In a six part series, which any American (or anyone else) can read without encountering a pay wall (Mexicans will pay for the paywall…) the Boston Globe editorial board makes a clear, overwhelmingly strong case for the need to prosecute the former president if we are to save American democracy.
As simpering Trump toady Lindsey Graham put it, after voting to acquit the commander-in-chief who’d incited a violent attack on the Capitol, doubling down on his desperate efforts to prevent the peaceful transition of power (one of his last big crimes in office) “if you believe he committed a crime, he can be prosecuted like any other citizen.” Indeed.
Don McGahn, Trump’s first White House lawyer, is a dedicated conservative who was largely responsible for the selection and lifetime appointments of Messrs Gorsuch and Kavanaugh. After Trump fired FBI director Comey, for refusing to commit to personal loyalty to the president and for not dropping the “Flynn Thing” (Mike Flynn’s illegal contacts with Russia that he lied about), the DOJ appointed a Special Counsel to investigate numerous connections between the Trump campaign and Russia and Trump’s suspicious loyalty to Vladimir Putin, a foreign leader who had openly (and secretly) helped Trump win the “close” election of 2016.
During his famous Oval Office reaction to the news of Robert Mueller’s appointment as Special Counsel, Trump said “this is the end of my presidency, I’m fucked!” according to sworn witnesses. You can look it up.Trump was outraged at this intrusion on to his unlimited executive powers. Partisan witch hunt was a common cry, conducted by “sick and dangerous individuals” who he would punish when the time was right. After a moment of self-pity Trump exploded at his team for letting this witch hunt start in the first place, and his vendetta against the loyal, but not loyal enough, Jeff Sessions began in earnest.
Members of Trump’s inner circle lied to Mueller’s investigators, in exchange for the promise of a pardon from the big guy, which they got. Mueller found 140 instances of coordination, working together, direct communication, collusion, between members of Trump’s campaign and the Russian government, a foreign actor who worked tirelessly to swing the election to Trump. Mueller found there was no doubt of the ongoing collusion, which is not a legal term, but that there was “insufficient evidence” of a criminal conspiracy. Mueller also noted evidence had been withheld and numerous witnesses had lied to him. Hence Barr’s finding of “no collusion” and the announcement that Mueller had “exonerated” Trump of all wrong-doing.
When Mueller started digging he encountered so much lying from Trump’s people, the president’s refusal to answer even written questions his lawyers had agreed to have him answer, defiance of every subpoena and numerous other maneuvers to avoid production of evidence that he began to investigate Trump’s apparent obstruction of justice. One of the ten instances Mueller gave to illustrate what appeared to have been a consistent pattern of obstruction (a substantial pattern that did not allow Mueller to exonerate Trump, even if he also couldn’t directly accuse him of — per DOJ memo about accusing a sitting president of a crime — Mueller took that extra step– if he can’t be prosecuted, it’s unfair to accuse him) involved White House counsel Don McGahn.
At one point Trump asked McGahn to fire Mueller. McGahn advised the president that firing the Special Counsel investigating obstruction of justice would look bad, could bite him hard. As McGahn told Mueller’s investigators, he’d refused to fire Mueller, consulted his own lawyer, packed up his office and wrote a letter of resignation to Trump. Trump didn’t accept McGahn’s resignation, instead asking him to write a memo stating that they had never discussed firing Mueller. McGahn revealed all this, under oath, to Mueller’s investigators.
When Congress sent McGahn a subpoena to appear before a committee looking into impeaching Trump, McGahn filed a federal suit seeking a ruling on whether Congress had the right to subpoena him, whether such a subpoena would violate attorney-client privilege and any other defense to giving testimony that he could think of. The suit dragged on for a couple of years, long past both Trump impeachments. The predictable delay prevented McGahn from giving public testimony that could have seriously hurt his demanding, sometimes lawless, former client. While nothing McGahn did was illegal, it certainly fits into Trump’s pattern of doing everything possible to obstruct any investigation into anything he has ever done.
Recently McGahn agreed to testify in Congress, behind closed doors, with his own lawyer, and Trump’s lawyer, in the room. According to the deal he struck with those who had subpoenaed him years earlier he would not answer anything outside of the scope of what he had revealed to Mueller under oath. I started reading the transcript of his testimony, which was released in its 240 page entirety the other day. I made it to page 8 where I read:
In a nation of angry, divided, freaked out citizens, this McGahn shit is a dead letter, ancient history, irrelevant, Trump already got away with obstruction of justice, and nobody is going to do anything about his incitement to riot, we’ve seen it a hundred times over now — he publicly did many things far worse than asking his lawyer to lie for him and make a written record of the lie.
Moderate Merrick Garland’s DOJ is so far following up on all of Barr’s objections to investigations into Trump’s monkeyshines. No public disclosure of Barr’s lying, falsely classified memo, we appeal the judge’s ruling, no prosecution of Trump and Barr for using teargas, horses and batons against a peaceful protest for Trump’s photo op, we move to dismiss the lawsuit, no penalty for a president defaming a private citizen “during the scope of his duties,” we appeal the denial of our right to substitute ourselves for the former president in this lawsuit according to federal law.
I may be the only person, certain the only poor bastard I know, who is wondering “what the fuck?!” as I read the words from the McGahn transcript “although this interview is not under oath” you’re still not allowed to lie, you know.
My only hope, I think, is that my head will explode before too much longer. We live in Berlin 1932 and we are watching the principled, decent, reasonable, elected Weimar government let the angry right call all the shots, many of them based on outright, easily demonstrable lies. Alternative facts, driving new laws that could help Trump loyalists overturn the next election, if Americans turn out in large numbers to vote the wrong way again, next time. What could fucking go wrong?
