Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland
I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.
I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.
It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.
It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.
But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.
I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.
And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:
- Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
- Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
- Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
- Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
- Emphasize the prosecutions/charges/investigations that have or are occurring.
- Describe the damage done by Trump’s pardons.
- Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
- Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
- Explain how shoddy John Durham’s indictments are.
- Focus on the legal threats to democracy in the states.
Counter the propaganda effort to treat the Jan 6 defendants as martyrs
Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:
- The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
- They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
- Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
- January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
- January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.
Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.
Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years
As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.
What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.
This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.
This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.
Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past
There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.
Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.
The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.
But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.
A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.
There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.
Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect
In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.
There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.
Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.
Emphasize the prosecutions/charges/investigations against Trump that have or are occurring
Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.
Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.
His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.
The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.
Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.
Describe the damage done by Trump’s pardons
One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.
Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.
That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.
Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.
Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?
The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.
Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law
Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.
Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.
However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great
Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.
“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.
“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.
Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.
“We sure as heck could have used $121,000,” Palatucci told CNN.
Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.
And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.
Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.
It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.
Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.
Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).
It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.
Explain how shoddy John Durham’s indictments are
One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.
We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.
As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.
And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.
With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.
If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.
Focus on the legal threats to democracy in the states
There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.
But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.
Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.
The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).
In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.
Update: Added “suspected” to the PV bullet.
Thank you so much for this. I’m so sick and tired of the Garland-bashing; I now find myself turning off (or avoiding outright) podcasts where the hosts start tearing into Garland, even in light of news that the DOJ is doing its job and investigating the numerous Trump crimes and January 6.
I’m not a lawyer, but my younger brother, who is, served in the DOJ. My older brother just retired from the FBI after being a Special Agent for over twenty years. What I learned from them is that cases are not solved in two seconds or an hour–that’s LAW & ORDER, not real life. In real life, cases take time and ongoing open cases cannot be discussed in public. Putting together ironclad cases that will insure conviction is a process that may seem frustratingly slow to others but it guarantees that all bases will be covered.
I suspect that the Garland bashers–sadly, some of them are on the Left and a few of them spent 2016 attacking Hillary and letting Trump off the hook–are doing it for eyeballs and clicks. That they are not giving their followers and/or listeners the full story is a travesty.
I completely agree with you. However I am worried that if the republicans gain control in 2022 and more in 2024 all these important investigations and indictments will cease.
I’m with you and I’m with Marcy. I’ve helped catch a few baddies and I know some of what it takes to do effective prosecutions.
Yes, some of the ‘stuff’ we see is about eyeballs and clicks. But from what I’ve seen, most of it is that people _just don’t know_ how the criminal justice system actually works, and they’re _anxious as hell_ about the possible outcomes relative to the 2022 elections. That combination produces frustration & anxiety, that in turn produce impotent demands for unrealistic outcomes, and the dynamic spirals into what we observe.
Thus Marcy’s point (4) is vital: ‘Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.’
We need to patiently educate people about this _and_ address their feelings of anxiety and urgency. Emotions motivate behaviours, so if we don’t address the emotions, we will get nowhere. Think of how phobias work: someone may recognise the facts about e.g. the safety of air travel, but still be afraid of flying (before COVID). What their intellect tells them competes with what their emotions tell them, and the emotions rule, and the person has a phobia.
So as we patiently explain the facts, we also have to address the feelings.
And the best cure for political anxiety and political depression is to get engaged in activism in whatever way one can. Signing up with an organised GOTV (Get Out The Vote) effort, or with an OSINT org such as SeditionHunters, or working on fundraising for a campaign, etc. etc. etc. All of it counts, all of it makes a difference, and anything one starts doing with commitment will immediately flip the anxiety & despair into the fierce determination to succeed.
That’s a message we need to repeat endlessly in all progressive media: If you’re anxious about the future, do something about it. Get involved, do the activism, help _make_ history.
Yes, but we have been doing that here for a very long time, and certainly from the start in the 1/6 cases. People still want to hand wring and whine. There is a process, let’s be glad it is being mostly followed, that is a good thing.
I’m here in Michigan, where the Crumbley parents were charged within days, and are in jail right now. There was no nine-month investigation, and nobody feels that “due process” would have required such a long delay.
Well isn’t that precious Robert, you and your little friends in Michigan are gung ho that this publicity seeking, in way over her head, rookie DA immediately charged the parents. And, by all appearances, significantly overcharged them, and with the wrong charges. further, it was highly inappropriate that she did not take more time for investigation and more deliberate and intelligent charging. Not to mention setting an arraignment four hours and without the parents available, and the immediately issuing a state and federal “manhunt”. That was just ludicrous, and she should not be in that office. But, hey, you salute such absurd and reckless prosecution and want it on, apparently, all cases. What a guy.
And, by the way Robert, you might note that that is a state case, which is light years different from federal investigation and charging standards. But you don’t give a damn about such details do you?
Counties of Oakland and Wayne as well as State of Michigan didn’t experience a disruption in continuity like the change between administrations and Congress, and staffing changes both in federal hirees and appointees. Crumbley’s parents also easily chargeable unlike thousands of insurrectionists who needed to be ID’d, screened for location, and a metric crap ton of digital evidence sifted before individuals could be charged.
IOW, let’s not compare apples to oranges. And yes, I live in Michigan, too.
I might take issue with how easily chargeable the parents are, or should have been. And I certainly take huge issue with how they were charged and what they are charged with. Vicarious civil liability exists, in some form, for parents’ children’ acts in every state. But direct criminal liability for top count crimes when the parents neither planned, participated in nor knew whatsoever of the crime their kid was to commit is quite another thing. That strikes me as a very dangerous and slippery slope. And, contrary to what most people are saying, the evidence seems to be that the weapon was secured in the house, though not in a proper gun safe (although that is not required in Michigan).
First, the parents have some liability because their minor acted maliciously or willfully to cause bodily harm.
Their current charges are more severe than this, but the parents’ deliberate lack of intervention when warned is more than a “your kid hurt somebody” situation. Heck, we have absolute liability of dog owners in this state for a dog bite even when provoked; why would we expect less of parents who’ve armed a kid and ignored warnings by educators about the kid’s stability, demonstrating more than plain vanilla negligence?
