Opinion by Laurence H. Tribe, Barbara McQuade and Joyce White Vance [1] from the August 5, 2021 Washington Post:

As evidence of Donald Trump’s efforts to overturn the 2020 election mounts, the time has come for the Justice Department to begin, if it hasn’t already, a criminal investigation of the former president’s dangerous course of conduct. Attorney General Merrick Garland has worked to restore the badly frayed public trust in a nonpartisan DOJ. But failing to investigate Trump just to demonstrate objectivity would itself be a political decision — and a grave mistake. If we are to maintain our democracy and respect for the rule of law, efforts to overturn a fair election simply cannot be tolerated, and Trump’s conduct must be investigated.

The publicly known facts suffice to open an investigation, now. They include Trump’s demand that Georgia Secretary of State Brad Raffensperger “find” 11,780 votes to declare he won that state’s election; Trump’s pressure on acting attorney general Jeffrey Rosen as well as Vice President Mike Pence to advance the “big lie” that the election was stolen; the recently revealed phone call in which Trump directed Rosen to “just say the election was corrupt, [and] leave the rest to me,” and public statements by Trump and associates such as Rudolph W. Giuliani and Rep. Mo Brooks on Jan. 6 to incite the mob that stormed the Capitol.

None of these facts alone proves a crime beyond a reasonable doubt, but together they clearly merit opening a criminal investigation, which would allow prosecutors to obtain phone and text records, emails, memos and witness testimony to determine whether Trump should be charged

One possible charge is conspiracy. It is a federal crime for individuals to agree to defraud the United States by interfering with governmental functions. Special counsel Robert S. Mueller III included such a conspiracy in his indictment against the Internet Research Agency, alleging the Russian group engaged in a conspiracy aimed at “impairing, obstructing, and defeating the lawful functions” of government agencies.

An investigation could also explore whether Trump agreed with others — Giuliani, Brooks and possibly members of his inner circle — to obstruct Congress’s function of exercising its statutory duty to certify the election results on Jan. 6. By using disinformation to sow unfounded doubt, Trump and his allies may have tried to induce members of Congress to vote against certifying the election results, creating enough chaos to throw the election to the House, where Republicans controlled a majority of state delegations.

Another plausible charge is obstruction of an official proceeding. The relevant statute makes it a crime to corruptly obstruct, influence or impede any official proceeding or attempt to do so. Agreeing with others to obstruct the Jan. 6 vote certification for a wrongful purpose and the commission of any act in furtherance of that agreement would suffice to prove a violation, putting Trump at the heart of a conspiracy, with his public statements and tweets constituting overt act

A related but distinct charge is the Racketeer Influenced and Corrupt Organizations Act, “RICO,” which has often been used beyond its original intended target of organized crime. To prove RICO, the DOJ would need to establish that Trump was associated with an enterprise affecting interstate commerce, such as the office of the presidency, and committed at least two racketeering acts. One such act is extortion, which encompasses transmitting a threat to harm another’s reputation with intent to extract something of value. Trump’s conversations with Raffensperger, in which he suggested the secretary of state might have committed a crime and “that’s a big risk to you,” could fit that definition.

Equally fit charges for investigation include violating the federal voter fraud statute and coercing federal employees to violate the Hatch Act by working to advance his political candidacy. Trump’s well-documented efforts to pressure state officials not to certify Biden’s election could run afoul of the voter fraud law, which prohibits anyone from defrauding the residents of a state of a fair election by tabulating false ballots, although Trump might argue that he believed he had won in those states.

Likewise, Trump’s pressure on Rosen to “just say the election was corrupt” could run afoul of the Hatch Act’s criminal provision, which makes it “unlawful for any person to intimidate, threaten, command, or coerce” a federal employee to “engage in … any political activity.” It doesn’t get much more coercive or political than pressuring your attorney general to declare an election corrupt without proof.

Two other potential crimes that merit investigation are inciting insurrection and seditious conspiracy. Both statutes appear to fit the facts, but the DOJ might hesitate to bring charges because of possible defenses. For instance, even though language intended and likely to incite imminent violence meets the Supreme Court’s test for unprotected speech, a court might conclude that Trump’s exhortations to the crowd do not rise to that level of incitement and are protected by the First Amendment.

