, the Nixon White House turned to the one method guaranteed to silence Anderson permanently: assassination. After meeting with the president in his hideaway office in the Old Executive Office Building, White House special counsel Charles Colson contacted his top White House operative, E. Howard Hunt. The “son of a bitch” Anderson “had become a great thorn in the side of the president,” Colson told Hunt, according to Hunt’s later Senate testimony, and the White House had to “stop Anderson at all costs.” (Hunt also corroborated this story in a 2003 interview.)

According to Hunt, Colson proposed assassinating Anderson by using an untraceable poison, perhaps a high dose of a hallucinogen like LSD. Colson instructed Hunt to “explore the matter with the CIA,” where Hunt had previously worked as a spy. Although he never explicitly stated that Nixon gave the order, Colson told Hunt that he was “authorized to do whatever was necessary” to eliminate the reporter.

Hunt brought in his White House sidekick, G. Gordon Liddy, who was “forever volunteering to rub people out,” as Hunt put it. Liddy was enthusiastic: It would be a “justifiable homicide,” he later said in media interviews, because Anderson was a “mutant” journalist who had “gone too far” and “had to be stopped.”

On March 24, 1972, Hunt and Liddy met with a veteran CIA poison expert, Edward T. Gunn, in the basement of the Hay-Adams Hotel, a block from the White House. Gunn and Liddy, who didn’t know each other, used aliases.

Gunn later told Watergate prosecutors that Hunt said someone “was giving them trouble” and wanted an untraceable poison “that would get him out of the way.” Gunn replied that no poison was completely undetectable. But he said the CIA had success painting LSD on a car’s steering wheel; the drug was then absorbed while driving and could cause a fatal car crash. However, there was also the risk that others — such as Anderson’s wife or children — would be poisoned if they drove the car instead.

Of course, there’s always the old simple method of simply dropping a pill in a guy’s cocktail,” Gunn suggested. But Hunt pointed out that as a Mormon, Anderson was a teetotaler.

Aspirin roulette” was another option, Liddy said: slipping a “poisoned replica” of his headache tablet into his medicine bottle. Liddy and Hunt had already cased Anderson’s house for a possible break-in. But it would be “highly impractical,” Hunt argued, to “go clandestinely into a medicine cabinet with a household full of people and pore over all of the drugs … until you found the one that Jack Anderson normally administered to himself.”

Besides, Liddy realized, it would take too long: “Months could go by before [Anderson] swallowed it.” Not to mention the “danger than an innocent member of his family might take the pill” instead.

It might be simpler, Gunn suggested, to make Anderson’s car crash by ramming into it. Hunt and Liddy had already tailed Anderson as he drove between his home and office, and Gunn suggested a specific location along the route that was “ideal” because it was already “notorious as the scene of fatal auto accidents” in Washington.

But Liddy thought this method was “too chancy” and argued for simplicity: Anderson “should just become a fatal victim of the notorious Washington street-crime rate.” Liddy offered to stab Anderson to death and make it look like a routine robbery by stealing Anderson’s watch and wallet. “I know it violates the sensibilities of the innocent and tender-minded,” Liddy later told Playboy, “but in the real world, you sometimes have to employ extreme and extralegal methods to preserve the very system whose laws you’re violating.”

Hunt briefed Colson about these various assassination options. But a few days later, the hit was canceled. The White House had a more urgent assignment: bugging the Democratic Party’s headquarters in the Watergate office building.

A few weeks later, Hunt and Liddy were arrested for their role in the Watergate burglary. The scandal that toppled Nixon’s presidency began unraveling.

In the aftermath, a Senate committee investigated and confirmed the plot to poison Anderson. Liddy and Hunt eventually acknowledged their participation in the conspiracyColson never did. All three went to prison for Watergate-related crimes.

But not Nixon, whose role in the Anderson plot has never been definitively established. Hunt believed that Colson didn’t have the “balls” to order the assassination on his own and had acted at Nixon’s behest. Colson denied that. But it is hard to imagine Nixon’s closest advisers plotting to execute America’s leading investigative reporter without the tacit — if not explicit — authorization of the president.