Second, the gun could not legally be the minor child’s – it’s either the adults’ weapon or it’s illegally the minor’s. Because they made no reasonable effort to secure the gun after having presented it to the minor and allowed the minor to display it on social media, there’s parental responsibility with regard to gun ownership. MI state handgun regulations
I know you’re going to see this differently being a criminal attorney, but as a parent in Michigan these parents are proven threats to the safety of other families. Their gross negligence deserves a stiff penalty.
So far, the evidence seems to be that the gun was minimally secured under Michigan law. Liability for a dog bite is, of course, the vicarious civil liability I described, as is the $2,500 civil liability statute you cited. The legal owner of the gun, per the purchase documents, was the father. When I was a kid, guns were purchased for me, to wit a couple of shotguns. But those were legally owned by my mother. So what? The only person that knowingly violated the Michigan handgun statute you cited was the kid and the parents do not appear to have had any knowledge he was doing so. The gross negligence statute you cite appears to also contemplate civil liability given that it talks solely in terms of damages. This DA is out of control and ridiculous, Michigan should be embarrassed at how she has conducted herself.
I don’t know when you find time to sleep but I’m really grateful for your analysis and expertise. Your insight into this particular situation is brutal in terms of not expecting democracy to be saved by DOJ but also not assuming that means Garland & co. are just ambling around shooting at a little low hanging fruit & nothing more still feels hopeful. Not that it alone will save us but that there’s a lot we just don’t know so in the meantime DO SOMETHING instead of just whining about what we don’t know (looking at you professional media legal analysts).
This is the most striking piece of media criticism I’ve read in quite awhile. Thanks!
High praise coming from you. Thanks.
I’m with you, and especially your point (4) about educating the public about what it takes to do effective prosecutions.
See also my lengthy comment in reply to Marc McKenzie above.
All of us who understand these things need to help educate others, particularly others in any progressive media space including the blogosphere.
Fully agree with these points, although, I’ll admit, it is hard to be patient when the clock is ticking. These things do go slowly if done correctly, but there has to be some acknowledgment that by the fall of next year, we could have a very different Congressional balance of power, and everything could grind to a halt for long enough for this to all go away via statute of limitations (sorry bmaz, IANAL, so, this may not apply.) Sadly, I dont think you can just speed things up, but from the get go, there has to be a strategy that recognizes the potential for the other team to run out the clock. (which has worked pretty marvelously so far it seems.)
Anyway, on a more constructive note, what seems to get Jacobus and others tweaked, is that there is SOOO much obvious evidence of criminality, yeah, blah blah, the ten obstruction issues never charged under Mueller, the calls to GA Raffensberger, etc. A lay person sees this and is like, WTF, how is this not so criminal that you just dont indict from what we already know??? And I personally dont have time or ability to digest the law and the facts to be able to make any kind of statement about this. It feels bad, because in your gut you know it was part of all sorts of criminality to steal the election. So…my point is, I think we need a basic primer to explain why these things don’t just end up being indictable, so lay people can understand it, not just, be patient, it’s behind the scenes. And maybe you have to address each one of these topics that seem to get people so jacked up about justice not being served because DOJ isnt really trying. Because the stuff like the Trump obstruction way back when seems to people like it’s already been swept under the rug, or just ignored, or just, well, that was too challenging, so, let’s move on to other things.
This isn’t in any way a criticism of the fabulous work you do Marcy, the above being but one awesome example. I just think it is over the heads of many people, and CJ is a good example today of how even “political strategists”, haha, cannot grasp the reality of why it is not so simple to just slap the cuffs on em and haul em off. Would that it were…
[Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve used “Geoff” most often. Thanks. /~Rayne]
“And I personally dont have time or ability to digest the law and the facts to be able to make any kind of statement about this. It feels bad, because in your gut you know it was part of all sorts of criminality to steal the election. So…my point is, I think we need a basic primer to explain why these things don’t just end up being indictable, so lay people can understand it, not just, be patient, it’s behind the scenes.”
— Read dr emptywheel and associates every day! —
You hit the nail on the head. This site is extremely valuable for those of us who don’t have Dr. Wheeler’s amazing ability to suss the details, nor the legal background to understand the nuance.
Thanks to all for what you do!
I’m afraid, despite a lot of what you write here being points well made, & despite fully understanding that yes, busting Trump for his role on Jan 6 is going to take a while if it can even be done [though RIP the USA if it cannot], I’m still tied up in a knot about the Mueller obstruction, which we know [I think] _was_ fully investigated & was just awaiting the final charging decision that was obvious but that Mueller nevertheless was persuaded not to make. It seems to me that on day 1 in the DoJ, that might be one of the first things I asked about if I was Merrick Garland, apart, obviously, from the immediate fall out of Jan 6. If you are him, don’t you just appoint a new Special Counsel to ‘finish Mueller’s work now that Donald Trump is out of office & more evidence may be available along with more evidence of further obstruction’ & just let _them_ indict Trump for the obstruction Mueller found & investigate any sabotage by the trump DoJ for later additional charges?
It feels to me that the obstruction only works to de-facto legalise Trumpian obstruction of investigations into your own wrongdoing if the DoJ _allows_ it to work. If the DoJ had pulled the Trump axe out of the investigation’s back & let it try again _without_ sabotage or political interference, would Trump himself literally not be under indictment by now with the new Special Counsel occasionally throwing in additional charges as the investigations of attempts to damage & discredit Mueller’s probe complete?
You are EXACTLY the kind of relentlessly repetitive, serially run on verbose, commenter that should take this post to heart, NOT use it too once again regurgitate your same old bunk. I am tired of your sthicht.
Terribly sorry, old chap, that you’re tied up in a knot. Why you choose to come here to ventilate that obvious fact is beyond me. I’d suggest you GTFOI, and go complain about Boris.
Thinking of Trump specifically – is it possible they’re building a RICO case? The statute of limitations on his crimes won’t matter. It will just go to show his ongoing pattern of criminality. Am I crazy?
No, IT IS NEVER RICO. Don’t do that.
sksksksksksksk still laugh at “RICO is not a fucking frown emoji.”
Lol, I have been saying all this as long or longer than Ken, but nobody has ever said it better than he did in that post, it is truly magnificent.