The bottom line is this: Now that Trump is out of office, the DOJ’s view that sitting presidents cannot be indicted no longer shields him. Attempted coups cannot be ignored. If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it. And the fear of appearing partisan cannot be allowed to supersede that fundamental precept.

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[1]

Laurence H. Tribe is Carl M. Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan. Joyce White Vance, the former U.S. attorney in Alabama, is a professor at the University of Alabama School of Law.

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After Donald Trump lost the 2020 election, by a healthy 10% margin in the popular vote (81,000,000 to 74,000,000) and the identical, “historic” Electoral College “mandate” that Trump got vanquishing Crooked Hillary in 2016, the Orange Polyp went to work. According to his playbook, announced before the election, he never committed to the peaceful transition of power, if he lost. His loss, he said, could only result from massive communist/BLM/antifa/pedophile cannibal fraud. He still claims to have won by a “landslide”, an alternative fact most Republicans apparently take as true.

The former president was often dismissed as unhinged, delusional, crazy, and a compulsive liar. Of course, the faithless said the same about Adolf Hitler. Both men had the talent and charisma to convince millions of their unhinged delusions. What is keeping America from greatness? Mexican rapists, in caravans, bringing drugs — and China, Jina! Wait, also Muslim terrorists who hate our freedom. Also, sexed up women getting abortions whenever they want. Also, black people who are angry for no fucking reason even though America kisses their asses every day out of liberal guilt for something nobody ever even did to them. Poor people and cripples, bitter about being losers, who expect the government to give them money for nothing. Etc. With Hitler, it all boiled down to the Jews – get rid of the poisonous Jews and Aryans live happily ever after. With the elites who find Trumpism useful, all of the above, but also, mostly the Jews, and those who think, for whatever crazy reason, that it’s not the fucking Jews. Or, to put it more bluntly, whoever we can pin our own crimes on.

As a Jew whose large family was almost completely exterminated in the Nazi era, I am prone to see Nazis among supremely ambitious people who are merely extremely prejudiced and unprincipled. Is Lyin’ Ted really a Nazi? Give the boy a chance, I say, and he’ll do whatever needs to be done for his party. Mitch McConnell? The impartial juror who announced he was working closely with Trump’s defense team to quickly end the farce of a trial in the Senate where no witnesses or testimony would be allowed, the guy who rammed religious extremist Coney Barrett on to the Supreme Court days before the election? Please. Jim Jordan? He speaks to the president “all the time, yes, I spoke to him on January 6, sure I did, but, you, heh… now that you ask when I talked to him on the 6th… heh… ahumenuh humena humena…”. Alabama representative Mo Brooks, in his bullet proof vest, exhorting an armed crowd to go to the Capitol and fight for America, after organizing three White House strategy meetings for his fellow Congressional presidential election challengers prior to January 6 to plan for the big day? I shouldn’t call Brooks a Nazi, he might merely be a high-spirited klansman, for all I know.

While all this seditioning was going on (and it is still going on big time as AG Merrick Garland methodically works to prove the DOJ is now non-political again) we now know, with proof from newly released DOJ memos and other documents, that Trump made a continuous effort to use the DOJ to overturn the 2020 presidential election in states Trump lost (Congressional races won by the GOP in the same elections would not be challenged, no fraud there). Bill Barr, a conservative Christian culture warrior who served as historically shameless, bellicose gunsel for Trump, announced, after blusteringly promoting massive voter fraud allegations for months, that there had been no fraud on a scale that would have changed the election results anywhere. Then, with a final wet kiss to his former master, Barr resigned to spend Christmas with his family (and presumably to avoid future prosecution for seditious conspiracy to commit the insurrection that was being planned).

The lackeys at the top of the DOJ resisted Trump when he asked them to merely announce the election had been corrupt, in spite of the fact, established by the DOJ’s own investigations, that it had not been, and let him and Brooksie, and Jordan, and a few other hearty fanatics, “take care of the rest”. Then, in his moment of need, Trump found his loyal American Eichmann, Jeffrey Clark, right there at DOJ. Like Eichmann, Clark was ready, willing and able, to promote any lie that might be useful to his Leader.

Clark drafted a letter for the acting-AG to sign, informing Georgia officials that they had a legal responsibility to obey the will of the Republican state legislature, not the courts, not the election boards, not the fatuous arguments of cynical liberal constitutional law liars who clearly were involved in the corruption that stole the election from the rightful winner. This letter is part of the public record now, and Barr’s successor, to his credit, refused to sign it (to his discredit, he kept his mouth shut about, and gutlessly tap-danced around, the whole ugly insurrectionish episode).

