The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

148 replies
  1. earlofhuntingdon says:

    Jack Goldsmith’s optimism about the limits of Donald Trump’s criminality – that it is limited to his presidency – is too cute by half. He seems to avoid financial crimes altogether. He also seems to argue that if crimes were begun and ended during his presidency, there is a safe harbor. There is not.

    To coin a phrase, hiring a senior executive as a public employee through an election process is not a suicide pact. It does not confer legal immunity on that executive. Nor are all crimes he might commit necessarily only dealt with through removal from office.

    Given the GOP’s recent abject behavior, it seems obvious that nothing the Biden administration does or refrains from doing will inhibit the next GOP president, if there is one, from subjecting its opponents and predecessors to harassment, intimidatory investigation, and prosecution. They have already made it their new “normal.”

    • Doctor My Eyes says:

      “Given the GOP’s recent abject behavior, it seems obvious that nothing the Biden administration does or refrains from doing will inhibit the next GOP president”

      The asymmetrical warfare is killing what is called “the left”, but is actually simply the sensible majority who wish to live decent lives and enjoy a functional government. Deja Vu with all the level-headed, pragmatic thinking, echoing Saint Obama’s language concerning how now-kindly Uncle W Bush’s war crimes and generally aggressive anti-American behavior should be ignored.

      Would someone explain the logic behind the widely accepted notion that the right has no choice but to kowtow to their actually-in-reality rabid, snarling far-right base while the left must–at the risk of electoral and policy disaster–distance themselves from not-actually-in-reality “crazy far left socialist” base? Is it really true that, because of democracy, government policy needs must be determined more by ignorant, anti-social, propaganda-deluded people than by socially conscious people who advocate for policy the majority of the country support? Helluva a way to run a country and not likely to end well.

      Seemingly intelligent people fantasizing about the Dems skipping on along in the face of what we are seeing brings to mind Marcuse:

      “Loss of conscience due to satisfactory liberties granted by an unfree society makes for a happy consciousness which facilitates acceptance of the misdeeds of this society. It is the token of declining autonomy and comprehension.”

      These days I think a lot about the phrase “declining autonomy and comprehension”.

      • Doctor My Eyes says:

        I hope I won’t offend if I continue with one more comment along the same lines. This is a question I’ve been wanting to bring to this site ever since U.S. District Judge Linda V. Parker ruled in favor of democracy on behalf of Michigan citizens way back on December 7, which is 3 months ago in 2020 time.

        The more I thought about the language of her decision, the more stunning I felt it to be as a marker of the times. This decision was celebrated as a satisfying smack down of the seditionists, but nowhere did I see a discussion of the magnitude of her over-all point:

        “In fact, this lawsuit seems to be less about achieving the relief Plaintiffs seek—as much of that relief is beyond the power of this Court— and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government.”

        Judge Parker (not certain of the appropriate term of address, which she richly deserves), explains the depths of this accusation of bad faith in her opening sentences:

        “The right to vote is among the most sacred rights of our democracy and, in turn, uniquely defines us as Americans. The struggle to achieve the right to vote is one that has been both hard fought and cherished throughout our country’s history. . . .
        These principles are the bedrock of American democracy and are widely revered as being woven into the fabric of this country.”

        Sure, this is a satisfying win and these days it is soothing in the extreme to hear any grounded explication of reality, but my question is whether there is anything actionable in this ruling, now or in the future in other cases. A federal judge accused petitioners acting on behalf of the sitting president of manipulating the court system for the purpose of undermining faith in bedrock principles of our country. Is this behavior okay? Do we need to listen to the likes of Goldsmith and simply move on?

        • Ralph H white says:

          I kind of threw up my hands and knew how hopeless this has gotten, when MSNBC had Alberto Gonzales on with one of the hosts as some type of expert arbiter of political prosecutions.

      • Ken Muldrew says:

        Would someone explain the logic behind the widely accepted notion that the right has no choice but to kowtow to their actually-in-reality rabid, snarling far-right base

        Because there are monied interests that are committed to policies that are supported only by a minority of the population. In order to set policy, they need a political party to endorse those policies, and there are only two to choose from.

        In order to obtain power in a somewhat democratic country, while holding minority positions, you need to at least be close enough to the majority (in terms of numbers of supporters) to use techniques of election management (e.g. gerrymandering, voter suppression, etc.) to win elections. So they need every single member of that minority to consistently vote for them and the way to do that is to pull the whole bunch of them away from the center. That way there are no undecided voters who might spoil their plans. Normalizing the fringe elements of the right pulls those who used to be in the center far enough away from the policies of the Democratic party that there is almost no possibility of them switching due to differences in policies.

        A party that tries to obtain power from a majority is not similarly beholden to their fringe elements since they count on appealing to those in the center.

    • Wade says:

      Why are we assuming Trump won’t just pardon himself? This all seems like a waste of time to me. Not that I don’t enjoy the blog. But Trump is gonna pardon everyone he knows, right?

      • emptywheel says:

        I assume that if Pence won’t agree to resign-and-pardon, he will try it. But I also think that that invites Biden’s AG to challenge it, necessarily, to uphold rule of law. And doing so on conspiring with Russia to cheat to get elected would be a more palatable case than, for example, the hush payments case.

        • Savage Librarian says:

          Jim Zirin, author of Plaintiff in Chief, suggests that there is another option:

          “…under the 25th Amendment, he could say, “I’m temporarily not going to discharge the duties of president, and they’ll be discharged by Mike Pence,” and Mike Pence will pardon him. And then he’ll resume the duties of president. “

          • Chris.EL says:

            …does the “25th Amendment route” cited herein comport with what we know — and what is apparent — lame duck prez Donald’s overwhelming cowardice?

            IMVHO I think *not*.

            Trump enjoys cruelty, surprises. Trump’s behavior going forward may be designed to leave us with a US Government in shambles, as best he can.
            Very troubling proud boys are touring White House! Most likely getting their “marching orders.”

            Jonathan Swan (Axios) on Twitter today:
            “I asked White House about Proud Boys leader being there today. Response from spokesman Judd Deere: “He was on a public WH Christmas tour. He did not have a meeting with the President nor did the WH invite him.”
            Would Secret Service inform anyone of irregular activities?

            • vvv says:

              Speaking of the 25th:
              Laurence Tribe
              11:36 AM · Dec 12, 2020
              “This man is armed and dangerous. Too bad we don’t have something like a 25th Amendment to sideline him for a few weeks until a grownup takes the oath of office. Oh, wait. We do! But we don’t have a VP, Cabinet, or Senate with the spine to use it. So sad.”

              (Apologies I don’t know how to block quote here.)

          • joel fisher says:

            This would have the benefit of making the legal picture very murky. Nothing POTUS wants less than clarity. Is this valid? What is the resulting impact on 5th Amendment privilege? A self-pardon also muddies the waters. I’d be amazed if the untangling of the 5th Amendment issue could happen in less than a year. One thing for sure: there will be some sort of pardon(s) for the offenses that Mueller identified, including the potential charges that EW points out are on the shelf, waiting for a non-POTUS defendant to materialize on 1/20. For those expecting to be disappointed by a flurry of pardons and endless litigation, remember there will be subpoenas and oaths. Trump can’t talk for one minute without lying.