I think what has been said in this post is applicable to a good number of commenters here who are relentlessly hand wringing, not just TV lawyers.
sorry bmaz, if my comment came across as hand wringing. I’m trying to say I can empathize with the worry, but I don’t spend my days publicly lamenting it (this comment not withstanding). It’s a balancing act – you can be inwardly concerned, but Marcy’s point is great, but outwardly you have to do something constructive. It’s the same advice that we gave ourselves during the 2020 election…dont just bitch, but do something that gets the vote out. Without a doubt, Marcy’s whole point of the post is providing that instruction manual. Here, write about this! But something has to be done by someone capable to get people to understand that their fears about nothing happening are not only not justified, but also, that their expectations about specific points that they handwring about are either a) being investigated or b) have been dealt with to the extent possible and here is why this didnt end up being indictable. I apologize if to some extent I appear to be aligning with the handwringers. I only honestly expressed that it is hard to be patient when you are fearful. It’s easy to get mad at people for human nature, but it’s like with little kids, you have to get them to understand why their fears aren’t particularly well grounded. It takes time. For some, it never happens. Anyway, I will try to be more constructive; unfortunately, I lack the knowledge to be able to do what I propose here, at least as far as the explainer goes.
No, I had not even seen your comment when I wrote what I did, it was in expectation of Haylock, Obsessed, and a few others showing up with the same old uninformed bunk. Sure enough Haylock has done exactly that with yet another 300 word repetition of his same old junk. It was not you. But I do urge all to take the gist of the post to heart.
Save your ammunition for the enemy, Bman, don’t shoot up a room full of friendlies.
We don’t need help, thanks.
Geoff: so are you also “Gee” above at 10:22 AM — I don’t see another comment by “Geoff” here.
Yes, the same person. Geoff/Gee please pick a handle and stick with it. We all do so that all know who they are talking to.
Too little attention has also been paid to the prosecutions of 2020 BLM protestors, thousands of which are still ongoing. News media had reported ad nauseum on the plight of Jan. 6 defendants having to fight to or not being able to go on vacation, or the impacts of Jan. 6 rioting on their massage or gym business, but the plights of 2020 protestors, not so much. As testament to the cowardice of MSM, It falls to Teen Vogue to do the heavy lifting: https://www.google.com/amp/s/www.teenvogue.com/story/black-lives-matter-protesters-felony-charges/amp
I personally never bought in to the civil asset forfeiture argument as paying for Mueller investigation. The civil asset forfeiture system, has been rife with abuse, and another weapon which has fallen heavily and most often on poor and minorities. Besides, Andrew Weissman’s “pardon-proof” civil asset forfeiture scheme proved him to be too clever for his own good. Mueller investigation was worth doing on its own accord and merits regardless of how its pots of money were sourced or recovered.
Note that most, if not all, of the forfeitures done in relation to the Mueller investigation were done via criminal resolution, not civil forfeiture. And, yes, it really did substantially offset the cost of the investigation whether you “buy it” or not.
Well, for $41m for Mueller’s efforts, plus the addition of downstream Durham effort, how well is Weissman’s civil asset forfeiture scheme going in paying for it?
Alright, let me say this one last time. It was NOT a “scheme”, it was perfectly by the book. Secondly, it was NOT civil forfeiture, it was almost all through criminal process. And, yes, they are quite different. And YES it has offset a substantial majority of the Mueller investigation, of which Durham was no longer part of after specific appointment as a special counsel. You are misrepresenting every facet of this.
Manafort was convicted of financial crimes, which commonly carry not only a prison sentence but also financial restitution.
That’s very different from civil forfeiture. If you are serious about reforming civil forfeiture, step one is not to confuse it with financial penalties assessed as part of a post-conviction criminal sentence.
A fundamental problem is pundits thinking criminal investigations = all investigations. DOJ is never going to do more than a subset of the investigations of January 6 because much of what happened wasn’t criminal.
For example, Acting Defense Secretary Christopher Miller’s horrendous and possibly intentional incompetence on and before 1/6 involved him bogging down the response in bureaucracy and process, but a criminal investigation almost certainly won’t touch how that happened.
Many of Trump’s personnel moves to install stooges and cronies were unlikely to involve any criminal activity — there were almost certainly abuses, but anything criminal would be the tip of the iceberg of what happened.
Part of the responsibility for the non-criminal side of investigations falls to Congress, and there are things to blame them for, such as the speed of launching the 1/6 Commission.
But a lot of the issue also falls to the press. In addition to the issues like pardons and the Trump Org indictment which get left to wither in the press, they have done a terrible job covering what Congress has uncovered so far.
They get carried away with concern trolling over whether the Commission would have bipartisan membership, and once it did they decided it was an unimportant issue after all. They refuse to treat the substantive details coming from Congress as worth building a narrative, and then justify lack of coverage on the challenges of audiences in following their atomic-level coverage.
It’s never in DOJ’s ability to put the whole story of Trump’s assault on democracy together. That depends more than anywhere else on the press. But the pundits have decided, as always, to look elsewhere for blame.
Ashley Biden’s diary.
[You’ve got 12 approved comments under your belt here since March 2019. In that period of time it should have become clear we don’t tolerate what looks like propaganda. Dropping this comment here without any context looks like trolling, especially beneath a post asking TV lawyers to do better providing the public adequate context. Do better; let’s call this Warning Number 1. /~Rayne]
What in the world does that have to do with this post? Don’t just blurt out irrelevant and impertinent things.
I think it was the typo being pointed out.
#8 on EW’s list.
Oh, maybe! Though not sure that is a typo.
Ashley Biden was not stolen. It’s a typo.
Are you sure? Have you seen her lately?
Uncle! You win the internet for Friday . . .
In fairness to echodelta, I am the one that had that wrong.
I agree. (That commenter needed to include that part.)
It’s likely an effort at correcting the references in the piece to the “Theft of Ashley Biden”.
Thank you. Sorry for the confused response to the comment–I had left it out.
Very well stated constructively critical piece. I cannot think of any daily TV newscaster or newscast that could pull off even in part what you are describing. But I defer to you and others for suggestions.