You can say “seig heil!” can’t you you? I know you can.
If there is a chokepoint in democracy, a vulnerability in the experiment in majority rule, count on the clever engineers of the Koch network to find and exploit it. In this case, it is the two “centrist” Democratic “mavericks” who espouse fundamental change to the current partisan acrimony over a sensible, necessary, straightforward rules change that will allow their 51 votes to rule on policy. The party they advocate cooperating with is the one that has been forcing 51-49 outcomes on their opponents as often as humanly possible when they had control of the Senate.
So the conservative U.S. Chamber of Commerce may have given Manchin and Synema a lot of money. Whose business is that? The Supreme Court said wealthy donors that make political contributions in a certain way are engaged in protected First Amendment speech, not campaign “speech”, which would, theoretically be subject to regulation, so it is fine that the wealthy donors keep their names out of it. Dark money, Mitch McConnell’s fondest wet dream. Three Supreme Court cases make the irrefutable case that this is the case, that the status quo Manchin and Synema refuse to challenge is the law of the land. Unless, by some chance, the law of the land gets changed by something like the John Lewis Voting Rights Act or the For the People Act.
The 1965 Voting Rights Act, been there, done that. It solved the problem, now it is time to move on from enforcing it, said John Roberts in 2013. When John Roberts ruled that because the US now had a mulatto president it proved that racism was no longer a factor in American politics, and, he claimed, the data Congress relied on in almost unanimously reauthorizing the landmark 1965 Voting Rights Act was old, from 1965, a time when there was racism in the USA, it was no longer necessary to strictly enforce the Voting Rights Act.
Under this wrongly decided, unappealable ruling formerly racist states no longer had to clear new voting laws before they could be put into effect, as formerly required under the Voting Rights Act, as the 98-0 Senate voted to continue requiring. His 5-4 majority overturned the two lower court cases where Shelby County, Alabama, a carefully chosen plaintiff, had lost in federal court.
Immediately after this decision came down, literally days after Roberts used his cockeyed rationale (the dissent pointed out the hundreds of hours of debate in both houses, and the thousands of pages of pertinent contemporary voting data produced before the Senate voted 98-0 to extend the law) to craft the cynical 5-4 Shelby County v. Holder ruling (and Shelby County itself had recently been found guilty of some race-based voting shenanigans) cutting enforcement out of the Voting Rights Act, the first few of almost two hundred new state voter suppression laws were enacted by a number of states, led by the great state of Texas.
This desired result was but one success of the anti-majoritarian project of the forces that founded the John Birch Society and then efficiently engineered their advocacy into a more and more effective political action network. Appoint federal judges from partisan lists maintained by the Federalist Society (a business networking fraternity for committed right-wing law students, lawyers and judges) and then have other members of this society bring cases designed to be upheld by a now 6-3 Federalist Society Supreme Court. They’ve done this very well over the years, to sometimes horrific effect, and the plan is to soon end a working class woman’s ability to make the painful decision to end an unwanted pregnancy.
To be sure, Charles Koch and his buddies don’t care about the lives of the unborn, fetuses, whatever you want to call them. They simply recognize a great opportunity to galvanize the support of millions of fervent GOP voting Christians who want this done. This large block of conservative Christians will vote for virtually anyone who announces a firm commitment to end the state sanctioned mass murder of the unborn.
A case to end partisan gerrymandering, Rucho v Common Cause (2019)wound up upholding the right of the right-wing network to continue conducting its successful Operation Red Map (the plan to take over the majority of the state governments) by drawing districts however they please to maximize their power in the state house and the House of Representatives. The Roberts court declared that partisan gerrymandering, because it is a partisan political issue, was something the Supreme Court was forbidden to rule on, due to the famous Political Question Doctrine [1]. The ruling meant partisan gerrymandering, the process that brought us Marjorie Taylor Jew-Anon, Matt Gaetz, Louie Gohmert and a host of firebrand GOP luminaries (they run in crazily convoluted districts drawn to be 70% Republican), cannot be challenged in federal court. Done and done.
Then there is arguably the most important and destructive Supreme Court case in recent history, the 2010 5-4 Citizens United ruling that removed limits on campaign spending by certain legally created non-profit entities and corporate persons. The questions teed up for Scalia, Thomas, Roberts, Alito and Kennedy (who wrote for the 5-4 majority, and for whom Boof Kavanaugh once clerked) were four:
Question
1) Did the Supreme Court’s decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional?
2) Do the BCRA’s disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected “political speech” and not subject to regulation as “campaign speech”?
3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA?
4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?
If this sounds like “how many angels can dance on the head of a pin?” you are not wrong. Can we distinguish between protected “political speech” and that regulated as “campaign speech”? Does it not rest largely on where we put the “quotation” marks?
So, in the meantime, and without new laws to prevent it (such as the For the People Act, HR1, the bill Manchin has already committed to voting against) the law of the land is that
1) all state laws to restrict voting, no matter how discriminatory they may smell, are presumed not to be discriminatory unless successfully challenged in court, surviving all appeals;
2) the political party that controls the state legislature (see Operation Red Map, they have 30 of 50 states now) draws the gerrymandered districts most advantageous to increasing their power and those gerrymanders cannot be challenged in court, and;
3) the flow of dark money allowed by Citizens United (with the Court’s assurance that democracy would be protected because all these dark money sources would be disclosed to the public) may not be challenged, as it is obviously protected “political speech” and clearly not “campaign speech”.