PS: The Rittenhouse Case

Another observer, Kurt Eichenwald, makes a good point:

. . . the biggest villains here are the Kenosha police, who refused to protect protesters by treating right-wing, gun-toting civilians as adjuncts to law enforcement. THAT is where politics & white supremacy should be most condemned – it’s institutional and allowed the streets to be filled with thugs like Rittenhouse, whose mere presence created the potential for this. But the presence of these dangerous people was not a crime.

These Brief Words About the Rittenhouse Case Sound Right to Me

Seventeen-year-old Kyle Rittenhouse traveled to Kenosha, Wisconsin, last year with an AR-15 semi-automatic rifle, saying he wanted to protect private property. This was during unrest following an earlier incident in which a policeman repeatedly shot an unarmed black man. Confronted and pursued by demonstrators, Rittenhouse killed two and wounded another. He claimed his actions were self-defense.

Josh Marshall of Talking Points Memo responded to Rittenhouse being found not guilty:

A few thoughts on this verdict. It’s probably obvious I think it was a bad verdict. But I think we have to look more broadly at the result. People disagree. Juries make bad decisions. There’s nothing new about that. But what we have in the country right now are three factors.

One is highly permissive self-defense laws. In some cases, the statutes are okay but they’re interpreted too heavily or entirely in the defendant’s subjective perception of danger. In other “stand your ground”-type cases, they’re just bad laws. But the upshot is similar.

You also have a situation where any yahoo is now allowed to bring a high capacity firearm into an already tense or potentially violent situation. Usually they come with a chip on their shoulder or a political agenda. Then if they get scared they can start shooting.

It didn’t get a lot of attention but the judge essentially threw out the law that bars minors from open carrying in Wisconsin. So literally a kid can now show up with an AR to “help” and that’s okay.

Finally we live today in a very polarized, very divided society in which some people’s lives and inner experiences count a lot more than other people’s. You can say that that really means white people’s count more. And that’s generally right. But it’s not only that.

As long as murder is okay as long as you were feeling the right thing at the moment you killed the other person, that makes something as foundational as killing wildly subjective and makes the decisions jurors make too dependent on their own private definitions of good guys and bad guys.

None of these factors are new exactly. But together they create something genuinely new in this political moment. Add in the increasingly public acceptability of political violence on the American Right and you’ve got a powder keg confluence of factors that will make resorts to violence and general murder safaris not only more common, but also acceptable under the law.

Unquote.

I’ll add two things. The first is that the extreme polarization in our society is the result of the right-wing’s descent into fantasy and authoritarianism. Countries with conservative political parties that are actually conservative, not insanely radical and not gun-crazy like the Republican Party, aren’t as polarized.

The second is that the judge dismissed the gun charge because the weapon Rittenhouse had wasn’t illegal, according to Wisconsin’s law. For whatever reason, “the law allows minors to possess shotguns and rifles as long as they’re not short-barreled. . . When [the prosecutor] acknowledged that Rittenhouse’s rifle’s barrel was longer than 16 inches, the minimum barrel length allowed under state law, [the judge] dismissed the charge (Associated Press). In other words, according to the letter of the law, it’s fine in Wisconsin for a minor to parade around with a dangerous weapon if its barrel is longer than 16 inches. The prosecutor could have appealed the judge’s decision, since it contradicted the spirit of the law, but didn’t bother. It wasn’t the prosecutor’s only mistake.

It’s Not a Fringe Benefits Case

It’s blatant fraud and tax evasion. Daniel Shaviro, a professor of taxation at New York University’s School of Law, explains why the case against the former president’s company and its Chief Financial Officer is extremely serious: 

In the days before the July 1, 2021 issuance of the Manhattan District Attorney’s Weisselberg-X Organization indictment, public anticipation was positively underwhelming. It would just be a fringe benefits case, we were told – meaning, a dispute, of a picayune sort that almost never yields criminal charges, regarding whether or not an employee’s use of, say, a company car or apartment yielded taxable income . . . . Everyone does it, we heard, and it shouldn’t be the basis for a criminal fraud charge. What’s more, this ostensibly would just be a New York State or City income tax issue, not federal, thus limiting the scale and monetary significance of the claimed wrongdoing.