I do strongly agree about your take on Barb McQuade and Joyce Vance.
Maybe a nightly or weekly hour long segment aligned on your points.
Would, say, a PBS Frontline be a decent venue for this?
I realize what I am asking is on a grander scale than reporters just focusing on the right things and doing so through their in-place outlets.
It’s a matter of editorial framing and priorities even more than the specifics of an individual story.
The classic example is how coverage of Clinton in 2016 was shaped by the decisions of editors and producers. They decided that policy didn’t matter. They put every personality trait under the microscope.. They decided that email would be the defining story. And they did all of this under a running narrative of questioning her trustworthiness.
What is missing from press coverage is not simply the isolated elements. If you dig hard enough, you’ll find a paragraph or even a whole story in most major outlets on the specific issues MW raises.
But what is missing is the framework. In 2016 over and over you would get framing in stories along the lines of “New accusations add to doubts about accuracy of Clinton disclosures.”
What is missing today is any meaningful framing of the GOP’s efforts to overthrow democracy and the rule of law. Each outrage is dealt with in isolation instead of a pattern.
Which means that headlines should read “GOP attacks on rule of law expand to school boards nationwide” instead of “School board protests in Florida continue for second week.”
Instsad of treating every 1/6 defendant’s plea as an isolated event, ledes should stress how convictions tie into networks and how those networks tie into the GOP.
Reporters and editors will lie and claim that there is no way to utilize this kind of truthful framing, but they create much bigger frameworks all of the time out of much skimpier evidence.
The reason they are hung up on the pace of prosecutions is because they don’t want to do the broader work they need to do, or take the responsibility for failing to properly use tools they misuse all the time.
You hit the nail on the head with your last paragraph. The news outlets seem to think that as long as they aren’t broadcasting outright lies, like the Trumpist networks are, that they’re doing the public a wonderful service. In the meantime, they commit lesser sins of omission and misdirection, sticking to repetition of easy stories and ignoring the overall darker issue. It’s similar to a police department drastically stepping up arrests of college students for possession of marijuana, while ignoring a rapid increase of gang-related killings.
McQuade and Vance are on MSNBC daily, frequently on Deadline White House with Nicolle Wallace, and Rachael later at nine. Then they bounce around along with Chuck Rosenberg on the other programs like Morning Joe and the one with Katie Tur, or Hallie Jackson. They are also occasionally on CNN though I don’t watch that as much. In fact I used to see Marcy there occasionally also, though not lately or I have missed it. Maybe the move has interfered with that or not as the case may be. But from my point of view I paid attention to her and that led to her book and here.
My take on all this is that the goal (hope, wish) is the survival of the rule of law. I think most of us here would agree on that. The law as explained in this post takes time and we have to let it take its course, though many would like to see it accelerated, and there is a danger the clock could run out and many are anxious that will happen. Indeed that may happen, and then we will not have the luxury of dealing with things as we wish it to be but we will have to deal with what Is. However that is still in the future, and patience is the order of the day for now. No one can accurately predict 2022 or even 2024, so they are goal posts of a sort that will indicate whether we have the ability to keep pursuing these inquiries or if they will be stymied by Republican control of house and Senate. Our best chance of doing that is in understanding what has gone on, EW is the place for that understanding.
This is such an outstanding, constructive piece. Thank you.
I think you describe my (and I suspect many others) existential angst pretty well: “The threat to democracy is grave.” America turns out to be a very different place than I once believed it to be — I even naively thought the spell might break after the election. I was wrong, and now, like you (and I suspect many others), I also worry that Republicans have jerrymandered the taking of the House in the midterms and when they do, they will ‘shut every last bit of accountability down.” Justice delayed, as the saying goes, is justice denied, and I’m not confident American democracy recovers if we can’t find justice here…but as you point out, bypassing the hard work of due process is defeating democracy too…
So we find ourselves not just in a race, but in the position of needing to engage in the nearly impossible work of changing some perspectives. What you’ve provided here is a blueprint for how to approach the hard work of persuasion, not only by TV lawyers, but all of us.
Kinda wishing I could edit “jerrymandered’ about now… 😉
“Jerry Irwin Mander (born May 1, 1936) is an American activist and author, best known for his 1978 book, Four Arguments for the Elimination of Television. In a more recent book, The Capitalism Papers, Mander argues against capitalism as a sustainable and viable system on which to base an economy.”
He and Howard Gossage were behind the Scientific American paper airplane contest in the late 1960s©™allrightsreserved.
IANAL. But why isn’t DOJ doing anything to claw back Trump’s emoluments? And why haven’t blatant Hatch Act violations been charged yet?
Because “When you’re a celebrity, they let you do it”. Nothing illustrates the two levels of justice in this country more clearly, than watching TFG crimeing with impunity…
From the DOJ Office of Special Counsel’s Hatch Act webpage:
No one goes to prison for violating the Hatch Act, and as for financial penalties . . . most of the folks you are thinking about would laugh at a $1000 penalty.
The prime purpose of the Hatch Act is to keep career people from crossing the line into politics. If you are looking at a 40 year career in government service, a reduction in grade is a serious deterrent, to say nothing of losing your job completely. For folks who view their service as “come in for one administration, then hit the revolving door,” not so much.
Granted, the penalties aren’t so substantial, but why should folks like Kellyanne Conway be allowed to blow off the Hatch Act?
And why isn’t the emoluments issue being followed up?
The Supreme Court determined the emolument cases were moot once Trump was out of office. They were never going to be pursued criminally.
Is there even a criminal penalty on the books for emoluments violations?
Eh…..maybe….It is neither strong nor well defined, even if so. Here is a Just Security paper by Richard Painter. (keep in mind Painter is a good guy, but often kind of hyperbolic in a TV kind of way).
What I observe running through this site’s posts is the primacy of democratic process as the way to develop and maintain a legal process for operating a just, rules-based society. That process is what the Founders laid down for us.