        • Stacey says:

          Not to mention that all of his pardons at this point simply complete a circle of obstruction of justice around HIM. Just as dangling the pardons were attempting to obstruct justice before, now we’re coming full circle where giving them the pardons after they held out for him, sort of puts all of THEM and him in a pickle and sort of begs for them to be challenged, doesn’t it?

      • Smeelbo says:

        Worse, I suspect Trump plans on taking the Oath of Office simultaneously with Biden’s at his Maro Lago Rally planned for the same day. This is the logical conclusion from Trump never acknowledging that Biden has won. How many Republican Office Holders will attend Trump at Maro Lago instead of Biden in D.C.?

        • TooLoose LeTruck says:

          I’ve wondered about that very same thing…

          Will Trump try to set himself up as a POTUS-in-exile, no matter how absurd the idea?

          He just got how many state AGs and sitting US Representatives to sign onto his nonsense?

          I’m really curious as to what happens on Monday, when the EC votes…

          What will Trump and his GOP co-dependents do?

    • BobCon says:

      The whistleblower on Giuliani-Ukraine is a perfect example of why you don’t want to close the book so soon.

      In early summer of last year, the only piece that had bubbled up in public consciousness was the horribly defective reporting by Ken Vogel which was leading to the NY Times pulling a Whitewater-style hit job on Biden.

      And then the truth came out that Trump was engaged in impeachment-worthy behavior. There is simply no way Goldsmith can reasonably assume there is nothing serious left in the tank. We don’t even have the full story on Ukraine.

      MW is right that the Mueller investigation may have evidence that has yet to come to light. Who knows where audits of government contracts may lead? Where pressure on prosecutions may go?

      Goldsmith’s claim that Trump will somehow feed off of an investigation ignores what he is doing now with an absolute joke — he will not stop until he is made to account for what he has done.

      • Hika says:

        Without punishment of egregious crimes, you get more crime. This isn’t truly complicated. It’s just uncomfortable that a whole-hearted prosecution of Trump may open up the field to look at prosecuting egregious crimes from previous administrations. I believe that that is why ‘establishment types’ would prefer to perform the same old soft shoe shuffle and dance on by. If it is accepted that previous executives should be held accountable for unlawful actions, GWB’s admin. would be a target-rich environment and there is plenty of reason to want to pursue crimes against humanity from the not too distant past. The trickier politics comes in when close scrutiny is given to some of the activities that occurred during Obama’s presidency. Biden will know where those metaphorical bodies are buried and very likely would prefer to stroll along. But what happens on the next go round? Are American content to allow their executive branch to continue to operate lawlessly in some areas?

        • Montana Voter says:

          No, I did not argue that. I merely pointed out that rather than addressing my comments “flamethrower” changed the subject. You are attempting to further the diversion by attempting to characterize a very complicated circumstance with buzzwords intended to propel a narrative and avoid addressing the absurdities ” flamethrower” initially put forth. If this is representative of your argumentation, I can see why you get your ass kicked at trial.

          • bmaz says:

            “If this is representative of your argumentation, I can see why you get your ass kicked at trial.”

            Lol, this is the insipid blog comment diarrhea of someone that clearly does not know jack shit about actual jury trials. Buh bye.

  2. PeeJ says:

    My question is, what was the “predicate” for the initiation of the Hunter Biden investigation in 2018? Did the FBI accidentally intercept a phone call from the Biden team with a Chinese ambassador who was known to be an intelligence agent? Was one of the Biden staff members drunkenly bragging about their connections to some mysterious professor? Was Barr told to start investigations of all the most probable Democratic Party candidates for the 2020 election in 2018? If Trump is “mad” a Barr for not pulling a Comey and announcing an investigation publicly without any facts yet, did Trump know? Where did Trump get his information to press Zelensky to announce an investigation into Hunter Biden after Biden became the Democratic candidate? It really does seem like whatever Trump accuses someone of doing, he has done himself. Me thinks Trump doth project too much…

  3. harpie says:

    The FBI is not a member of either party

    I think many [most?] members of the GOP and many nat/sec people themselves might give lip service to this idea in public…but don’t really BELIEVE it.

  4. Alan Charbonneau says:

    What I don’t understand is why the extradition of Assange hasn’t been shut down by Barr. If Trump wanted to pay off Assange with a pardon but it is now too big of a risk, why not have Barr sidetrack it? Extraditing him would risk him cooperating with prosecutors, it would seem to me. Just curious.

    • emptywheel says:

      Shortly after Mueller asked Trump about it, Don Jr’s best friend learned of Assange’s upcoming prosecution, said he would never be pardoned, and suggested that Jr might be at risk.
      I think the case on the Assange pardon is too strong. That said, if Pence has agreed to pardon Trump, I think he might do it anyway, bc Glenn Greenwald has told him over and over it’s the best way to get back at the Deep State.

      That said, I’m not sure that achieves the desired effect bc Assange could be prosecuted in the UK under the Official Secrets Act.

      • MB says:

        I’d love to see a Venn diagram showing how much overlap there is between GG’s definition of “Deep State” and DJT’s definition of the same.

      • Franktoo says:

        After Ford pardoned Nixon, there was a big to-do about Ford having made a corrupt bargain with Nixon to become president. Ford agreed to personally appear in front of a Congressional committee and testify under oath about what actually happened. Won’t Mike Pence be putting himself in some kind of legal jeopardy if he made such a deal?

        • Intoned says:

          The deal between Ford and Nixon was well understood when the Senate confirmed Ford as Agnews replacement. The point was to get rid of Nixon and not have Agnew (also understood to be corrupt) become president.

          • bmaz says:

            This is bullshit and not what the critical three that went up the hill thought.

            And not only are you lying, you are sock puppeting the readers here. Pick one identity, and try not to lie.

    • PeterS says:

      Agreed. I asked a while ago how it was consistent that at the time Barr was interfering in the Stone case, to benefit Stone, he was seemingly active in getting Assange extradited. Buying Stone’s silence but doing what for Assange??

      • emptywheel says:

        Barr is protecting Trump. Protecting Trump also means not making this legal situation worse.

        Plus, Barr is opposed to an Assange or Snowden pardon for all the reasons virtually everyone in USG is.

        • timbo says:

          It’s certainly complicated…

          I wonder if Barr will get a pardon… he may have played a bit loose with non-enforcement of the Hatch Act… amongst other things?

    • harpie says:

      Speaking of Assange, he was mentioned in a speech given at the Rally for Trump today in DC;

      Speaker: President Trump has been betrayed at every step of the way. The Founders, in their wisdom, gave to him a tremendous power as President and Commander in Chief. He needs to use that now. He needs to invoke the Insurrection Act and suppress this insurrection. He needs to realize we are already at war with communist China and their proxies here inside the United States. The traitors, like Joe Biden. Their puppet is about to be installed.

      To stop them, he has absolute authority to declassify any file held by the CIA, the FBI, the NSA. He needs to order SOCOM to go seize all the files, all the data-bases. And he needs to free Julian Assange and put him in charge of doing a data dump to display to all of you all the skeletons out of the closet into the streets. Show the world who the traitors are. And then, use the Insurrection Act to drop the hammer on them.