Then the indictment dropped, and it turns out that public expectations could scarcely have fallen further short than they were of the magnitude of what was actually being charged. Let me spell out the particulars under several headings:

1. This is no mere fringe benefits case. It is a straight-out fraud case, claiming that the defendants kept double books: phony ones to show the tax authorities, and accurate ones to be hidden from view. The question of whether a given company apartment or car might in theory (with appropriate supporting facts) have been an excludable fringe benefit turns out to be almost completely irrelevant. A better analogy to what is being charged here is the following:

Suppose that your employer pays you monthly, through automatically deposited paychecks that end up being included on your annual W-2. But suppose that each month you could stop by the front office, request an envelope full of cash in unmarked bills, and have your W-2 reduced accordingly. So your true income would be the same as if you hadn’t stopped by, but you’d be reporting less salary. If your employer kept careful records of all the cash it gave you, and also still deducted it all, we would basically have this case. That is far different from simple failure to pay taxes on fringe benefits, which is how the indictment has been widely misunderstood, thanks in part to X’s defense lawyers’ laying the groundwork before the charges were made public on Thursday.

2. It is not just a state and local income tax fraud case. It is also – via New York State fraud, conspiracy, and grand larceny statutes – a federal income tax fraud case. The indictment’s first three and longest counts detail a “scheme to defraud” the federal Internal Revenue Service, including through a “conspiracy” with multiple “overt acts,” and the commission of “grand larceny.” In other words, just as the Manhattan DA could indict someone for committing such crimes (within its jurisdiction) against the likes of you or me, so here it has identified the IRS as the main victim of the defendants’ actions. Indeed, the word “federal” appears thirty times in the Manhattan DA’s 24-page charging document.

Given the facts alleged, it is hard to fathom that the IRS – if it agrees that those facts are true – would not promptly indict the defendants for federal income tax fraud. Failing to bring charges would amount to saying that overt and deliberate tax cheating of the most brazen kind need not be addressed criminally. If a private individual, rather than the Manhattan DA had somehow gathered all of this information and reported it to the IRS, he or she would be in a great position to claim a whistleblower award. And while federal authorities often refrain from piling on, by bringing their own charges when state authorities are already prosecuting a case; the indictment here makes explicit that the fraud was, in the main, directed against the federal government itself.

3. If the Manhattan DA can prove the facts asserted, this is not a trivial case, or one that ordinarily would not be brought, or one that bespeaks political bias, or is just about pressuring a witness whom the DA wants to “turn.” It is unimaginable to me that any prosecutor would not bring these or similar charges under the asserted facts. If the case is proven, the DA will not have been criminalizing political disagreement, as critics complain. Rather, it will have been criminalizing crime – and not a moment too soon from a broader enforcement standpoint, given widespread concerns about plunging enforcement, not just against income tax fraud, but against white-collar crime more generally.

That’s the general overview. However, delving into the details can help to show why all this is so. A clear understanding is best conveyed by turning the indictment’s formal presentation of the charges into more of a straightforward narrative. The rest of this commentary presents the main elements of the story that the indictment tells.

One should keep in mind, of course, that all this is just the Manhattan DA’s case. . . . For convenience, I will set forth the prosecutorial version of what happened without repeating (more than sporadically) that it all still needs to be proven.

4. The true economic deal alleged by the indictment – Weisselberg had a fixed economic deal with the X Corporation. He was to be paid a fixed amount – which, for the years 2011 through 2018, equaled $940,000 annually, comprised of $540,000 denominated as base salary and $400,000 denominated as an end-of-year bonus. Nothing else in the employment agreement and arrangements between the parties that the indictment discusses would change this fixed bottom line. Any supposed “fringe benefit” – and, as we will see, the term really does not fit well here – that the X Organization (through any of its entities) furnished to Weisselberg would be treated as compensation in the company’s internal records, and charged against his $940,000 receipt. Thus, for example, suppose the Organization paid him $50,000 in cash, either directly or through a payment to a third party supplier (including other X entities) of consumer benefits to him. In that case, all else equal, Weisselberg would get $890,000, rather than $940,000, with that lower amount being treated as compensation in issued W-2s and1099s, and by him on his own tax returns. But the Organization’s internal records would still show that he had received $940,000 of compensation, including this $50,000.

5. Fraudulent double bookkeeping – Implementing this scheme required having two inconsistent sets of records: (a) the fake ones for tax reporting that excluded a part of his compensation (under the parties’ financial deal and the company’s secret bookkeeping), and (b) the true accounting records that the company maintained privately. Experts on tax enforcement agree that keeping two sets of books, in this fashion, is “a red flag” and “a classic indication of an overt act of evasion,” often causing the government to have a “slam-dunk case.”