I believe that many Americans conceive democracy as a state and democratic process a product of that state. Identification of American democracy with the current state of its society may seem harmless in less fraught times. The current, widespread perception that the state of our society is deteriorating has lead to disillusionment with institutions of democracy that are meant to execute policy developed through our democratic process. Instead of reinvigorating and utilizing American democratic process as the admittedly difficult means to achieving a better state, many, with a variety of agendas, denigrate and defy it. The inversion of process and state is a profound misunderstanding of what the Founders actually founded. In this model of democracy its object of faith is an inherently ephemeral state, or more to the point here, a desired outcome. It is as if American democracy were an object washed up on an alien shore and discovered by a cargo cult.
Here is what I think is missing from Marcy’s analysis and bmaz’s defense…there simply is no transparency, worse, there is no theater.
I see this as an ever to noted failure of Democrats in power and whatever confused messaging they may be putting forth. I have trouble criticizing the legal press when there is nothing to report on, there is no juice…oh, true Marcy lays this out so crystal, so clear…but that is for this audience here, sophisticated readers that care…but even us, and maybe especially me me a lawyer has trouble following the great and specific detail and necessities of federal criminal law.
It is a tough read, interesting and important true in a criminal law context, but for the general public, to paraphrase Gertrude Stein, “There is no There There.” It is difficult pay attention to a passing car that the dog won’t even chase.
What is missing is something like the Watergate Committee hearings, marching people in, live testimony in front of cameras and under oath, then…Democracy might be saved.
This would be theater! This would be something to write about, daily! Does anyone think for a moment that Mr. Trump would pass up such an opportunity to ring the bell on people he felt did something wrong?
What Marcy says is true, investigations take time, they really do, bmaz’s defenses are good, cogent and meaningful…but they really don’t touch on the Death of Democracy…I don’t want to say this is whistling in the wind, but it is close. Some of the Commentariate here sense this disconnect…as do I.
Best Wishes, Traveller
It appears that Select Committee public hearings are on the way. Hopefully they will have the effect we all desire.
A lot of truth here. I remember the Watergate hearings. I was 10 years old. It was fascinating. I also remember the song Haldeman Ehrlichman Mitchell and Dean. Indelibly etched in my memory. Yep the theater worked – even in a 10 year old with only one TV Channel- CBS.
Oh my…I’d completely forgotten that song, and I was 12-13 years old then.
YouTube has it: https://youtu.be/uK8Iowe83-A
Ah, the memories! I was maybe a year or two younger for those hearings…but glued to the old 13″ black and white portable set nonetheless.
Ah, the “Watergate Comedy Album” – it had some good stuff.
Sadly, a song for the current situation would be like Body Count’s “No Lives Matter”:
But the truth of the matter is, they don’t really give a f*ck about anybody
If you break this sh*t all the way down to the low f*cking dirty-*ss truth
This sh*t is ugly to the core
When it comes to the poor
No lives matter
This could be set to a video of Ahmaud Arbery being murdered, leading into Rittenhouse gunning people down with a military firearm, leading into the Charlottesville torch march, leading into the Capital attack, and finally clips of Trump and DeSantis spewing covid-19 disinformation while body bags are being loaded into mobile morgues.
Please don’t conflate congressional hearings with DOJ investigations. The theater of the Iran-Contra hearings led directly to the failure of DOJ prosecutions.
Similarly, what kind of “transparency” does an ongoing investigation call for? If investigators reveal exactly where they are in pursuing their case, they simultaneously reveal to the perpetrators whether they are in danger or not. Investigators would lose leverage in trying to negotiate plea bargains, because the person they are trying to flip would know much more about how much danger they were in.
Finally, until investigators are convinced who they actually have a case on, ill-conceived transparency can screw up the lives of others beyond recognition. See “Richard Jewell and the Olympic Park Bombing” for just one ugly example.
Liz Cheney put her future in the GOP on the line. It’s probably finished anyway considering the state of that party. Very hard to imagine any universe where she doesn’t have her moment in front of the nation. Waiting for indictments to trickle in over the next few years and a couple of legislative proposals were never likely in the cards for her. Hopefully the public hearings are deftly handled and a miracle occurs.
You could have left “in the GOP” out of that. There is no future for her in today’s GQP, and she probably realized that the pre-Trump GOP is gone by Election Day 2020. From her actions as a member of the committee, she seems to be trying to establish a new reputation as someone who doesn’t take bullshit, despite her previous recitation of Tea Party cant. She does have history and connections in states other than Wyoming, and it might be that she runs as an independent in another district.
Did you mean another *state*, Leoghann? There aren’t any other districts in Wyoming–it’s all one district. While they get two senators, just like California, the WY population is too small for districts plural.
Many are considering voting for Hageman, as, while she is malevolent and regressive (alike Cheney) she is nowhere near as competent, knowledgeable, or financially connected. In other words, another GQP performer.
The theater was intentional from what I could tell at the time. The quality of the Congressional investigation was quite different between Watergate and Iran-Contra. The failure to really clean house during Iran-Contra was one of the reasons I left the DP at the time. Not much of the garbage that the joint committee uncovered in its investigations, particularly about domestic influence of elections by bag money men was really explored much “since it falls outside the joint committee’s charter”. Ugh.
There hasn’t been theater for a couple very good reasons. The first is that there would be a brawl with the GOP before it could happen, which would the theater media would cover to the benefit of the GOP with as much gusto as the resulting gawdawful hearings, Exhibit A: The impeachment hearings; Exhibit B: the approval hearings for Kavanaugh and Coney Barrett; Exhibit C: any hearing with Jim Jordan, Paul Gosar, Louie
GossertGohmert, and the rest of the Trumpistas. We don’t need media’s reflexive both-sides-ism coverage to skew public perception as it has for years now.
The second is that a number of the unindicted co-conspirators are members of Congress. Until the investigations both House J6 and DOJ reach a point where indictments are imminent, any hearing which affords an opportunity to obstruct the investigation and subsequent likely indictments is counterproductive.
The problem I see is that we aren’t seeing anything — that’s not the same as lack of theater. We aren’t seeing what the right-wing base is seeing in their social media so we don’t know for certain whether public hearings constituting the theater you want will do any good. Until the left learns to organize to deal with that, theater could be absolutely useless or worse.
Louie’s last name is Gohmert (hence his nickname in Texas Democratic circles, Gomer), but you knew that.
Fracking autoincorrect, damn it. *editing*
Do you have concerns that Select Committee public hearings could turn into a circus like the cases you mentioned?
