United States of America v. Donald J. Trump

Posted: August 2, 2023 | Author: | Filed under: Uncategorized | Tags: , , , , , | Leave a comment

For the third time this year, the 45th ex-president was indicted yesterday. This time it is on four counts relating to his attempt to overturn the 2020 election and keep himself in power. Yesterday was an historic, if ultimately sad, day for America. For over 240 years, nothing like this happened. The hallmark of our democracy was the peaceful transfer of power following the certified results of elections. The ex-president (aka “the Defendant”) broke that tradition through a multi-pronged, coordinated attempt to overturn a free and fair election in order to retain power for himself. He seriously degraded wide-spread trust in our system and continues to do so today as he whines about “election interference” and a “weaponized” Department of Justice (DOJ). He may be the biggest threat to our democracy in our history, certainly since the Civil War. It is not a threat from abroad. The threat is coming from inside the house.

I recommend that you read the indictment for yourself. (Find an annotated version here.) It is an easy read — what is known as a “speaking indictment” — that spells out in plain language the key elements of the four charges brought against him. The longest part of the document lays out the case of how, and why, the Defendant and his six un-indicted co-conspirators, tried to empanel fake electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin to support the ex-president in seeking a win in the Electoral College by replacing the legitimate electors voting for Mr. Biden. Failing that, they hoped to create enough confusion that the decisions as to who gets the electors’ votes would be sent back to the individual states or sent to the House of Representatives where the Defendant would be declared president. It was a far-reaching conspiracy.

A necessary element of the plan was to bring Vice President Mike Pence into the scheme in order to get the slates of fake electors into the certification proceedings. As we know, Mr. Pence did not give in to the ex-president’s demands, but the indictment yesterday details the tremendous pressure brought against the Vice President to get him to cave to their demands. According to the document, the attempts to overturn the election results continued after the Capitol building was cleared and the House and Senate had reconvened. While Jack Smith, the Special Counsel overseeing the investigation, did not explicitly implicate the ex-president in directing the assault on the Capitol on 6 January, he makes it clear that sending the mob to intimidate Congress was part of the larger plot to undo the election.

As the criminal indictments mount against the ex-president — and a fourth indictment may be forthcoming in the days ahead in Georgia — it is worth contemplating the state of our nation had he succeeded. Our democracy would be wrecked. Probably, there would be some sort of martial law in place in many parts of the country. I do not say that frivolously as the indictment recounts how the plot participants were anticipating possible wide-spread protests should they succeed and opined that that was why there was an Insurrection Act as part of federal law. Without going too far into the specifics, the Insurrection Act allows the president to suspend Posse Comitatus which prohibits the Armed Forces from carrying out law enforcement activities. In other words, the president can deploy military and National Guard troops in the United States to suppress a declared insurrection or rebellion or to help in natural disasters. It has been used by presidents in the past, including to enforce desegregation laws in the 1950s and 1960s and to aid in preventing looting following hurricanes. Since the Defendant is running again for president, it is worth considering what kind of president he would be since he was pushing hard to overturn a free and fair election by all means at his disposal.

In his brief remarks last evening, Jack Smith noted that “the men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.” In other words, the attack was not just a one off. It was not an unforeseen anomaly. It was part of a conspiracy to overthrow our democracy. The Defendant has shown no remorse over what he did. He will try again. He learned a lot in his first attempts to keep himself in power. He will succeed the second time if given the chance.

There will be much wailing and gnashing of teeth by those that support the ex-president. They will claim that he was duped by his lawyers. They will say it is a First Amendment right to question an election. They will claim all sorts of feeble defenses for the Defendant. We know who the ex-president is. We know his morals, we know his lack of respect, we know his disdain for the Constitution, we know that he is working hard to be a dictator. We have known that for a long time. I am totally disgusted by the elected Republican officials that continue to support an indicted criminal or that remain silent. It is clear that they have no respect for the rule of law, the Constitution or the American people. They only have a blind devotion to one man in order to preserve their own power. This is not the United States that I thought I knew. As a retired naval officer, I take my oath to support and defend the Constitution seriously. Many of my fellow service members have given their lives in defense of the Constitution. It means something to those of us that understand what we are saying and doing. Clearly, the Defendant and his supporters in elected office have no understanding of that oath. None.

This is a grave development that none of us should celebrate. This is a sobering situation that puts our Republic and democracy in danger. This is serious stuff. Our national character is at stake. Our standing on the world stage as a beacon of democracy to the rest of the world is at stake. Benjamin Franklin is often quoted saying that we have a Republic, “if you can keep it.” This will be a major test of our ability to do so.