Manchin refused to say which parts of the For the People Act are repugnant to his sensibilities. Given the similarities between his recent incoherent op-ed and the equally sophisticated position of Americans for Prosperity, a Koch operation, one suspects there may be financial and career incentives involved for Joe Fucking Manchin.
How much dark money does the conservative, indispensable Manchin get from the secret liberty caucus? Synema? It’s nobody’s right to know that, ask John Roberts.
For now, it is enough to know this, Manchin will not vote with the rest of the Democrats to change the law to protect voting rights from the fraudulent fraud-based voter suppression laws popping up in more and more heavily gerrymandered, dark-money funded state legislatures. Synema is now free to vote however she likes, though she’s a rock on the sanctity of the filibuster rule, preferring the more reasonable “change in behavior” that would make the Senate as collegial as it was when Charles Sumner was almost caned to death on the floor of the Senate in those bipartisan days leading up to the glorious Civil War the brave, outnumbered insurrectionists never lost.
History, yawn.
[1] You can read about it here, the recent history of the Political Question Doctrine.
A condensed explanation, from the link above:
Writing for the Court, Chief Justice Roberts, while deploring the practice of partisan gerrymandering, concluded that no judicially manageable standards existed that could be applied by the federal courts. Justice Kagan, writing for four dissenters argued that the lower courts (two district courts, one in North Carolina considered a Republican gerrymander and one in Maryland considering a Democratic gerrymander) have done an admirable job separating the typical run-of-the-mill partisan gerrymander (which Kagan and the dissenters suggest would be constitutional) from the extreme gerrymanders (using new technological tools that allow parties to maximize their political advantage) that the dissenters contend violate both the Equal Protection Clause and the First Amendment. Rucho leaves modern politics in a mess. The beneficiaries of gerrymandering have zero incentive to adopt more neutral redistricting approaches and Congress is too polarized to act.
The following is from an early morning January 6, 2021 article from Bloomberg, published in the Washington Post, describing the legal backdrop for, and the history of, the parliamentary machinations planned by Trump supporters in Congress:
3. What happens then?
If at least one representative and one senator object to a state’s result, the joint session immediately recesses before the next state is called. The House and Senate meet separately to debate the objection for up to two hours before voting on whether to count or discard the electoral votes in question. Only if the objection is approved by both houses would votes be excluded. With a Democratic majority in the House, and several Republican senators on record opposing Trump’s attempts to overturn Biden’s win, any objection would be highly unlikely to succeed in getting electoral votes thrown out. But if separate two-hour debates are required for multiple states, the process could become a drawn-out, acrimonious affair.
5. Have objections been raised before?
Actually, objections aren’t rare during this process, but usually they are disposed of quickly and easily. After the 2016 election won by Trump, for instance, several Democratic representatives attempted to challenge electoral votes, but no senator joined them. In 2005, following the contest between George W. Bush and John Kerry, some Democrats were unhappy about voting issues that had come up in Ohio. In that instance, both Ohio Representative Stephanie Tubbs Jones and California Senator Barbara Boxer objected to Ohio’s results, triggering consideration by both chambers. After about an hour of debate among senators — and lengthier debate among representatives — the challenge was rejected by votes of 267-31 by the House and 74-1 by the Senate.
6. Has Congress ever rejected votes?
In 1873, Congress decided not to count votes from Arkansas and Louisiana in the re-election of President Ulysses S. Grant, though Grant would have been the victor either way, according to the Congressional Research Service. Four years later, in 1877, a joint session of Congress confronting competing slates of electors opted to create a bipartisan electoral commission to resolve the highly disputed election between Democrat Samuel Tilden and Republican Rutherford B. Hayes, who ended up winning by a single electoral vote. In hopes of avoiding such a situation in the future, Congress passed the Electoral College Act of 1887, which formed the basis for the current law. There have been no cases to date in which the process has changed the outcome of an election, according to the Congressional Research Service.
For more articles like this, please visit us at bloomberg.com
On the other hand, if thousands in that massive MAGA crowd hadn’t been so timid that day — and had followed the bold, riled up, normal tourist crowd that beat the Capitol police, smashed windows, broke down doors and invaded the Capitol — Mike Pence likely wouldn’t be around today to boldly tell a crowd of Republicans in New Hampshire:
“As I said that day, Jan. 6 was a dark day in history of the United States Capitol. But thanks to the swift action of the Capitol Police and federal law enforcement, violence was quelled. The Capitol was secured,” Pence said.
“And that same day, we reconvened the Congress and did our duty under the Constitution and the laws of the United States,” Pence continued. “You know, President Trump and I have spoken many times since we left office. And I don’t know if we’ll ever see eye to eye on that day.”
Then, because Pence is what he is, and has always been, he added:
“I will not allow Democrats or their allies in the media to use one tragic day to discredit the aspirations of millions of Americans. Or allow Democrats or their allies in the media to distract our attention from a new administration intent on dividing our country to advance their radical agenda,” Pence said. “My fellow Republicans, for our country, for our future, for our children and our grandchildren, we must move forward, united.”
“I don’t know if we’ll ever see eye to eye on that day.”
Or, as one internet wag put it right after Pence’s brave words were spoken:
Which is kind of a low blow. It’s not as if Trump was watching the riot live on TV, and tweeted anything like this moments after his MAGA crowd of normal tourists, who’d erected a working gallows outside (as normal tourists so often do) breached Capitol security and roamed the halls chanting “Hang Mike Pence!”