It appears pretty safe considering the membership: Bennie Thompson, Liz Cheney, Zoe Lofgren, Elaine Luria, Adam Schiff, Pete Aguilar, Stephanie Murphy, Jamie Raskin, and Adam Kinzinger.
I agree with Peterr’s concerns about possibly jeopardizing future prosecutions. That risk was built in from the beginning and I would assume Nancy Pelosi understood that. But, building a unified story that gets peoples’ attention can’t be a bad thing for the future of the country. Maybe that’s what Traveller007 had in mind. We’ve definitely had enough of the Trumpist lunatic brigade preening in front of cameras.
I think we’ll see the GOP caucus find a way to make trouble. Not unlike the stunts pulled during the Ukraine-quid pro quo hearings — surely you recall the Gaetz-led faction storming the SCIF?
Some of these GOPrs have skin in the game — they’re personally invested in stopping this from getting too close to them, especially since they can’t trust Trump to get their backs. Imprisonment, fines, and loss of power is ample incentive to create chaos, and in doing so, feed their base’s wretched desire to own the libs.
If they can’t trust Trump to have their backs, that sounds to me like a nice point of leverage for Thompson and the committee to use in some quiet backroom conversations that go something like this . . .
“Jim, we’ve received documents, phone logs, and other direct testimony that is pretty eye-opening. The more we uncover, the more apparent it is that more people are going to head to prison, and I’m not just talking about the ones who followed the Qanon Shaman and the Zip Tie Guy into the House and Senate chambers. I’m talking about organizers and funders of the insurrection, and the folks who enabled them. Here’s the tough part, Jim. It sure looks to me like you are up to your ears in some of what happened leading up to and on January 6th. I’m not asking for any kind of response or reply right now, but I suggest you go talk to your lawyer, and tell him or her that we are open to conversations about a cooperation deal. But the biggest thing to keep in mind about any kind of deal like that is this: the best deal goes to the first person to make one.”
Very true. The committee would be incredibly negligent if they’re unprepared for more obstructive events.
However, I can already hear Bennie Thompson telling America something to the effect of, “what is happening outside that door is exactly why we are here… even after Congress was attacked and blood spilled, we still have the same people showing no respect for the rule of law and representative democracy….”
Stellar work. Thorough, insightful essay on the state of play. Thank you.
So, in your post defending Garland, you write a whole damning argument about how horrible and damaging it is that Trump’s absurd-on-their-face pardon crimes have not been addressed. It’s like “stop picking on Merrick Garland” and then you pick on him yourself. Everything you complain about is something Garland should be doing something about and isn’t (or is secretly doing so slowly that it’ll never have the intended effect). So what you’re really saying is that the press and TV lawyers aren’t complaining as intelligently as you are, which is obviously true and a huge problem, but anybody who thinks this is a defense of Garland, including the poster, is missing the forest for the trees. If you think I’m wrong, remember I’ve been here since Firedoglake and I’ve been “here” since Watergate, and Watergate was the closest to justice of any of them and even then Ford killed it at the moment of truth. Expertise wins out over people like me every time … until the results come in … then results win, and I have spent a lifetime watching the results of America’s failed and corrupt system.
Whinging. You haz it.
Rayne is right, your comment is the epitome of whinging. And it is the same old whinge. The only extent to which Garland has been defended here is in response to repetitive extremely uninformed people like you that understand nothing of how criminal investigations and prosecutions, especially in extremely complex conspiracies work and proceed. It is consistently explained on this blog, and you simply ignore it and press on with the same old baloney. I not only think you are wrong, I know you are wrong, and it doesn’t matter how long you have been around. You are just repetitively caterwauling.
Perhaps your mistake was assuming I was defending Garland.
It is true that most of those complaining are affirmatively wrong abotu what has been done. But Garland is not the issue. Creating a climate where rule of law can survive is.
>Creating a climate where rule of law can survive is.
That would be lovely. How? In the meantime, the crooks have found creative ways to manipulate the system and triumph in every Emptywheel-calibre scandal since the Ford pardon. Garland & Co. can’t or won’t. The good guys lose every time. Do you honestly think this one will end differently?
By supporting anti-corruption efforts, the rule-of-law, and by not pigeonholing Dr. Wheeler’s efforts to do the same.
Plus, by making every GQP on the shows explain why they are not supporting the rule of law. Every time they try it’s a train wreck.
Thank you for this post. It is useful explanation for me as I was getting frustrated and worried as I follow the news.
Very good context.
Creating a climate where rule of law can survive is.
How? The Constitution doesn’t account for the use case when a corrupt president is elected, not by majority, but by minority, senate is in the hands of the party of the corrupt president, corrupt president corrupts it’s party, then the AG installed (Bill Bar) is a political hack.
There is no remedy in the constitution for handling an AG that is willing to advance a climate where the rule of law cannot survive.
Unless we always elect democrats in all chambers …, which is not possible in a climate of manufactured polarization, outrage.
I do believe the electorate is in democrats favor, but the Fox News and others are making it look like we are at 50/50.
I think that the Garland DOJ has to be really careful. Doing everything “by the book”. When this criminal gang of cartoon villains take over Congress again, we have to know that they will impeach Joe Biden for some made up bullshit. They are already talking about paybacks. So I don’t know, but I suspect that the DOJ is being very careful where they step. Plus they probably had to search for all kinds evidence that had been hidden in the plant pots, and “lost” behind filing cabinets. Maybe not literally, but you know what I mean.
Garland will want to make sure that he does everything the right way. One day when he isn’t AG any longer, they will come after him if he indicts Glorious Leader. I want to see the entire Band Of Grifters spend decades in jail. But I want it done the right way.
I think you are both overplaying and underplaying what is going on here. Folks like Garland know that they will be out on their ear and in lots of trouble if these bozos get back in power and further erase the ability of the courts and the Bill of Rights, etc, etc, to protect the average citizen. I remind you (and others who think Garland might not be partisan in this matter) that Garland was the Supreme Court nominee that was held up by Moscow Mitch prior to Trump’s being elected to the Presidency. To claim that folks like Garland aren’t hyper aware of the dangers to our democracy that the folks involved in the Big Lie is ludicrous on its face IMO.