The Trashing of the Presidency

Posted: April 19, 2019 | Author: | Filed under: Uncategorized | Tags: , , , , , , , , | 1 Comment

Two significant events took place yesterday.  In one, the Attorney General went before the good people of the United States, and to put it kindly, embarrassed himself when he uttered misleading and deceptive statements regarding the Mueller Report.  The other event was the release of the 448 page redacted report itself.  In reading the Report it became clear that Attorney General William Barr is a shill for the President of the United States and will act in a manner consistent with many in the Trump Administration as outlined in the Mueller Report.  Lying and abuse of power are the norm as is so evidently clear in the Report.  (I have not yet read all of it — a compelling read, by the way.  You can find it here. It reads a lot like a mob crime novel.)  There is so much detail in the Report that it is easy to get distracted or to just stop and shake one’s head at the immoral and unethical activity detailed in it.  For now, let’s take a big picture view of what did and did not come out of the Report.

Not to put too fine of a point on it, but the Report most certainly does not exonerate the president.  It does not recommend prosecution of the president, but Special Counsel Robert Mueller clearly lays out a road map for Congress to act if it so chooses.  More on that below.

The Report comes in two volumes, one on Russian-Trump Campaign coordination and one on obstruction of justice efforts.  It is significant to note that the Report does not contain any counter-intelligence information.  In other words, it doesn’t answer the question if one or more of those involved in the Trump Campaign and Administration were involved with a foreign power (or powers) to act in a way that furthered the interests of those countries at the expense of our own.  A very major hole in the entire Report.  It is also pertinent to remember, that Mr. Mueller took a very narrow view of his charter and stuck mainly to investigating Russian interference and the president’s subsequent reaction to that investigation.  There are numerous “spin-off” investigations taking place in New York, Virginia, Washington D.C. and elsewhere.  Those are not impacted by this Report.

When reading Volume I, remember that “collusion” is not a legal term.  (Which makes it even more embarrassing that A.G. Barr said at least five times in his press conference that there was “no collusion.”  Of course there wasn’t.  It’s not a legal term.  He was clearly pandering to an audience of one.  But I digress.)  Mr. Mueller does not use the term collusion anywhere in the report. The correct terms are conspiracy and coordination.  Mr. Mueller said that the Trump Campaign activities did not rise to the level of a crime provable beyond the shadow of a doubt, but that there were numerous contacts between the campaign and the Russians.  More specifically he wrote in the Introduction to Volume I that:

As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

Wow.

Russia interfered in the election.  Russia actively worked to help Mr. Trump and damage Secretary Clinton.  The Trump Campaign knew about it and expected to benefit from it.

In Volume II the Special Counsel lays out the reasoning behind not charging Mr. Trump with the crime of obstruction of justice.  This section is, to me, quite interesting and exceedingly relevant. To the contrary of A.G. Barr’s assertion that Mr. Mueller could not make a determination, the Report clearly states why they did not recommend prosecution of the president for his actions.  Mr. Mueller followed the existing policy of the Department of Justice (DOJ) that a sitting president cannot be indicted.  However, he says, a president can be prosecuted after he leaves office.  Therefore, the Report states in the introduction to Volume II, that in order to safeguard “the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”  A big hint that criminal prosecution may be advisable in the future or that the Congress can use the information in the near term.

Additionally the Report goes on to say that it would not be fair to accuse the president of a crime, even though he is not indicted, because without an indictment no trial could be held and if there was no trial, then the accused could not defend himself.  In other words, under the rules we can’t indict a president, so we can’t bring him to trial, therefore we won’t say he broke the law, but we won’t say he did not either.  A considerable difference from the way A.G. Barr depicted the situation.  In fact, Mr. Mueller lays down a pretty compelling case that Mr. Trump probably did obstruct justice beyond a reasonable doubt.

Here is the kicker.  In the introduction the Report says that:

If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

In other words, we can’t say he committed a crime because then we would have to act, but we cannot act while he is in office, but (hint, hint) we do not exonerate him.  In fact, the only reason that Mr. Trump did not further obstruct justice was because some of his staff would not lie or act illegally on his behalf.  As the Report puts it, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

Who can take action?  The Congress.  The Report also takes note of that fact.  In a long discussion of the legal precedents and other factors governing presidential powers and Congressional powers as delineated in the Constitution, it states in part that,

Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regardless of their source.

The Report goes on to conclude that,

Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

In the context of the full report, it seems that Mr. Mueller is trying to lay out a road map for the Congress to take action.