I’m convinced now, after his incoherent “op-ed” the other day, about his fond, Anne Frank-like hopes for bipartisanship and the sanctity ofthe filibuster, that Joe Manchin is an idiot. As smart as Trump himself, or Kyrsten “just change human nature, parliamentary rules are forever” Sinema, is what I’m saying. That our all-wise Founding Fathers made no provision for one or two idiots ending democracy was a serious oversight.It would be great to live in a country where majority rule, open public debate, bipartisanship and a sense of fair play were rewarded. We don’t live in that country, unfortunately.
The echoes of the high-minded liberal democracy in 1920s Germany, the Weimar Republic, relying on the better angels of Germany against a charismatic radical movement are hard to ignore (historians refer to this stance as the Weimar Republic’s “supine passivity” in the face of Nazism). It’s part of the problem of having well-meaning “moderates” and “compromisers” like Biden, Pelosi and Schumer in charge of the opposition party in a time of unprincipled, fantasy-based, well-financed, no-compromise extremism on the other side.
I don’t know if it’s a lack of guts, smarts, an inability to see just how radical and insane (and essentially unpopular, when you poll on actual policies) what they are up against is, or just Charles Koch’s complete victory in his well-engineered 50 year war against “majoritarian tyranny,” (his network has captured most state governments and now dominates the federal courts) but the Democratic party’s halting steps toward justice and accountability, even to investigate a carefully orchestrated, presidentially stoked lie-fueled (ad budget $50,000,000) riot to overturn an election, are really disturbing, as I don’t need to tell you, I’m sure. What do Democratic leaders not understand about Berlin 1932?
How Democrats got played into “bipartisanship,” by McConnell’s 51-49 Suck it Caucus is beyond me. The stunningly partisan McConnell’s sudden call for bipartisanship, by the party that gave us the last two party-line 51-49 “Suck It” Supreme Court justices, is the glue trap the dim Mr. Manchin is firmly stuck to (and, yes, Trump won Manchin’s conservative state by 40 points…). We also recall that McConnell got his 6-3 Supreme Court by changing the filibuster rule for Supreme Court justices, as he will nuke the filibuster itself, should he regain majority power in the Senate.
Someone compiled this chart of major post Civil War civil rights legislation, to show that amendments and laws supporting real social change are rarely, if ever, passed on a bipartisan basis. Those who want slavery, and believe that Negroes, because they are inferior, “have no rights a white man is bound to respect” (in the infamous phrase of Justice Roger Taney), are never going to suddenly compromise with those who want to amend the constitution to make slavery and racism at law illegal.
There was a kind of bipartisanship, since World War One, between Dixiecrats (racist southern Democrats who ruled the now solidly Red South) and racist Republicans, who united, time after time, to filibuster and block debate on bills that would have made lynching a federal crime, as well as the two twentieth century Civil Rights Acts.
The 1965 Voting Rights Act, which finally made enforcement of the 1870 Fifteenth Amendment possible, somehow passed on a bipartisan basis [1].
The most recent reauthorization of the Voting Rights Act, 98-0 in the Senate, was struck down by John Roberts in his deeply flawed, unappealable 5-4 Shelby County v. Holderruling back in 2013 [2] (tip of the cap to Leonard Leo and the Federalist Society for finding the weak-ass local Alabama case that allowed Roberts to neuter the Voting Rights Act and usher in the age of baseless fraud challenges to fraud-free voting).
The only thing recently that gave me any optimism was this bit from Heather Cox Richardson last night:
At the same time, McConnell appeared to win the filibuster over the January 6 commission only by appealing to his caucus to vote against it as a personal favor to him. Even so, lots of senators chose to be absent on that day. It is not clear to me that McConnell is confident he can hold the filibuster wall as he was able to in the past, and having continually to defend filibusters of popular measures can only hurt the Republicans.
That 35 cowardly weasels can stop all debate, hell, even one can do it, with an email, under present McConnell rules (Lyin’ Ted Cruz had to read Green Eggs and Ham not long ago to filibuster, I think it was Obamacare, suggesting the GOP-majority must have tweaked the talking filibuster rule recently) makes me want to holler.
But maybe, hopefully, Heather Cox Richardson is right and this 35 out of 50 filibuster vote shows how weak and counter-productive (for the GOP) McConnell’s “scorched earth” threat really might turn out to be.Can it be much more scorched than this, Joe Manchin?
[1]
The House approved this conference report version of the bill on August 3 by a 328-74 vote (Democrats 217-54, Republicans 111-20),[48] and the Senate passed it on August 4 by a 79-18 vote (Democrats 49-17, Republicans 30-1).[20]:167[49][50] On August 6, President Johnson signed the Act into law with King, Rosa Parks, John Lewis, and other civil rights leaders in attendance at the signing ceremony.[20]:168
Today, thanks to the last two 51-49 Suck It justices added by Messrs Trump and McConnell, that vote to strike down the Senate’s unanimous will, and the enthusiastic support of former president George W. Bush, who signed the law after making some remarks about its importance to democracy, would be a “bipartisan” 6-3 overturning of majority rule.
This story snuck by fast, leaving barely a ripple, but coming on the heels of the Department of Justice appealing Judge Amy Berman Jackson’s ruling that Bill Barr’s disingenuous “deliberative” Mueller memo must be released to the public, it is alarming. The Washington Post:
The American Civil Liberties Union of D.C., Black Lives Matter, other civil liberties groups and individual protesters accuse Trump and senior officials of driving the June 1 events. Military, federal and local police forcibly cleared the square using batons, clubs, horses, pepper spray, smoke and fired projectiles 30 minutes before a citywide curfew began. Images of violence drew a national backlash against Trump’s calls for “overwhelming force” to put down those he called “THUGS” and domestic terrorists. The nation’s top military official later apologized for walking with Trump before television cameras that day.