Marcy you are too intelligent to become an apologist for incompetent/unwilling bureaucrats. Yes investigations take time. But there is one investigation that is already finished: Mueller found many instances of obstruction of justice that just need some cojones from Garland to prosecute them. Nobody is making the claim that if Trump is convicted the democracy will be saved. The battle to save democracy is an eternal one.
This is ludicrous and bogus. Nobody here is being “an apologist for incompetent/unwilling bureaucrats” and it is absurd for you to make that allegation. What has consistently been done here is explanation of how the process works, and why it does take time. And, as has also been repeatedly explained, simply charging up things from the Mueller report is not anywhere near so easy or surefire as people like you blithely make it out to be. And, furthermore, the Mueller report is nowhere near a ready to go charging document. This constant refrain is getting tedious.
>simply charging up things from the Mueller report is not anywhere near so easy or surefire as people like you blithely make it out to be.
You are entitled to your opinion but in the end it is just your opinion.1027 former federal prosecutors who probably know more and better than you believe that the conduct of President Trump described in Special Counsel Robert Mueller’s report would result in multiple felony charges for obstruction of justice.
Lol, sure thing there there two time commenter! I don’t know who all the people who signed that letter are, and, honestly do not care, online letters and petitions like that are not worth a bucket of spit. They are cheap, ridiculous and made to influence clowns that don’t know what they are doing.
And, will I take my judgment over those chuckleheads? Yes. How many felony criminal jury trials, especially on complex conspiracies, have you done?? I bet zero. How many do you think any one or two of your vaunted 1027 have done? Lol.
By the way, this is not your second comment, is it? In fact, it is your fourth under three different screen names. We do not allow such sock puppeting here. If you are to return, stick to the latest one from now on so that people here know exactly who they are dealing with. It is the least you can do.
The people that signed that letter are some of the most accomplished professionals that have ever worked for DOJ. Check their years of service.Check their title, and then go and calculate the criminal jury trials they have done.Comeback and report the number. Also next time post under your real name here, like those federal prosecutors did in that letter and let us judge who is the chuckle head.
https :// airtable .com /shrZ3dJWgziXNqScg/tblOfGdhUbL5p1uGu
Yes i have used three different names under this IP. Every time that i have deleted the cookies and forgot the username i have used a new one.The number of my comments is irrelevant to what we are discussing here.
[Your credibility rests on your body of comments and interactions here. Having used three usernames you already look like a sockpuppet. The people who contribute and moderate here under pseuds have used the same ones for over a decade and they’re known to the site’s owner/operator. Figure out how not to sockpuppet — that’s on you, everyone else has this mastered under our #commentpolicy — and recognize that policing what is written here doesn’t fly. Please also note the link you’ve posted in this comment has been ‘broken’ with blank spaces to prevent accidental clickthrough by community members since airtable(.)com is not a familiar site and should be used by members with extreme caution. /~Rayne]
Lol, you do not even have the presence of mind to keep your screen name consistent, yet are going to lecture me based on some asinine internet petition/letter? Hahahaha. I do not need to report jack squat back to you. Get lost.
The prosecutors’ letter you cite was written to Bill Barr, three months after his confirmation as USAG. As most of us expected, but apparently your vaunted spidey sense failed to notice, it had no effect on Barr or his decisions. None. It has very little context in the current situation, especially given the DOJ’s situation, playing catch-up from Barr’s inaction, and repairing the damage he and his flunkies did to numerous investigations.
What Airtable says it does:
Airtable is a low-code platform for building collaborative apps. Customize your workflow, collaborate, and achieve ambitious outcomes. Get started for free.
What Wiki says about it:
Airtable is a cloud collaboration service headquartered in San Francisco. It was founded in 2012 by Howie Liu, Andrew Ofstad, and Emmett Nicholas. Airtable is a spreadsheet-database hybrid, with the features of a database but applied to a spreadsheet.
Boy, if some folks think the 1/6 investigations are taking too much time just wait until the explosion of decentralized criminal and civil disorder should, hypothetically, the Garland DOJ produce indictments on Trump’s Mueller-documented obstruction tomorrow.
Has it occurred to anyone that besides (wrt 1/6 specifically) working their way up, through, and around chains, that DOJ might also need make sure Trumpist footsoldiers go through some things esp. at the level of organized groups?
I am not one to suggest a fear- (of-narcissists-) based posture; instead, this is a huge tactical consideration: the justice system hasn’t even gathered all of the 1/6-er violent lot, much less shown consequences for same to society (and further less, had that all sink in). [And this leaves out broader, confluent-compounding cultural issues, but let’s keep it to courts-based justice for the moment.]
Really truly think about what would occur throughout America in our local spaces — fueled by diffuse domestic terror group members and day-LARPers — should this type of Trump indictment “drop.”
[As for my opinion: that *all of it* was not promptly punished — not just via legal action but more importantly via social leveling, ostracism, and such — is part of why we are in the current mess. So to those who say now that we can’t indict our way out of this I would add that in our current state we must also do so strategically.]
Throughout the Trump era, leverage and the threat of legal consequences has worked (even, especially, on Trump, but also with lower-level actors). That may be hard to appreciate in the slide, but would appear to full, devastating relief should we hand it away. Let’s not give them nothing to lose while we give away our threads of control.
That’s why EW’s focus on media-prominent legals experts’ framing — see also BobCon’s press comments generally — is so important (besides the endless smidges- and- pots-o-gold that are funding all this, which EW also addresses).
[Lighten up] Francis is buying all the guns: new Rutgers study on the relative flood of jumpy, inexperienced gun buyers:
Recent gun buyers are warier and have less impulse control than other firearm owners, Rutgers study finds
Flip side, this made me cry (occasioned by a related aspect of the maga sickness):
[Pivoting topics from the bottom of that last thread, which had included updates re search for the shooter’s parents]
They got the Crumbleys:
That boy was begging to be loved with boundaries…so utterly UGH
Indeed, just like the Affluenza kid (Ethan Crouch) who is apparently not doing so well. It might have been DKos, but one of my usual rounds had an article about Crouch, Zimmerman and our local Stanford kid who were able to game the system one way or another. None of them are doing well, and Rittenhouse’s removal from ASU’s program is another example.