The real question is whether or not the Congress will act on this extremely damaging delineation of the rampant corruption and flouting of the norms that used to govern our presidents.  Mr. Trump clearly has no interest in upholding his oath to defend the Constitution.  Will Congress?

Many political arguments are underway as to the pros and cons of initiating impeachment hearings.  One could argue that there should be no political considerations to be had.  Either the Congress has the duty to begin such proceedings given what we know (which is only the tip of the iceberg) or it doesn’t.

It most definitely is not time to “just move along.”  We must hold our elected officials to account.  As the true magnitude of this Report sinks in we as a nation must make considered decisions as to how to deal with it.  We either have a country of laws where no one is above the law or we do not.  So far, it appears we do not.  Even as I write this the president is in his lair at Mar-a-Lago using his Twitter feed to send out expletive filled expressions of rage to denigrate the Report, those that did the investigation, and those that had the courage to stand up to the president and refuse to do his bidding and told the truth about what happened.

Worse yet is that regardless of how one feels about Mr. Trump and what action should or should not be taken to hold him accountable, the evidence that the Russian Federation interfered in our 2016 election is irrefutable.  And yet, the president, who took an oath “to preserve, protect and defend the Constitution of the United States” still refuses to acknowledge the attack on the United States.

That alone should be an impeachable offense.

My biggest concern is that once again the president will take away the lesson that he can get away with anything and not be held to account.  Given his past performance, I think we can expect him to further ignore the law and to act outrageously.  There is no one to stop him and he now has an Attorney General that acts as his personal attorney ready to protect him.

Let us hope that the House of Representatives continues to exercise their Constitutional duty to provide over sight of the Executive Branch of government.  Otherwise, it’s “Katie bar the door.”  Hang on for a wild ride.

Of M.I.C.E. And Men

Posted: February 6, 2019 | Author: | Filed under: Uncategorized | Tags: , , , , , | Leave a comment

As Special Counsel Robert Mueller’s investigation continues, so far thirty-four people and three companies have been indicted or pleaded guilty to criminal charges.  Five of the six advisers to Mr. Donald J. Trump that are on that list have submitted guilty pleas.  Only time will tell how many more people close to Mr. Trump may be indicted as the investigation comes to a close.  I will not venture a guess as to who, or when those indictments will come down (I thought it would have happened long before now) but I have no doubt that others — some very close to the president — will be charged.

Whether those charges are directly connected to working with the Russians to throw the election in Mr. Trump’s direction is hard to say for sure.  However, of those indicted by Mr. Mueller to date, twenty-six are Russian nationals.

As the investigation continues to unfold, keep in the back of your mind the reasons why people spy on their own country or cooperate with foreign governments to undermine their home government.  What could motivate a person to betray their country?  There is an old acronym that summarizes those reasons.  It is M.I.C.E. and breaks down as follows.

  • M — Money.  This can take many forms.  Money to become rich.  Money because the individual needs it for personal or family reasons.  Money “owed” to them but because of “bad breaks” that they fault their own government for creating they never got what they felt they deserved.  And so on.
  • I — Ideology.  This was the motivator for some in the early days of the Cold War or for those that cooperated with the Soviet Union in the 1930’s, 40’s, and 50’s.  It is often an idealistic view of a particular ideology, such as communism being good for the poor and blue-collar workers.
  • C– Compromised.  This is otherwise known as good old-fashioned blackmail.
  • E — Ego.  This is one’s own sense of self-worth.  It can be the result of trying to increase one’s own sense of self-importance or it can be a result of having the ability to sabotage someone else’s sense of self-importance for pure spite.  Egos take many forms but the knowledge that you can do something and then did do something of great import is a significant motivator.  It can also be the ego boost of doing something daring or forbidden that no one else has the nerve to do.

In the current era, the two biggest motivators are money and ego.  And of course, some combination of two or more of these factors may play a part in getting someone to betray their fellow citizens.  For example, having compromising information on a potential asset may not be enough to bring them over to your side.  Sweetening the deal with substantial cash or some other fiduciary reward gets you there.  It could be that the potential asset is severely in debt and about to be embarrassed or financially ruined should that information become known.  That individual would be compromised by the release of that information. They are also further compromised if the “recruiter” offers to solve the indebtedness problem, which of course, further compromises the potential asset once they take the money or the debt is resolved.

Of those advisers to Mr. Trump indicted thus far, money and ego seem to be the driving factors.  We will see what happens as the investigation continues.  I for one will be curious as to their motivation.