Lawyers for the ACLU said that despite legal precedents, the government’s defense would “authorize brutality with impunity” in the heart of Washington at one of the most symbolic spaces within the seat of the federal government.
DOJ lawyers argued a few days ago that the case must be dismissed. They argued that the ACLU’s lawsuit over the June 2020 violent dispersal of a peaceful crowd so that Trump could walk to a photo op must be thrown out because the President and Attorney General were acting within the scope of their authority, Barr exercising the “paramount” government interest of protecting the president when he ordered federal anti-riot police to use force to drive a peaceful crowd from Lafayette Park.
The Washington Post notes that right before Trump’s walk to the church to menacingly hold up a Bible:
Trump called on governors to “dominate your city and your state” in the hours before the crackdown, adding, “In Washington, we’re going to do something people haven’t seen before.”
Earlier, he tweeted, “When the looting starts, the shooting starts” as protests raged in Minneapolis. Trump also threatened that if demonstrators outside the White House breached its gates, they “would have been greeted with the most vicious dogs and most ominous weapons I have ever seen.”
Finally, the suit asserted that even as police moved on the square at 6:43 p.m., Trump spoke a few hundred yards away in the Rose Garden, saying, “[If] a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
The ACLU had the better argument, that peaceful protesters have rights that prevent the federal (or state) government from burning, beating, shooting or giving them asthma attacks with chemical irritants:
The lawsuits seek damages and a court order declaring that authorities conspired to violate civil rights statutes and the First and Fourth amendment rights of protesters injured after being burned, beaten, shot or put into respiratory distress.
As Trump told his riled up supporters during his #Stop the Steal rally on January 6:
“When you catch somebody in a fraud you’re allowed to go by very different rules.”
Presumably the same goes for lawful protesters, when they represent something as ugly and divisive as police accountability for the murder of unarmed, unresisting citizens — when they refuse to stand down in the face of concrete threats and ultimatums, you’re allowed to go by very different rules.
The DOJ, because, as it points out, the current president would never use violence against peacefully protesting anti-racists, moves to dismiss the case against Barr and Trump on those grounds, and on the grounds that Barr and Trump were acting completely within the scope of their duties when they used violence against a crowd, after numerous ugly provocations and threats by the president and the Attorney General, culminating in a calculated show of unconstitutional force to violently and “illegally” deprive citizens of their rights.
Compare Trump and Barr’s response to the peaceful protest on June 1 to the federal response to the January 6 riot, during which a violent crowd of excited normal tourists fought police, breached, overran and vandalized the Capitol to prevent the final certification of Trump’s loss to Biden. Because, when you’re with president Trump, you’re allowed to go by very different rules.
Nothing to see here. If you have asthma, don’t go to a peaceful protest that might be broken up by unaccountable government force including pepper spray, smoke bombs, stun grenades, tear gas and the armed charge of horse-mounted anti-riot police — in defense of the president’s unlimited right to provoke and order violence. You have to use common sense!
I am thankful that American court cases, however otherwise messed up and biased our system of justice is, are still decided based on the available evidence, facts proved in court, beyond a reasonable doubt. The ideologues on the Supreme Court can sometimes employ narrow legal theories to overturn a trial judge’s findings, invalidate or uphold a law, but judges in our trial courts are generally constrained by the facts in evidence in the case before them.
Some of our judges are heroic in this perilous moment when a Big Lie is better than the truth to millions of our countrymen. I think of federal judges like J. Nicholas Ranjan, appointed by Trump, who nonetheless took days to write a 140 page appeal-proof ruling dismissing Trump’s evidence-free voter fraud case as the seamless tissue of bullshit it was.
Another judicial hero is Judge Amy Berman Jackson, a trial court judge on the DC federal court. The trial judge’s first job is fact-finder, the court establishes the facts of the case before applying the law to the facts in evidence. Appeals courts review only alleged errors of law by the trial court. It is extremely rare for an appeals court to disturb the findings of fact by the trial judge.
Judge Berman Jackson’s fact finding sets out a great deal of detail in her rulings, she illustrates her decisions with vivid facts from the record. She recently denied the motion for pre-trail release filed for enthusiastic Trump rioter, Karl Dresch, after weighing the facts before her.
Here are few of the colorful facts she provided to support her findings, excerpted from many letters in support of Dresch’s motion for pre-trial release, from a long footnote of examples:
T.L. (pastor of a local church): “[Defendant and his wife] are not yet members of the church.” “We have shared a few meals together, and [defendant] has done some work for the church. . . . That is the extent of our relationship.” “[As] a fairly quick judge of character . . . I do not believe that [defendant] is any real danger to our community or government. I ‘think’ that [defendant] got wrapped up in a movement and made some very foolish decisions.”
A.P. (defendant’s longtime family friend): “While [defendant] may have been in the wrong place at the wrong time and got swept up in the unfortunate events of the day, I cannot imagine that he had any intent to inflict injury to persons or property.”
P.L. (defendant’s longtime friend and local attorney): “[Defendant] has very strong political views concerning government, in particular the legislative and executive branches, and law enforcement.” “[T]o be candid, [defendant] has occasionally exercised rather poor judgement.” “I have never known [defendant] to be violent in any way nor do I believe him to be flight risk nor a person who would obstruct justice.”
S.F. (casual acquaintance of defendant for past two years): “I can vouch for [defendant’s] sincere friendly character, morals and integrity over the time I have known him.”