      And all of us veterans who swore that oath, until you’re age 65, you can be called up as the militia to support and defend the Constitution. He needs to know from you that you are with him. If he does not do it now, while he is Commander in Chief, we’re going to have to do it ourselves later, in a much more desperate, much more bloody war. Let’s get it on now, while he is still the Commander in Chief. Hooah!
      2:52 PM · Dec 12, 2020 [VIDEO] 2:54 PM · Dec 12, 2020 [VIDEO]

  5. Savage Librarian says:

    Thanks, Marcy, greatly appreciated. We are so fortunate for the extraordinary work you do. It is also sad it is extraordinary, in the sense that it illustrates how negligent most of the media is. In July 2019, I shared the following sentiment. And, even if not intended to be literal, it now feels a bit more apropos:


    “Where’s your document,”
    The clear voice shouted out
    To the current occupant,
    Who was without a doubt,

    A man well seasoned like a cheese,
    That’s ripe with age and zest,
    Someone who could shoot the breeze,
    When he was at his best.

    He cocked his head and bent his ear
    And gestured to hear more
    From the steadfast officer
    Who was standing at the door.

    “If I’m not mistaken,
    You’ve dropped it on the floor.”
    He was not at all shaken
    As he locked an oval drawer.

    The officer stepped forward
    to approach the hardened man
    Who crossed a foreign border
    To enact his ardent plan.

    It was the grandest bargain,
    He mused as he was cuffed,
    And begging someone’s pardon,
    He felt compelled to call this bluff.

    “It’s just a piece of paper,
    With some sketchy words on it,”
    Said the cagey shift shaper
    Who never cared a bit.

    They departed from the room,
    But someone soon retrieved
    The fallen precious heirloom
    That was so tragically aggrieved.

    He had his day in infamy
    With a purple heart to boot,
    Forty-five was full of bigotry,
    Plus he stole a lot of loot.

    When he declared his independence,
    The Constitution was upheld,
    With the appropriate sentence
    That all tyrants be expelled.

    Now it’s we the people
    Who have to carry on,
    To reinvigorate the eagle
    Almost brought down by the con.

    “Where’s your document,”
    The clear voice shouted out
    To the current occupant,
    Whose fraud was routed out.

    • Chris.EL says:

      Very very very good, great epic poem!!
      In case folks are trying to kick back and avoid politics today, there appears to be the makings of a toxic brew of protesters, proud boys, disappointed magas, etc. aching to riot in DC NOW.

  6. Sandor says:

    A medical malpractice (insurance defense) attorney I knew, who mostly settled cases, as is routine, said: I hate going to trial – it means having so much work, so much uncertainty, and so much stress that I break out in rashes on my hands and face … but if I am to be a competent attorney, with all that that entails, then I must maintain my credibility as a trial threat.

    • earlofhuntingdon says:

      Insurance defense firms hate going to trial for lots of reasons. Winning is not guaranteed, no matter how good the facts and law are for the defense. And it’s a lot more work, which means other profitable work doesn’t get done. But they can bill for the prep time and for conducting the trial and any appeal.

      What their clients hate is the hit to their carefully crafted PR images. What they hate more is disclosure of discovered materials and giving the plaintiffs the ability to cross examine defense witnesses, which can increase the potential for things going South.

    • bmaz says:

      The not so dirty little secret is that most civil cases, even med mal, settle. I have never “hated” going to trial. Actually, I kind of like trial. Discovery I hate. But if you fear trial, fear losing, you should not be a trial lawyer. If you lose, so be it. But be such a pain in the ass that everybody knows it and thinks twice before trying to jam you into trial the next time. Make them hurt, irrespective of whether you win or lose. Sometimes you kick ass, sometimes you get your ass kicked. You have to be willing to do it.

      • vvv says:

        Agree, 100%.
        Discovery is far too often boring, but can be made more interesting with objections and motion practice.
        But I like trial, too, because as a process it takes complete focus almost to the exclusion of all else, and while never really great at it, I feel great that I’m good at it.
        And I also like and am pretty great at being a PITA.

        • Zeke says:

          I spent 15 years in a public defender’s office and can unequivocally say that by the end of my time there, trials were the only thing I enjoyed (and I enjoyed them immensely, even given the amount of time you end up getting your ass kicked. Or, more accurately, my ass kicked). Civil litigation is like physics to me: I don’t understand how people can sort it all out but I’m glad (and a bit envious) that they can.

          • bmaz says:

            Hi Zeke, welcome to Emptywheel. Please join in more often. 15 years as a PD is a good long stint. Bet there were some fun trials.

            • Zeke says:

              Thanks very much. I’ve lurked here for years and never commented, but have always appreciated the great content. I have another few days of quarantine before being released back into the wild, so will likely be more active in the comment section as a distraction. Apologies in advance…

              • bmaz says:

                Oh, please do, and I look forward to it. We all come and go depending on what else is going on, but I think we can use your perspective here quite a bit.

      • Rollo T says:

        A long time ago I was told by a more experienced attorney “It’s not your case, it’s the client’s case”. Getting my ass kicked was not the issue. The client and their case was primary. The advice didn’t make me care any less about my clients or the process, but it gave me perspective and helped separate my ego from the client’s needs.

        • Zeke says:

          Only speaking for myself but I hated losing, even in those cases where a guilty verdict was a foregone conclusion and the only reason to go to trial was because of the stupid sentencing guidelines. To whatever extent I may have been an effective advocate, my ego played a (not insignificant) role. In my experience, the absence of ego is a much better trait in a prosecutor than in a defence attorney, as I found the most effective prosecutors to be the bland, dispassionate, here-is-the-evidence-you-jurors-do-what-you-want-with-it types. Again, I know that civil litigation is a different animal so take that for what little it’s worth.

        • bmaz says:

          Yes, and that is such good advice. You have to care, but, the old adage that facts, evidence and law win cases, not lawyers, is almost always true. Especially true in criminal cases, though for civil ones too.

          • vvv says:

            Indeed, in plaintiff civil practice, it is “facts, evidence and law win cases”, *and* the client(s).

            When it’s about money – as it usually tho’ not always is – the finder of fact wants to find something worthy about the plaintiff.

            Otherwise … let’s just say you learn about “nominal damages”, motions for additur, *etc*.

            But it also doesn’t help if they hate the lawyer.

            • bmaz says:

              In civil, it has to include the client. In criminal, not so much. They mostly need to sit there and look nice and good, but are quite unlikely to testify.

              All this reminds me how much I miss trial courts right now.

              • vvv says:

                Yes, I’ve had three kicked. One was just set for late Feb, but I fear that is optimistic. Joliet (Will Co., IL) is saying that after the first of the year they will use two court rooms to try 2-3 criminal cases and 1-2 civil cases daily, with one room for each trial with everyone spread out and the attys, judge and wits behind plexi and on mic, and the second court room to be used as the jury room. Other counties have indicated similar, altho’ not Chgo (Cook Co.).
                And yes, I had no trials in 2020, for the first time in probably 20 years or more (I know that one year earlier in my 35 years I also had no trials as I was between jobs).

      • oldoilfieldhand says:

        ‘But be such a pain in the ass that everybody knows it and thinks twice before trying to jam you into trial the next time. Make them hurt, irrespective of whether you win or lose.”