6. Additional overt acts to conceal the fraud – Even in the company’s own ledgers, as distinct from those that were disclosed to relevant tax authorities, Weisselberg took steps to conceal his receipt of benefits. . . . 

7. A large number of the items that the company funded (and then subtracted from Weisselberg’s reported compensation) had no relationship whatsoever to the sort of items that, under appropriate circumstances, might potentially constitute tax-free employee fringe benefits. . . . The following items that the company paid for, on Weisselberg’s behalf, most emphatically do not fit the profile of potentially excludable fringe benefits:

• private school tuition expenses for Weisselberg’s family members
• a Mercedes Benz automobile that was the personal car of Weisselberg’s wife
• unreported cash that Weisselberg could use to pay personal holiday gratuities

(To treat cash as a “fringe benefit” would imply that the term covers all employee compensation. Does this mean that, whenever one is paid with cash off the books and does not report it, the IRS is merely quibbling over fringe benefits? Of course not.)

• personal expenses for Weisselberg’s other homes and an apartment maintained by one of his children; these included such items as new beds, flat-screen televisions, the installation of carpeting, and furniture for his home in Florida
• rent-free lodging and other benefits to a family member of Weisselberg .

In the light of such items, along with the secret double bookkeeping and internal company treatment of all these items as compensation, there are only three possible explanations for calling this a “fringe benefits” case. The first is that one has not read the indictment or otherwise acquainted oneself with the pertinent facts. The second is one that is ignorant, not just of extremely basic aspects of federal and state income tax law, but also of common English language usage. Calling bundles of cash and the provision of flat screen televisions in employees’ vacation homes “fringe benefits” – especially when they are not extra pay, but replace ordinary paycheck salary, dollar for dollar – would appear to leave no employee compensation outside the term’s potential scope. The third is that one has decided to misinform one’s audience.

8. Fraudulent mischaracterization of employee compensation, supported by deceptive bookkeeping – The company also reported Weisselberg’s annual end-year payments ($400,000 for the years 2011-2018) as non-employee compensation, using Form 1099 rather than the W-2 that is used for salary. He relied on this mischaracterization to make deductible annual contributions out of these amounts to a Keogh plan, which is a tax-deferred pension plan that one can deductibly fund by using self-employment income, but not employee wages. To help support this characterization (which the indictment asserts Weisselberg knew was false), end-year payments would be made by X Organization entities of which he was not an employee, such as the Mar-a-Lago Club and Wollman  Rink Operations LLC. This creation of a false paper trail – since he had not directly performed services for these entities supporting the receipt of such payments from them, even as an independent contractor – fits the alleged pattern of not merely taking incorrect tax positions, but engaging in intentionally misleading overt acts in support of a conspiracy to defraud. It also arguably shows consciousness of guilt.

9. Evasion of New York City income tax by falsely denying local residence status – The indictment states that, from 2005 through 2013, Weisselberg and the other corporate defendants acted to “conceal his status as a New York City resident” and thus “enable[d him] to avoid the payment of New York City income taxes”. It further adds that he “spent most of his days each year in New York City, working in the X Organization offices at X Tower. He was a New York City resident, and knew that he was a New York City resident, but falsely claimed to his tax preparer and to the tax authorities that he was not a New York City resident” . . . 

It is a widely-known fact among New York-area taxpayers – and not just those with specific tax and accounting knowledge, like Weisselberg himself – that, if one has an apartment in New York City (as he did) and is in the City for at least a part of more than 183 days in a given year, then one counts for that year as a City resident. This is not an issue that turns on any broader (or other) facts and circumstances. Under the indictment’s stated facts, therefore, Weisselberg unambiguously was a New York City resident for all of the years from 2005 through 2013, based on an objective black-letter rule that is hardly arcane or obscure.

10. What was X’s role in all this? . . . There is little direct discussion of what X himself did or knew personally in relation to the facts asserted in the indictment. If X is subsequently indicted by the DA in connection with the crimes alleged here or anything else, his conviction would require proof in court, beyond a reasonable doubt, of his requisite criminal actions and intent. In the courtroom of public discussion and debate, however, any claim that the crimes asserted in the indictment could have occurred without his participation and knowledge may be viewed by many as begging credulity [i.e. he’s as guilty as hell].