There was a standoff, a la Trump’s old reality TV show The Apprentice, Clark, his audition letter in hand, arguing to be made AG so he could sign it, with the rest of DOJ leadership threatening to resign. Trump decided not to risk the resignation of DOJ leadership and called Georgia instead, finally getting through, on his 18th try, on January 3, to ask the fellas there to give him a break and find the stinkin’ 11,780 votes he needed, and then proceeded with his desperate last stand, the January 6 MAGA riot to “stop the steal”.

Eichmann, the man who kept the trains rolling to the death camps, packed to capacity, was a man of modest intellectual gifts, an incomplete high school education and a talent for bureaucracy. Clark, an accomplished attorney, graduated from college and law school, had a distinguished legal career at one of the world’s top corporate law firms, fighting for ultra-conservative causes and making enough money and powerful right wing contacts that he is set for life (he’s now Chief of Litigation & Director of Strategy at New Civil Liberties Alliance, a self-described young and vibrant organization focused on restoring the historically more robust civil liberties long enjoyed by federal and state citizens—liberties that have come under fire with the rise of the modern “administrative state.”) He’s fighting for “civil liberties” like the right not to be forced to wear a fucking mask by an overreaching government. American Nazis always find well-paying jobs with like-minded, right wing billionaire-funded outfits fighting for their version of liberty and justice.

Hannah Arendt painted an unforgettable and insightful portrait of this kind of ambitious, mindless, true believing public servant in her masterpiece Eichmann in Jerusalem. He is supremely ambitious, does what he’s told, never questions his superiors, proceeds with absolute faith and unwavering belief in the rightness of his cause, knows the millions he loads on to trains are going to death camps, steels himself and does his duty no matter what.

Not to torture this comparison beyond the plain fact that both men, Eichmann and Clark, were ready, willing and able to do whatever was needed to advance their beliefs and their careers — and serve their masters. Of Eichmann, Arendt noted the lack of what we usually call “evil” in his CV and pointed out how he reflected a chillingly modern concept of evil, flowing directly and inexorably from a hateful belief system implemented on a mass level by an unblinking loyalist bureaucracy. From the intro:

As for what most of us call “conscience,” the Nazis, like the current GOP, had that shit covered. For Nazis conscience was, as Hitler himself had said, a debilitating “Jewish invention.” Conscience, they believed, made people weak and vulnerable and must be rooted out of the Nazi soul, like any vestige of human empathy that did not serve the Leader’s vision. For the current GOP? I don’t know, you tell me.

Sickening

Clark’s anti-democratic treachery was already known and reported on back in January. Insurrection moves fast, democratic adjustment to insurrection moves with deliberate, lawful slowness.

The NY Times (January 24, 2021):

Justice Department colleagues said they were shocked by Mr. Clark’s embrace of the president’s falsehoods and plan to oust the acting attorney general in an effort to overturn Georgia’s election results.

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Jeff Clark is the newly established Chief of Litigation and Director of Strategy for the nonpartisan New Civil Liberties Alliance. NCLA is a young and vibrant organization focused on restoring the historically more robust civil liberties long enjoyed by federal and state citizens—liberties that have come under fire with the rise of the modern “administrative state.”

Before joining NCLA, Mr. Clark was dual-hatted as the Acting Assistant Attorney General of the Civil Division at the U.S. Justice Department from 2020-2021, as well as the Senate-confirmed 35th Assistant Attorney General of the Environment and Natural Resources Division (ENRD) from 2018-2021. ENRD is a component of the Justice Department with an illustrious, more-than-a-century’s worth of history. He has personally appeared in every federal Court of Appeals. . .

. . . During his two periods of service inside the federal government, Mr. Clark focused on how to implement Federalist 51’s vision of “oblig[ing the government] to control itself.” Now at NCLA, he will focus on enforcing, from the outside, the constraints of the Constitution and the laws on the government.

Interspersed with his government service, Mr. Clark was a partner at the international law firm of Kirkland and Ellis LLP, where he practiced general appellate litigation, environmental law, and administrative law. Moreover, Mr. Clark has also worked in numerous substantive areas of law, ranging from labor law, to class actions, to intellectual property, to bankruptcy, and to products liability.

(from his Linked in profile)