        A concise breakdown of the actual framework supporting the vaunted “Rule of Law”. Truth matters not at all, only what people can be coerced to believe…or doubt!

        • bmaz says:

          Yeah, the “vaunted rule of law”, contrary to your comment, does indeed support exactly that. Criminal defendants are guaranteed the right to presumption of innocence, the right to an attorney, and the right to trial. Is there something about those Constitutional protections you disagree with? If so, which parts?

        • vvv says:

          And from the civil law POV, I’ll add that yours is the opinion of a person ignorant of the law, the courts, juries, insurance company practices, and what the true meaning of “The Rule of Law” is other than a cliché for you to whine about because you don’t understand the practical application.

  7. Peacerme says:

    I truly fear the codependent belief that Dems have acted out for years, that taking the moral high ground is the moral equivalent of letting bygones be bygones. This would be what happens in domestic violence when he/she or they forget about the beating last night and move on hoping it will never happen again.

    ignoring the broken laws of the Republican Party. From Iran contra, to Plame, to Iraq war, to Russian interference in our elections, to literally torturing children on the border in a way that will alter their brains for life. Dems behave with this moral superiority that is really just codependency. Instead of living in the truth and allowing the natural consequences, as provided by our laws, the Dems intervene like the father who calls in legal favors for their drug addicted child to save the family name. Never realizing that by interfering with the natural consequences, the perception of truth is altered for the addict and that this interference may well only bolster the disease and hasten the fatal illness of addiction. (If left untreated). This doesn’t require chastisement or anger, but love and the discipline to refuse to protect that addicted child from the consequences of the disease, or the violent partner from the consequence of violent behavior.

    If you love your country, you let the truth and it’s consequences reign. And if you are behaving outside of dysfunction you allow the consequences to speak truth to the nation. No matter how unpopular or risky that is. To refuse to do so under some self righteous belief of superiority, some hope that if we ignore it it will go away will continue to chip at our democracy. Dysfunction is contagious. Taking the moral high ground means applying the legal process for truth’s sake despite the consequences. We need Biden’s demeanor of love respect and compassion but we need it side by side with the highest commitment to truth and the legal processes of our country!!

    • puzzled scottish person says:

      GOP (per Trump):

      Do what thou wilt shall be the whole of the law.


      We obey laws and social norms.

      It’s really shitty but that seems to be how it is. The Dems need to get medieval on the GOP if the Union is going to survive. Do everything by the book but do whatever you have to to survive.

      Trump is not just going to waltz off to Russia; he doesn’t accept he lost and the GOP are willing to OVERTURN on his behalf. And I bet they will throw the SCOTUS (enemies of the people, intellectually impure, etc) and everything else under the bus if they have to.

      It can happen, and is happening right in front of you.

    • Stacey says:

      I am fully on board with the domestic violence analogy of the Rs and Ds dilemma. I was a volunteer at the WYCA domestic violence shelter years ago, as a court advocate for women prosecuting their partners for abuse–in Nashville–in the 80′. So pre-enlightenment for sure!

      And the lens through which I think is helpful to view the clearly asymmetrical warfare we are/have been in for a long time, is this. The MOST dangerous time for the woman attempting to leave her abusive partner IS the act of leaving her abusive partner!!!!! Because the entire enterprise for the abuser is about NOTHING but pure power, her exodus from his grip is the greatest challenge to that power and therefore is an existential threat to his entire being. Her decision to leave will ‘force the final act’ of the play and he will make a pretty serious attempt to kill her for this affront to his power.

      Obama’s team’s struggle in the run up to the 2016 election where they were weighing their reaction to Putin’s ‘medaling’ in the election with their fear that he had his finger on the switch to many of our infrastructure elements including our power grid in the country, not to mention the switch to our elections apparatus, was quite a sword hanging over their head!

      70 million armed and infected zombies running around ready to go all Hannibal Lecter on your democracy is a pretty large counter weight in your good governance decision to hold them accountable for their past/current behavior. As they become Dead Man Walking through loss of victory/options to maintaining Trump in power those circumstances WILL force the final act, whether Dems in any office do anything to provoke it or not.

      I would NEVER advocate for the woman NOT leaving the abusive relationship, nor would I EVER advocate for the Dems NOT holding these F@#%$^%&*(* accountable in every way possible for their behavior. And also, if the abusive partner you are trying to leave safely is the Chief of Police in a small town in Nebraska who went to high-school and played football with every male adult in town who is married to every female adult in town, and he’s been isolating you for 15 years from everyone who could ever help you escape, you have quite the dilemma. And because we’ve allowed the situation to metastasize into what it now is, our own fear of the violence we don’t want to kick off by doing something will end up providing them with more and more steam. And in the end, there will be violence and there is no winning this battle outside of a “Burning Bed” scenario. But Dems are constitutionally ill-equipped for that battle plan.

      • Norskeflamthrower says:

        “But Dems are constitutionally ill-equipped for that battle plan”

        I’m afraid you are correct but this is a big country and the ability to hold it together against well organized and funded militias with nothing to lose will require a national military response. The Pentagon has spoken, thru their “retired” leadership, that in the event of an armed insurrection the regular military will stay in their barracks. This will leave citizens in the middle between militia and their police allies and the National Guard. I’m not optimistic about the outcome.

        • Montana Voter says:

          Please provide some verification of this assertion. Also please tell us when the “retired leadership” of the Pentagon can determine what the military would do upon the order of the new Commander in Chief, if in fact, an armed insurrection were to take place. Also some confirmation that there are “well funded and organized militias” capable of defeating national guard troops who are trained, organized and armed with real weapons of war let alone our regular military.

          • Norskeflamthrower says:

            Yes, McMaster gave us “reassurances” several weeks ago. And go ahead and live in your bubble, argue with those who are calling a spade a shovel and pretend that institutionalized minority rule and corrupt police unions don’t threaten your community. Sigh…unbelievable.

            • Montana Voter says:

              McMaster has become what he decried in “Dereliction of Duty” he was with Trump the whole way. He no more speaks for the active military than I do. I see you can’t respond to any of my points about the effectiveness of the “militias” so you want now complain about corrupt police unions. You are blowing smoke to cover your lack of facts. Unbelievable.

              • Norskeflamthrower says:

                Yes McMaster WAS all in with the Dumpster that’s why his announcement that they would stay in the barracks was made: to reassure the frightened folks like me out here that there was nothing to worry about and a wink to the lunatics. Pretending that we aren’t in imminent danger of a complete authoritarian takeover is delusional.

    • Hika says:

      At some point the cries about putting country before party will swing around to the lack of action by Dem leadership when it comes to cleaning up the mess of a half-way broken country.

    • diggo says:

      refusing to “protect that addicted child from the consequences of the disease” is immoral, as with ANY disease.

      Unlawful or corrupt intervention is an entirely different matter.

  8. scribe says:

    Trump is not going to be prosecuted federally. Full Stop.

    Not because of fucked up investigations, DoJ screwing around or anything else.