In laying out the facts that support her decision to detain Dresch as a flight risk, and a danger to society, she includes a few pages of his social media posts, here’s one, from January 7:
On January 7, 2021, defendant commented on an unidentified post that “Mike Pence gave our country to the communist hordes, traitor scum like the rest of them, we have your back give the word and we will be back even stronger.”
and:
Bro you shoulda been there . . . . the news is all fake . . . and just to correct shit . . we wasn’t violent but we took the capitol . . . . antifa didn’t do it they may have had some idiots undercover in the crowd but it was us that got in . . . and we didn’t fuck shit up . . . I seen a broken window . . . we picked up water bottles and shit cleaned up . . it was grand . . . best day ever . . . I think it was a good show of force . . . look what we can do peacefully, wait til we decide to get pissed.
Of course, there is also a detail like this. In his home in Calumet, Michigan:
Among other items, agents located several hundred rounds of rifle (7.62) ammunition, a Russian rifle, shotgun shells, a shotgun, and an Atlanta Braves backpack. The ammunition was located in multiple places throughout the house, including the dining room, the master bedroom, an upstairs hall room, and inside the backpack. Specifically, the backpack contained a Pilot gas station receipt from Hagerstown, Maryland dated January 5, 2021, a Metro SmartTrip card, and 8 boxes of 7.62 ammunition, containing a total of 160 rounds. The boxes matched the boxes of ammunition found in the house. The firearms were identified in the Michigan State Police Report as a Mossberg 12-gauge shotgun and a Russian-made SKS 7.62 mm x 39 caliber rifle.
The Judge then turns to Dresch’s motion to set him free until the trial and analyzes the applicable law, in light of the facts.
Defendant argues that that government lacked sufficient grounds to move for his detention under the Bail Reform Act. Section 3142(f)(2) states that the judicial officer shall hold a hearing upon motion of the government or its own motion in a case that involves “(A) a serious risk that such person will flee; or (B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.”
Then she sets to work ruling that the section 3142(g) factors support detention on the grounds of dangerousness by clear and convincing evidence(and here, due to formatting limitations, I will not indent, but the following is all from the May 28 decision)
A. The nature and circumstances of the offense charged
The United States Capitol was not open to the public on January 6, 2021.
There was important business going on, though, because on that day, in accordance with Article II, Section 1 of the Constitution, a joint session of Congress was convened to certify the vote of the Electoral College in the 2020 Presidential Election.
This was after every single one of the fifty states, including those under Republican control or with Republican election officials, had certified its own count, and after court challenges to those counts or certifications had been rejected by more than sixty courts across the country – by state judges, and also by federal judges appointed by Presidents of both parties, including former President Trump. Vice President Mike Pence, also a Republican, was present and presiding, as the Constitution required. See U.S. Const. art. II, § 1.
The United States Capitol Police, federal law enforcement officers surrounding the building, and the members of the District of Columbia Metropolitan Police Department who were summoned to assist, were overcome.
Defendant was one of many individuals who made their way through the barricades and past the officers who were attempting to keep the crowd away from the building. He was one of the individuals who entered the closed building. And that day, the certification process prescribed by the Constitution was interrupted as members of Congress of both parties and the Vice President had to be spirited to safety or were forced to barricade the doors or hide.
(back to me) These facts are not in dispute. The “normal tourists” who forced GOP elected officials to flee for their lives and barricade themselves in safe rooms while these normal tourist crowds, after smashing their way into the tourist attraction, roamed the halls chanting “hang Mike Pence” and calling for “Nancy” to come out and face the music, had been whipped up by Trump and the most extreme members of his remaining extremist support group. Like this guy:
The judge quotes defendant again:
Ok all you conspiracy theorists . . . don’t worry I loves you all just setting the record straight. antifa did not take the capitol. that was Patriots . . . don’t give them the thunder, we the people took back our house, the news is all bullshit. and now those traitors Know who’s really in charge.
As to Dresch’s likely future actions, the judge cites the incendiary power of Trump’s ongoing lie:
Defendant’s promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information, (“Trump’s the only big shot I trust right now”), continues to propagate the lie that inspired the attack on a near daily basis. See generally From the Desk of Donald J. Trump, https://www.donaldjtrump.com/desk (last visited May 27, 2021). And the anger surrounding the false accusation continues to be stoked by multiple media outlets as well as the state and federal party leaders who are intent on censuring those who dare to challenge the former President’s version of events.
She sums up, a few pages later, after reciting defendant’s criminal history, including a drunk driving high speed chase (he did an impressive 145 miles an hour crossing from Michigan to Wisconsin to evade police) that landed him in jail, he served prison time in both states:
Given defendant’s offer to return to Washington to engage in a similar effort to disrupt democratic processes again, his warning that authorities here cannot reach him at home, the utter contempt he showed for law enforcement and the safety of the community during the high speed chase, the threatening remarks directed at an individual who was reporting participants in the attack to the FBI, defendant’s other convictions for obstructive conduct, and his knowing possession of multiple weapons and a considerable supply of ammunition after two felony convictions, the Court has clear and convincing reasons to believe that defendant poses a danger to the community that cannot be alleviated by the imposition of any conditions.
The court of public opinion may contain tens of millions who sincerely believe that Tom Hanks traffics and rapes children, then kills them and drinks their blood, and that because of heinous freaks like the falsely smiling Hanks, our country is in mortal danger and only Donald Trump can save us.
The American court of law, so far, has been fairly consistent in requiring proof, beyond the sincerely, even passionately, held opinions of those who honestly believe that their violence is necessary to save us all from Satanist, pedophile, cannibal, socialist, fascist, antifa, BLM culture warriors, dangerous monsters like blood-drinkers Tom Hanks, Ilhan Omar, Rashida Talib, George Soros and company.