    It will be because the complexities EW has written about for so long now are not now part of the public understanding of whatever it was Trump did that might have violated federal criminal law before or during his presidency. Rather, the public would understand any prosecution to be, on the one hand, partisan payback, and on the other (for those who paid a bit more attention over the last several years) as an outgrowth of the Resistance which sprang up in the fall of 2016 and the last 4 years of Democrats deriding Trump’s 2016 election and administration as “illegitimate”. And the mass media, which cannot manage to communicate anything that takes more than 15 seconds to read, will not be able to communicate any of the complexities, nor will they try. And the average TV news-reader (most of whom give me the impression of someone meeting word-spew quotas with the aid of coke) doesn’t have any understanding of what did, or did not, go on. Even Goldsmith, who is a smart guy who can communicate, is doing a crappy job of it at best.

    The media will allow – through stupidity, ineptitude, bad communication and some malign desire – the idea to take root that any federal prosecution is payback or partisanship. You can be sure that idea will be fertilized, watered and nurtured by Trump’s followers.

    Appointing Sally Yates to anything at DoJ will be presented as pure partisan payback. After she made a show of herself quitting in a snit and for that became a Resistance Hero (here and elsewhere) back in 2017, Biden putting her anywhere near DoJ will be presented as tainting anything she or the department does.

    On the idea of state-level prosecution in NYC, it might go somewhere. The problem is that in the business of NYC real estate, the kind of valuation chicanery we’ve seen laid out in filings is normal everyday business. As is paying off people*. And, given the vehement if not violent reaction to Trump which has prevailed (and been nurtured by NYC pols) for the last 4 years, he could make a reasonably-likely-of-success argument that he cannot get a fair trial because there are no unbiased jurors available.

    As it is, I’m of the opinion that the best service DJT could give the country, going forward, would be to keel over from too much McD’s. Not likely to happen, but still.

    But the Biden administration will look at the risk-reward, see lots of risk and not much reward in prosecuting DJT, and let it slide.

    And given the quality of the lawyering we’ve seen in the last month of election litigation, I’ll make another prediction. If Trump is prosecuted, the next time a Republican takes the presidency Bill Clinton will be court-martialed for raping Monica. Thursday the S.Ct. said there’s no statute of limitations on rape prosecutions under the UCMJ – some of those cases were decades old – and Willie was the Commander-in-Chief at the time. It might be bogus, but it’s actually better-founded than some of the crap which was accepted for filing in these election cases.

    * Years ago, a relative worked in Trump’s NYC office. Saw him on a regular basis. I heard it all in real time back then. Told me then DJT was very clear that he gave to pols of all parties not because he supported them but rather because he viewed the campaign money as protection payments to get him a clear path so he could build.

    Now, who likes the Bills tomorrow night?

      • BobCon says:

        Nobody knows what is out there. Even if Biden signals a forgive and forget attitude, Trump is fully capable of breaking the law in February and forcing the issue.

        At which point, the idea that the past four years are off limits becomes extremely hard to believe.

    • BraveNewWorld says:

      There is also the issue that any jury or grand jury would be made up 50% Republicans. Of those Republicans 70% view Trump as an infallible god and will take the same see no evil attitude as the Republicans in the Senate did. Not only were Trumps lawyers right when they claimed he could shoot some one in Times Square with impunity while in office, but in fact will remain unconvictable for any crime committed before or after leaving office as well. The law and thus SCOTUS disagree with me but I don’t think reality does.

      • BobCon says:

        That calculation didn’t work out for Stone in his DC trial. Manafort seems to have benefitted somewhat from a biased juror in VA, but he still got convicted in multiple counts, and one diehard Trump backer in the jury still felt she was obligated to vote to convict on most charges because the evidence was so clear. I wouldn’t assume he gets a prediposed set of jurors in an NYC trial either.

        Maybe Trump could benefit from a hung jury in DC or NYC with a crooked juror or two, but if he has a ton of evidence against him and a serious crime, there is nothing stopping a new trial.

        And that doesn’t begin to address the dangers of civil action against him. He has good reason to worry in some cases more about civil than criminal trials.

      • Hika says:

        You’d have to be aiming to get a jury of independents and not-interesteds who have not registered with either party for just about their entire adult lives. Is that feasible?

  9. Duke says:

    I am sincerely asking any of you learned folks on this website, can you see similarities and or significant differences between our current national experience and the rise and fall of another eagle-owning party of the past?

    • Chris.EL says:

      wouldn’t call myself learned, don’t know the German language, but the bizarre capitalization patterns of Trump’s twitterings seem to be echoed in writings of a certain long-deceased bunker-dweller with an unattractive mustache and hairdo.

      • Duke says:

        Thanks for the response. Based on the lack of a response from others, history may not validate my question. In my defense this commonly referred to as as a 50,000 ft. View Admittedly, I wish to have the similarities logically explained away AND I want to have significant contrast presented assuaging my fears. Paranoid would be a more apt term if I was not wanting to be told and shown to be so.

        Put your faith and fate of your world in one man and your world crumbles.

        • Hika says:

          Have you read Bob Altemeyer’s work “The Authoritarians”. Interesting, and somewhat chilling, stuff about the nature of authoritarian rule by considering not the mental make-up of authoritarian leaders (who are all various forms of psychopaths) but rather considering the everyday nature and prevalence of the supporters and enablers of authoritarian rulers.
          Search on-line. He has made free on-line versions available, in addition to the printed book and audiobook.

    • P J Evans says:

      We don’t have the same governmental organization, so it’s harder to go that route. Fortunately. (I’d say late 20s, if I had to guess.)

    • Nehoa says:

      I get where you want to go, but so many entities use eagles in their heraldry it is almost meaningless. There is the Austro-Hungarian empire, the Imperial Russian empire, Byzantine and Holy Roman empires, and the list goes on. Some were relatively successful, others less so. I don’t think you can read too much into eagle iconography. Eagles are just such badass birds everyone wants to be an eagle. Best wishes.

      • pdaly says:

        Your point is well taken, although Ben Franklin, at least, was not impressed with the choice of eagle as our national bird. He wrote his daughter so:

        “For my own part I wish the Bald Eagle had not been chosen the Representative of our Country. He is a Bird of bad moral Character. He does not get his Living honestly. You may have seen him perched on some dead Tree near the River, where, too lazy to fish for himself, he watches the Labour of the Fishing Hawk; and when that diligent Bird has at length taken a Fish, and is bearing it to his Nest for the Support of his Mate and young Ones, the Bald Eagle pursues him and takes it from him.

        With all this injustice, he is never in good case but like those among men who live by sharping & robbing he is generally poor and often very lousy. Besides he is a rank coward: The little King Bird not bigger than a Sparrow attacks him boldly and drives him out of the district. He is therefore by no means a proper emblem for the brave and honest Cincinnati of America who have driven all the King birds from our country…”

        Franklin criticizes the drawing of the eagle that was to be the emblem saying it resembled instead a turkey and then Franklin goes on to defend the moral character of the turkey, but, unlike the myth, Franklin did not champion the turkey to be named the national bird.

  10. Pace R.H.Pace says:

    O/T But relevant: There is indeed precedent for Senate action against disloyal members.
    Please alert all of our Congresspersons and Senators to this historical reminder:

    [FYI: not certain what you were trying to share but the link(s) caused this comment to get hung up. The link to the Twitter thread has been salvaged. /~Rayne]

  11. PeterS says:

    “abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files …. for a pardon for Julian Assange”.

    At the risk of being pedantic what may have been traded is a possible pardon, not a pardon. There are two reasons for this, firstly who would trust Trump to keep his side of any bargain, and secondly and more importantly, who in the summer of 2016 was confident of a Trump presidency?

    I guess for Assange, anything was worth a punt, but what was traded? Why would either side have believed a few Podesta and DNC emails would swing the election? I feel there’s something missing.

    • emptywheel says:

      Understand that the point of the quid pro quo was not necessarily to free Assange, but to compromise Trump and Stone.

      • PeterS says:

        It didn’t seem difficult to compromise Trump, think of his son’s willingness to take the Trump Tower meeting. The Russians/Assange weren’t really selling they were giving, whereas the pardon sounds like a price. But perhaps asking for a pardon from a transactional guy was to convince him of the value of the information on offer.

      • Hika says:

        Ding! Ding! Ding!
        Given Assange’s ‘relationship’ with Sec. Clinton, he would have relished the opportunity to mess with her campaign and seen that as a gift to himself. The pardon dangle game with Trump put a bow on it for him.

    • Molly Pitcher says:

      France helped us in the American Revolution, perhaps this precedence in a Western democracy will help us deal with Trump.

      • Ewan says:

        Sarkozy and France are not a very good analogy for Trump and the DOJ. Sarkozy wasn’t as popular as Trump with his base. Unfortunately a character much more like Trump, bombastic, populist, corrupt, sex crazed, and a Moscow puppet ( according to the leaked Embassy cables ) was recently in power in Europe. Silvio Berlusconi gave himself immunity, but nevertheless was trialed and eventually charged. He was then re-elected, and stayed a king marker for many years.

        The Trump problem isn’t going away trial or not. His fans will stay his fans.

  12. gmoke says:

    Given the release of Bag Man by Yarvitz and Maddow and the history of the “no sitting President should be indicted” rule it seems to report (I’ve not read the book only seen the interviews), I’m wondering if there will be any discussion of changing that little bit of “professional courtesy” within the Biden DOJ.

  13. MattyG says:

    The executive summary prefacing the Mueller report expalins that it is “unconstitutional” to indict a sitting president, and this determination (unchallenged in the report it seems) colors the tone and intent in the way information and evidence of crimes was presented. EW cautioned readers that it is not a findings report, but a summary of the prosecutions and declinations undertaken or considered.

    Barring a pardon wouldn’t DT be open to any charge (known or unknown) that Mueller declined on the grounds a sitting president can’t be indicted? While the report is not a catalog of evidence supporting a prosecution of DT, it clearly states that it was not able to exonerate DT in it’s investigation. The entire case file – not just the report – including on-going investigations, will be at the disposal of the next DOJ/AG to pursue what Mueller had (or may have) determined were un-chargable crimes. Isn’t it simple like that? Isn’t really a question of willpower – of intestinal fortitude?

      • emptywheel says:

        A quid pro quo pardon would go toll from 2018 sometime, assuming he doesn’t actually pardon Assange.
        Obviously, any obstruction one would toll from the Flynn pardon or whoever ends up getting the last one.

        • bmaz says:

          I think you are FAR giving too much credit for “tolling” in criminal considerations. It doesn’t work that easy. And it is extremely unlikely a Biden Admin DOJ wants to really argue it.

      • MattyG says:

        I recall reading somewhere that if the JD declines to charge – even if they know there was a crime – they will not/can not announce “while we have evidence so and so committed a crime we decline to charge”. And there’s a legal term for this institutional deference granted to the non-charged. DT would have been accorded the the same respect I assume – though Mueller did chose words to suggest there was more under the hood. So if Mueller couldn’t stand there and list all the evidence that they *could have* charged him with but didn’t, how should we interpret the content of the report? Sure lots of this has been discussed here at length, but with a new admin/DOJ set to take over the reins in DC isn’t this a critical issue?

        Let’s say the investigation uncovered evidence DT had an understanding with people he knew to be acting on belhalf of the Kremlin, and that in exchange for election assisitance and perhaps a tower in Moscow he would endeavor, as president, to remove economic sanctions levied against Russia and other assorted policy favors. And, to signal he was on board he would weaken the anti Russia language in the party platform. If Mueller/Rosenstein etc. had ruled out indicting DT, I presume they could not say this explicitly in the report. And wouldn’t the tradition of not describing the case they “could have brought” have effected the content of the report right down the line? Put another way, how different is the story in the case file itself? Did Alan Weissman’s book, or his and Mueller’s body language for that matter, shed any light on what they uncovered?

          • MattyG says:

            I realize AW’s book could not be specific. But when Mueller was in front of Congress it sure sounded to me like he was saying, in so many words, “look guys the next stage is up to you – we’ve said as much as we can say about a person we can’t charge”. Wishful thinking? Perhaps.

  14. Smeelbo says:

    I am afraid that the Republican Party will face no consequences for their recent multiple Coup Attempts, and so will keep pushing the limits until they succeed. 126 sitting representatives joined in a lawsuit to toss out the votes in four states. What’s next?

    The logical consequence of Trump’s inability to recognize Biden’s win would be for Trump to take the Oath of Office in Maro Lago simultaneous with Biden.

    • Bobby Gladd says:

      “What’s next?”

      Attempted GOP sabotage in Congress on January 6th, 2021, I would guess.

      “…Oath of Office in Maro Lago simultaneous with Biden.”

      LOL. y’know, nothing would surprise me at this point.

      • posaune says:

        Seems to me that any judge, federal or otherwise, willing to administer an “oath of office” to Trump would easily be impeached. (or ousted immediately from his/her chambers)

      • Smeelbo says:

        I imagine that like Napolean Bonaparte, he administers the Oath to Himself.

        While I don’t think any Supreme Court Justice would be there, I can think of about 126 Republican Congressmen that might attend.

  15. jdmckay says:

    OT, but… Marcy, have you ever thought about (or been approached) turning your work into a very professional, detailed documentary? I am sure there are well heeled progressives out there who would enthusiastically support this project with plenty of $$$?

    I can think of a bunch of reasons why this is not just a good idea, but would have a major impact with the public and… likely, congress as well:

    – Everything you do is very detailed. Usually requires non-trivial time to read associated posts, understand the timelines, and (for me at least) go back and read associated posts to make sure I really get my head around what you are saying.

    – Given time (and effort) it takes to do this, I’d bet a lot of your reading audience is not thorough. Even more however, can’t count all the times Dems have held hearings on subjects you have covered in detail and NONE of them seem to be aware of detail in your work. This dramatically reduces their efficacy.

    – Much of public, too busy to read EW, who rely on network/print news for 30-60 minutes a day simply don’t have facts to distinguish between what generally is portrayed as he said/she said partisan spats. So many of these issues you cover portray clear, meaningful distinctions which clear amibiguity shrouded in partisan political spats.