Attorney General William Pelham Barr, live on TV, prior to releasing the Mueller Report:
“The Special Counsel found no collusion by any Americans in IRA’s illegal activities. In other words, there was no evidence of the Trump campaign collusion… There was in fact, no collusion.”
The 140 instances of coordination (or its synonym “collusion”) between Trump’s campaign and Putin found and cited by Mueller, without more, were insufficient to support a prosecution for Criminal Conspiracy, as Mueller concluded. This was in part because several Trump associates who spoke under penalty of perjury lied to Mueller’s investigators, the Russians Mueller subpoenaed were beyond the reach of American law and other evidence was destroyed.
Since Mueller issued his report more evidence has come out about direct ties and significant, direct collusion between Trump’s campaign manager, Paul Manafort, and the Kremlin, via Konstantin Kilimnik (some of this is documented in the post-Mueller Marco Rubio chaired Senate Report, a report Rubio touted as further exonerating the former president).
It should be noted that a good deal of crucial evidence was withheld by non-rat Trump associates who dummied up, or simply lied, in return for a dangled pardon for perjury or related crimes. Unlike in many of Trump’s other business dealings, he actually kept his end of the bargain, pardoning Manafort, Flynn and Stone, along with a rogue’s gallery of others. Can you say quid pro quo?
quid pro quo
In the former president’s defense, he is often called “transactional” — a transaction is a negotiated exchange of promises, goods or services. I give you this, you give me that. You don’t incriminate me, for example, I give you a full unconditional presidential pardon, for example. In Latin the phrase is quid pro quo.
Which leads us back to obstruction of justice. Same deal, note how carefully Barr phrases his lying spin on Mueller’s findings in Volume II, which detailed Trump’s tireless (and ongoing) pattern of obstruction of justice. While Mueller was prevented by DOJ policy from charging the sitting president with this crime, he stated that he would have exonerated him if he could, but that the evidence of obstruction of justice he had gathered did not allow him to exonerate the president. Here’s Barr’s take:
“The evidence developed by the Special Counsel is not sufficient to establish that the president committed an obstruction of justice offense.”
Telling your White House counsel to fire the Special Counsel, and when he refuses, instructing him to write a memorandum falsely stating he was never asked to fire the Special Counsel? This single incident of arguable obstruction of justice (to create a false document to cover up a possibly incriminating act) is not sufficient, even read together with the other nine instances detailed by Mueller, to establish that the president attempted to obstruct justice, or cover up that obstruction. In Bill Barr’s estimation, anyway.
Which is, no doubt, why he had Trump assert a ridiculously all-inclusive privilege that allowed White House counsel Don McGahn (and everyone else Trump had ever spoken to) to defy a Congressional subpoena until long after the first impeachment was over (and the second impeachment too, for that matter).
And Barr has a falsely classified legal memo to prove that he was on the up and up the whole time. This secret memo sets out the legal advice he got and details the legal discussions he had before he made the decision, even if that advisory memo, it turns out, was finalized after he sent his letter to Congress saying Mueller hadn’t found jack shit on the Unitary Executive.
This “privileged” memo, you see, contains the exact legal reasoning on which he relied when dismissing Mueller’s investigation as a partisan witch hunt that basically exonerated Trump of all wrongdoing.
The memo purports to show that Barr made his considered, legally nuanced decision only after getting legal advice that confirmed every jot and tittle of his determination.
Even though, it emerges, the same team (with Barr’s input)simultaneously prepared the letter AND the secret post-letter “deliberative” memo that justified it and they exchanged emails with edits as they prioritized finalizing the lying letter to Congress and the American people over the advisory memo, which they agreed could always be finished after the letter was sent.
The hilarious stand up comic pictured above (mocking those alarmed about the autocratic Unitary Executive theory embraced by right-wing zealots like Barr and the Federalist Society audience he is performing for) needs to be prosecuted for his role in the obstruction of justice he claimed there was inadequate evidence to prosecute Trump for.
History suggests that Merrick Garland may not be prepared to go this far, though I hope very much that I’m wrong. A few years ago Barack Obama made history by candidly stating that “we, uh, tortured some folks”. It was wrong, he said, and against our values, international law and the treaties we may have signed, but some very good people did it, during a very scary time, truly believing they were doing the right thing, so you know, to clear the air once and for all … yes, we tortured some, uh, folks.
Many Democrats in power only seem to register that fire can seriously burn them after they are actually being burned to death. They don’t want to be accused of being vindictive, politically correct, “woke” culture warriors by doing something that can be spun as viciously partisan, like millions of tax dollars spent on a long-running, high-profile Benghazi investigation, ten of them, actually, against then Secretary of State/presidential candidate Hillary Clinton.
Modern Republicans are admired by the base (al Qaeda, in Arabic) for shooting before they can be asked a smart assed question.
What kind of knife are we bringing to the obstruction of justice gunfight, Nancy? Chuck? Merrick?
I was perplexed by the DOJ’s appeal of Judge Amy Berman Jackson’s ruling that the falsely classified March 24 “deliberative memo” to Barr must be made public in its entirety.
Sekhnet asked me what Glenn Kirschner had to say.
Kirschner is a former federal prosecutor who retired a couple of years ago after thirty years on the job. He has been doing daily videos putting the agonizing legal shit show into perspective for over a year. He never missed a day, but he’s been off the last few. I told her that Kirschner was vacationing in Cancun, Ted Cruz-land as he phrased it, where he made one quick video, and that his wife, by the pool, had probably said, as he read of the DOJ appeal, “don’t you dare!”
As luck would have it, the former prosecutor was back at his desk yesterday, in a suit, and he gave this very reasonable account of why Merrick Garland’s DOJ would fight to keep a compromising, falsely classified memo secret. He gives some good insight.