    – I can think of many more, but given Trump and current Repubs have taken lawlessness, crime, deliberate dishonesty and lieing, and utterly corrupt govvernment to levels I have not seen in my 65 years on this planet. I read all the comments today and last few days, and most regular commenters that have been here a long time are saying about the same things I think most of us have had run across our minds… which more or less accept our politics have gone off the cliff. In this article alone, the gamut between “Trump won’t be prosecuted” to “If Biden’s AG goes after Trump Repubs will do the same next time they have the WH” to “Biden should go after Trump’s ass”. Presentinhg your work (in documentary) could go a long way to eliminating this kind of “calculated” (or not) prosectutions. Given what Repubs/Trump have done just with this election stuff I find chilling along with Trump’s sabatoging Fed. Gov for Biden only further brings this into focus for me.

    Sooo… I just wanted to put this out there. Things are getting worse, not better. Repubs are going to kneecap Biden for 4 years, and I do not think Biden has the gravitas to overcome this.

    You are the best at what you do, more thorogh and detailed then anyone I am aware of writing on these issues. I think a project like this is doable, if it’s something you would be willing to get behind.

    • skua says:

      “… Things are getting worse, not better. Repubs are going to kneecap Biden for 4 years, and I do not think Biden has the gravitas to overcome this. ”

      Obama, to get elected, created grassroots community organisations. Once elected these were left to rot on the vine. (AIUI)
      Abrams has taken a somewhat different tack, onethat is on-going and successful.

      It may be that those Americans who want a functioning democracy will have to spend an evening a week doing local, hands-on, mask-to-mask political work to create and maintain their functioning democracy. (Vaccines will very likely make this easier.)

  16. GKJames says:

    Goldsmith’s approach is nearly identical to Eric Posner’s (NYT 03 Dec). Both glide past the law — no way would an obstruction prosecution succeed, the other charges are weak, it’s never been done before — and head straight to political considerations (why waste political capital; Trump would become a martyr, etc.). Neither addresses the inference their reasoning produces: a president cannot be held accountable for criminal conduct. Not sure that’s what the Framers — very much concerned with monarchs — had in mind.

    • BobCon says:

      They are assuming Trump did nothing serious and even if he did, there is no evidence, and furthermore he won’t do anything in the future to trigger an investigation.

      Is there zero chance he doesn’t start trying to trade in classified info for development opportunities? Is there zero chance a whistleblower is waiting until the coast is clear in January to provide evidence? Zero chance he tries to extend shady rentals to dubious interests that paid him the past four years?

      It is as if these people haven’t been paying attention these past five years.

    • earlofhuntingdon says:

      They understand the Democratic party establishment better than it does itself, and the arguments it would find most persuasive to get it to do what they want.

      • GKJames says:

        Maybe. But doesn’t that go to their political argument, rather than the legal one? I get that a Biden DOJ has to calculate the political ramifications. But Goldsmith and Posner take (or, more accurately, ignore) a cartload of evidence and conclude, as a LEGAL question, that DOJ wouldn’t get a conviction (even though it often prosecutes — and wins — on less evidence than that). Why, as a legal matter, would they cavalierly prejudge the case simply because the defendant’s an ex-president?

        • earlofhuntingdon says:

          Goldsmith and Posner? Because Trump will be their ex-president. Besides, they don’t have to believe their argument. They need only hope that a deeply centrist and overburdened president, relying on his experience during the Obama presidency, believes it.

          • GKJames says:

            I don’t follow. What’s their agenda? Could their views simply reflect a broader attitude in the legal community? See “The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives” (Jesse Eisinger).

      • BobCon says:

        I get that is their aim, but they are still being woefully naive.

        Do they really think Trump will cut out the public crime wave? What happens when his Secret Service detail, no longer bound by the authority of a president, publicly balks at orders to break the law?

        What happens when he spills top secret info on Twitter jeopardizing the lives of assets? When grifters openly brag about continuing an illegal quid pro quo started in 2017?

        Bush had the common sense to lie low and paint pictures of his dog in retirement. The Pelosi-Schumer brain trust may pretend Trump will go back to selling steaks, but how long before events overtake them?

  17. I Never Lie and am Always Right says:

    A question for someone more knowledgeable that I am regarding a possible Pence pardon of Trump. If Trump resigns, would Pence have to be sworn in as President before he can issue a valid pardon? If so, the focus would be on finding a person willing to swear in Pence as President.

    My understanding, based on who swore in LBJ as president, is that any federal judge can swear in a president. I have no doubt that, in theory, Thomas or Alito would in theory consider swearing in Pence. But would they have the intestinal (or testicular) fortitude to actually swear him in, knowing that the whole purpose of the swearing in is to permit Pence to Pardon Trump? I think there would be some unpleasant fallout for whoever does the swearing in.

    On second thought, never mind. Neomi Rao is a Judge. She would do it.

    • BraveNewWorld says:

      I don’t agree with Pence’s politics, but he doesn’t come across as stupid to me. He has managed to stay fairly clean so far, at least compared to every one around him. I can’t see him voluntarily stepping on a mine at the 1 yard line. Since 45 being president isn’t what it used to be.

      • earlofhuntingdon says:

        Pence is either grossly incompetent or deeply cynical, perhaps both. His so-called management, while governor, of Indiana’s HIV crisis was murderous. His management of the USG’s Covid response is in the same category.

        • AndTheSlithyToves says:

          Like most hi-profile evangelicals, the Pence clan has become a bunch of con artists and grifters, sucking off of the public teat and using their duly-elected positions to enrich themselves, their families, and their benefactors. Pence’s brother, who bailed out of the family business before it went bankrupt, sits in his brother’s old Congressional seat.

  18. Nehoa says:

    I would look to non-criminal angles. Financial reporting issues. Tax issues. Reimbursements for excessive payments to Trump properties, and 2017 inauguration scams. Bleed him dry. Much lower political capital needed. And has the benefit of distracting him rather than him distracting us.

    • Alan K says:

      Quite logical. I think this is the most likely path, too. Will the consensus revealed (surprisingly) by the bipartisan success in passing limits on shell company cut-outs auger a stronger push against NYC real estate corrupt practices?
      Maybe that’s why the family is moving to Florida? Perhaps there are some fun extradition fights in the near future!

  19. Savage Librarian says:

    Since you mention in this post that DOJ withheld almost all of two interviews with Margaret Kunstler, I thought I would just note this as an interesting aside. As tvor_22 commented some time ago, Ellen Ratner was once Kunstler’s sister-in-law, and also has connections to Assange.

    FWIW, it may not mean anything at all, but I find it interesting that Ellen Ratner, Jerome Corsi, and George Nader all have connections to Cleveland, OH. And that is where the 2016 RNC was held.

    Nader dropped out of Cleveland State University to start a magazine, Middle East Insight, which became well known in policy circles. His executive editor, Jonathan Kessler, came from AIPAC. So, I can’t help but wonder whether Nader has connections to Ratner, Corsi, or Kunstler.

  20. VilnasHoon says:

    It is my belief that for the good of the republic Trump and his family/associates need to be investigated and prosecuted for any crimes they may have committed. I also believe that given the wretched state of our practical reality pursuing prosecutions of Trump et. al. will tear the country apart and result in violence from the extremist right, plus uncertain long term damage to our institutions. I also firmly believe that failure to pursue prosecutions of Trump et. al. will inflict long term damage on our democratic institutions. I honestly don’t see a practical path forward and I earnestly wish it were otherwise. I sincerely welcome countervailing perspectives.

    The only solution I do see is entirely unrealistic and will never come to pass. But here is the one way forward that I can envision. The Kaiser Sose answer if you will. It is this: the Biden administration investigates and prosecutes Hunter Biden for any crimes that they may identify, but there must be at least one substantive violation. This is followed immediately by aggressive prosecutions of Trump and family/associates for whatever crimes they may have committed.

    That overall result would not be fair or just, in my view, given what I understand to be the overall equities of our reality. But I honestly can’t think of any other path by which, as a practical matter, Trump can be brought to justice without a significant risk of massive civil unrest and outright political violence, coupled with longstanding damage to the practical functioning of the institutions of our republic.

    I really don’t know what else to say here in light of the number of Republican AG’s and legislators that joined in the attempt by the Texas AG to overturn the results of election. The readers of this site do not need a detailed summary of all the ways in which our democratic institutions have been assailed over the last several years, and in particular since the November election. To my mind it is clearly sedition.

    From that framework, the criminal conduct of the Trump administration needs to be prosecuted for the good of the Republic. But I don’t see how that would play out as a practical matter without horrific (and long term) fallout driven from the radical right. The only way I see it possibly working is a Hunter Biden prosecution by the Biden administration, which is obviously a non-starter.

    I regret that there is likely no practical way in which Trump and his family/associates can be brought to justice without a scapegoat (in the classical sense) to forestall complaints of bias and political motivations.

    Pardon my self-indulgence with this post. I am using this to think out loud and mourn what I see as profound damage to the foundations of our democratic institutions.

  21. Mitch Neher says:

    I must be reading this wrong. It looks to me like Goldsmith is saying that:

    The investigation by one [i.e. the Trump] administration of the predecessor president [Obama] for acts [Crossfire Hurricane] committed in office [in 2016] would be a politically cataclysmic event.

    No, no, no . . . If, and only if, the Biden administration did it, then, and only then, would it be “. . . an intraparty investigation, where the worry will shift to one party’s desire for self-protection.”

    See also: “Ain’t Nobody Here But Us Chickens” by either Johnny Otis or Louis Jordan, or both, for all that I can remember anymore.

    • timbo says:

      This sort of logic makes it more and more likely that corruption will grow, not shrink, in our society. It may be what happens but why are people like Goldsmith seemingly advocating for continuing corruption instead of accountability?

  22. CD54 says:

    Why isn’t anybody thinking (LBJ-style) about designing and using Federal prosecutions as a means to corral/hem in ALL of the scummy Trumpkins within an argument or fight which locks them into a narrow history which is publicly/politically indefensible?

    So far they have all skated by virtue of a coordinated Omerta — nothing ever happened, nobody did anything. Start putting them under oath, on the record, and peeling through the layers of the onion. The uncomfortable, embarrassing truth will out.

    • Rugger9 says:

      Indeed, I’ve been calling for that for a while because every time the Ds let the GOP off the hook, the line for acceptable conduct got pushed farther down, and now we have DJT.

      Pascrell’s idea does have merit (not seating the GOP house members) and would also interfere with Mo Brooks’ ideas to steal the election in the House. However, thoughtcrime is not on the books here, and it would take an overt act such as acting on Allen West’s secession plan and/or joining one of the MAGA rallies that advocate overthrow of the election.

      Claims of treason made by the GOP and the RWNM aren’t supported by any direct, provable evidence and understand that if the Ds don’t have it here, they will set the precedent (like the so-called Biden Rule) for the GOP to use in the future. Evidence now of actual crimes would change the precedent dynamic. I have no doubt the GOP leaders will comply.

      FWIW, why not kick out Nunes for what he did during the impeachment investigations and the midnight runs? Those were pretty illegal IIRC.

      • Chris.EL says:

        Hereby seconding Nunes to have his butt-in-the-ringer for the tattletale runs to Dear Leader’s white house; wonder what is going on with the co-flunkies appointed to the (was it) Defense Dept.? Probably looking through files and burning anything incriminating. (Or keeping for kompromat.)

        Can Trump be impeached after his term ends (hopefully with two additional Senators from Georgia!!) — for purpose of rendering Trump ineligible for ANY subsequent runs for public office? I’d like to see that!

        • Smeelbo says:

          When I am feeling paranoid (which is too often these days), I wonder if there is a connection between shutting down the intelligence units tasked with monitoring ISIS, and Trump prohibiting any of the Military Intelligence Agencies briefing Biden. Is there something afoot Biden is deliberately kept ignorant of? A January surprise?

    • The Old Redneck says:

      I’m not so optimistic that the truth will come out. If all you can do is press these people to testify about what happened, I think these people will maintain the Omerta. After all, it’s largely worked for them so far.
      The only way to get them is with a paper trail (emails, bank transactions, recorded phone calls, and such) which can’t be denied. That’s what drove the guilty verdicts for Manafort and Stone. I just don’t know if that trail exists for DJT and other big targets.

  23. jaango says:

    Today, Chicanos are the “cutting edge” of progressive politics, especially when measured against our ‘racial and ethnic’ cohorts. Take, for example, of the over 8,000 Elected and Appointed Officials, and if each were to be ‘polled’, we would find that Biden would be encouraged to discard the Republican ‘swamp’ and thusly, wasting taxpayer dollars on Biden’s DOJ to ‘attack’ the Republicans and in particular Trumpudo and his minions, would not achieve anyone’s self-satisfaction for Good Government.

    Thus, Biden establishing his weekly Saturday Morning Bloggers’ Conference, would Biden’s political reach be greatly expanded and properly grounded. Further, the Democrats funding of $500 million annual expenditure to create the Municipal-owned Internet News Network, would further reduce the always-present Republican propaganda, which is evidenced on a daily basis, and has over these many years, diminished the value of good governance. The alternative of course, is to establish the futuristic National Monument and Museum for Criminal Stupidity.

    Moreover, we, as nation, expend close to $1.8 trillion in “national security and defense,” and yet only Chicano-oriented progressives have ever advocated for the establishment of the National Institute for Asylum Practices to be located in either Mexico City or of Sonoran Desert to address and accomplish on daily basis, and quite effectively, and as such, our Character Consolidated to be recognized as Decency Personified.

  24. jaango says:

    Back in early August of this year, Chicanos established the national “Boycott of Twitter.”

    And today’s Blog Mania has yet to issue its first presumptive Yes or No as to this support or non-support for such tangential advocacy in reducing the propaganda that manifests itself on a daily basis. Thus, this “cutting edge” of progressivism, has yet to addressed, in either context or content. And emptywheel dot net is no where to be found.

  25. pdaly says:

    I still like to quote footnote 1091 from the Mueller report.
    It seemed to be a reminder to Congress that impeachment is just the political remedy to remove the president from office, and that subsequently and INDEPENDENTLY the ex-president can be criminally prosecuted for the crimes committed:

    “A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment.”

  26. Badger Robert says:

    Everybody has to pay taxes. Going after Trump for fraudulent loss declarations is the easiest way to hold him responsible.
    The Hatch Act provides a non criminal law method to start restoring norms.
    The emoluments clause is best way to tie up Trump and Trump descendants in endless litigation.
    Don’t treat the former President as a politician, treat him like Al Capone.

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