(Heh, I love the clown nose arrow superimposed on his face, great look).
The DOJ already has the memo, knows that Barr was lying, and Garland is arguably protecting the institution of the DOJ, and its ability to keep future confidential documents confidential, with this appeal. On the other hand, (and it would not hurt the DOJ’s obstruction case against Barr) as Neal Katyal wrote in today’s NY Times, The Public Deserves to See This Legal Memo About Donald Trump.
Hopefully the DOJ is also working up a criminal prosecution against Mr. Barr, a gigantic, foul turd in human form. As Judge Amy Berman Jackson pointed out in her decision (at page 27), the plaintiffs (seeking the full memo under the Freedom of Information Act) had pretty much nailed the lying Bill Barr in their pleadings :
That the “deliberative memo” Barr disingenuously claimed he used to make his decision was prepared the same day he completed his cover-up letter to Congress, falsely telling them that Mueller hadn’t found jack shit that incriminated the Unitary Executive, (in fact, it turns out the “advisory” memo, written simultaneously by the same team that worked on Barr’s letter to Congress, was finalized AFTER Barr completed the misleading letter he sent to Congress — see the handy email time line the judge attaches at page 37 [1]) tells us all we need to know about the Bagpiper’s character, integrity, and his intent.
Now the only question is — will the DOJ pursue justice by prosecuting the bellowing culture warrior for his pattern of partisan obstruction of justice during his term as the unimpeachable Mr. Trump’s most powerful gunsel?
Hah, total fucking witch hunt by godless secular humanist scum!
[1]
One of the key players in this DOJ conspiracy to pretend there had been deliberations and legal debate before Barr sent Congress the fake news that Trump was “exonerated” by the Mueller Report (by preparing a false, ass-covering, after-the-fact memo of privileged “legal advice”) was a lawyer named Rabbitt, Brian C. Rabbitt. Yes, I know.
At 11 pm last night, in the last hour to do so, Merrick Garland’s DOJ appealed a federal judge’s order to produce the full nine page memo that Bill Barr “disingenuously” classified as a protected, deliberative memo he used to make his decision to dismiss the findings of the Mueller Report. The judge, who’d read the memo, ruled that it had been produced as a mere a rationale, for the decision Barr was determined to make regarding the Mueller Report since auditioning for the Attorney General job.Curiously, and shedding doubt on Barr’s story, it was dated the same day Barr wrote his immediate, misleading letter to Congress about Mueller’s findings.
Think back through the intense shit storm that was Trump’s term as president. After Mr. Trump’s cruel disappointment with Attorney General Jeff Sessions, his first mainstream supporter, who, with complete disregard for his duty of loyalty to the president, honored an DOJ ethics ruling and recused himself from supervising the investigation into a matter he’d lied about his involvement in, the president got a beautiful audition memo from William Pelham Barr.
Barr’s position in the legal memo was that Mueller’s witch hunt was basically illegal from the git-go and that the AG, under current law, could therefore dismiss its findings. Trump loved it and hired Barr (who had both gravitas and experience in creatively covering up likely presidential crimes, as he had at the end of the George HW Bush administration) to take over from Sessions’s interim replacement, an angry weight lifter in over his head.
Barr distorted the findings of the Mueller Investigation (which concluded they could not exonerate Trump on ten counts of Obstruction of Justice), essentially carrying out his promise to Mr. Trump (quid pro… never mind). Recently a federal judge found that the memo he’d classified, a supposedly “deliberative” memo (again, prepared the same day as Barr’s misleading letter to Congress announcing that Mueller had basically exonerated Trump) was, in fact, a legal fig leaf to give the illusion of deliberation to a decision Barr had made before Trump hired him. “Disingenuous,” wrote Judge Amy Berman Jackson, ruling that the DOJ must produce the full memo — or appeal it by midnight May 25 (George Floyd Day).
Scroll to the bottom of the black pages of the memo and you are rewarded with this, the top of the un-readacted final page:
What the fuck?
Take it, Grey Lady:
“Although the special counsel recognized the unfairness of levying an accusation against the president without bringing criminal charges, the report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public,” wrote Steven A. Engel and Edward C. O’Callaghan, two senior Trump-era Justice Department officials [in the last paragraph of the un-redacted section of the Barr DOJ’s controversial memo — ed]
Those actions included attempting to bully his White House counsel, Donald F. McGahn II, into falsifying a record to cover up an earlier attempt by Mr. Trump to fire Mr. Mueller, and dangling a potential pardon at Mr. Trump’s former campaign chairman, Paul Manafort, to encourage him not to cooperate with investigators.
The new Justice Department filing also apologized for and defended its Barr-era court filings about the memo, which Judge Amy Berman Jackson had labeled “disingenuous,” saying that they could have been written more clearly but were nevertheless accurate….
…“The government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused,” the Justice Department said. “But the government’s counsel and declarants did not intend to mislead the court, and the government respectfully submits” that any missteps still did not warrant releasing the entire memo.
Mr. Barr’s claim — which he made weeks before releasing the Mueller public [sic] — that the evidence gathered showed that Mr. Trump did not commit a chargeable offense of obstruction has been widely criticized as deeply misleading.
Would it not have been more accurate, NY Times, rather than this:
which Mr. Barr permitted to become public weeks after his letter to Congress had created an impression that the fruits of Mr. Mueller’s inquiry cleared Mr. Trump of obstruction
to state:
that Mr. Barr prevented publication of, including Mueller’s executive summaries, for weeks after he misleadingly dismissed the findings?