Note, Rittenhouse was not removed by ASU, he was not currently enrolled at the time of the verdict. And ASU has issued a very clear statement that they do not consider criminal history for online students, so it appears that they would be fine with him resuming studies.
How long until the students get angry?
Who cares? Students do not get to set admission bans.
Those 1027 prosecutors may be correct on the face of it in the simplest terms. But what are the counterintelligence repercussions to charging Trump with obstruction? They can’t say they know, nor can they outline specifics in geopolitics since Trump’s exit from the White House which may have further complicated counterintelligence implications.
EW, thanks for this helpful criticism and list of good suggestions.
Errata query— Is this correct? “to rein him him” Or did you mean “to rein him in”?
Is the DofJ the right tool and are prosecutions the right method to dismantle a political movement that seeks a non majoritarian election result? Since they have millions of supporters, and are functioning basically under rules of war in which deception and violence are permissible, can the criminal law deal with that? If DofJ prosecuted everyone the whingers want prosecuted, Fox E-news, would still be publishing their propaganda. The DofJ isn’t going to prosecute 20 to 30M ardent supporters of minority rule.
The issues will have to be settled politically. And that’s when the crisis presents the choice of defending every single constitutional provision, or letting some protections go, to save the democratic framework?
Reason and morality have already given way to fanaticism. Some of the fanatics committed crimes, but there are millions more.
Government officials swear to defend the Constitution. If we don’t defend it, it ceases to be the foundation of government and laws.
You are advocating a struggle within the bounds of the Constitution. But the other side is willing to use lies and violence. Its improbable, in my view, that the criminal prosecutions will have much impact on the other side, even if successful. Some other strategy will have to be deployed.
And most of the defenses admit the limited power for the Department of Justice.
So you basically do not believe in the Constitution and the rule-of-law sufficiently to actually try to use it then?
Speaking for myself only, I’m not willing to play compromise with my Constitutional rights. Short-term decisions on which protections are important, and which ones can be “safely” sacrificed to a bunch of brain-dead fascists and their evil overlords can only turn out badly.
As far as whether the criminal justice system is “the right method to dismantle a political movement” that seeks a hamfisted minority rule, it seems to be the only really acceptable option. Assassination has been out since the Sixties.
Regardless of my minor disagreements, Marcy, I have to thank you for a very intelligent post. I will critique further pundit-opinions with your points in mind. Very nice.
I really appreciate all of the time and diligence Dr Wheeler put into explaining the current dilemma our democracy faces, how our current government is dealing with investigating criminal behaviors, and how the media could better explain the process to us citizens.
Personally (IANAL), I prefer a slower process, where each person who participated in these anti-democracy criminal activities knows that they are being pursued and the next knock on their door may be their reckoning with the law, someday.
But, the crux of the situation may be as Dr Wheeler says on Twitter: “I mean, US politics started to go to hell with the rise of Fox. And perhaps the fact that local media has died and the functional equivalent of an authoritarian propaganda has replaced it explains what has become of US democracy.”
I would like to believe uncoordinated “neutral media” can overcome Fox propaganda, but my old alias Worried would have his doubts.
I come here to take a long, deep breath of grounded sanity. What an amazing post. Reading EW’s blog requires slowing down long enough to take in the details that actually define a situation. What a respite from the hyped-up, short-attention-span, stimulation-addicted media world. I mean, the world right now is scaring the bejesus out of me, and the most scary part is that the most important things, the absolutely critical things, are not being discussed in any way that could lead to fruitful action. Thank you for the clarity. It helps me feel more sane even though I hold out zero hope that any television personalities will in any way start reflecting back to us the world as it actually exists.
Your comment about the state of the current “media world” reminds me of an Edith Wharton short story, “The Reckoning”, in which one of the characters is a popular public lecturer and, “… had drawn about him an eager following of the mentally unemployed–those who, as he had once phrased it, liked to have their brain food cut up for them.”
This is a wonderful post, Marcy. Not only have you further outlined a problem that you’ve continued to post about, you’ve suggested several solutions–not for the media, or the political parties, but for each of us as citizens (or social media commenters). As concerns public pressure items, I’ll suggest one more. As Badger Robert touched on, above, the fact that there has existed one cable news network that is actually devoted to GOP/Tea Party/Trump/GQP propaganda, which has now morphed into three networks, trying to outdo one another in fealty to the Orange Traitor, I believe our only path forward is to reinstate the Fairness Doctrine, in revised form to fit today’s current communications modes. And that’s only going to come from _strong_ public pressure.
On a completely different tack, the Houston Chronicle reminded me that yesterday (02 December) was the twentieth anniversary of the bankruptcy and final collapse of Enron. I had several family members involved with that, on both sides and in different capacities, from a cousin who had been in their accounting section, to an aunt on the Houston City Council who suddenly had a very expensive baseball stadium with a very unpopular name. As a result, I followed the entire arc closely. One thing I remember is that there were many people who first said “Ken Lay is a good ol’ boy, who has been very generous to his home city and state, but who, one by one, became detractors as more and more information became public. We should hope that can happen with our current political situation.
Thinking about the whole debacle, and the complicated legal and investigative issues it presented, I did some research. I believe it has bearing on the issue of the investigation of the whole insurrection mess, in comparison. The FBI investigation officially began on the day of the bankruptcy, 02 December 2001. The first indictments of major players, including Ken Lay and Jeffrey Skilling, occurred in July 2004. Their trials commenced on 30 January 2006, and it took four months for guilty verdicts to be returned. Lay’s defense was that there was a conspiracy to ruin him, which included the news media (sound familiar?). Sentencing was not scheduled until September of that year, then was postponed for six weeks. (Ken Lay had the temerity to die of a heart attack in early July, thereby avoiding earthly punishment.) Aside from the SEC investigation, which was separate, there were ten FBI agents in the Houston field office who worked full-time on the case, along with four forensic accountants, and “numerous” other agents in Washington who assisted. This is from an excellent piece from Houston Public Radio. https://www.houstonpublicmedia.org/articles/news/2018/05/02/282880/retired-fbi-agent-in-charge-of-enron-investigation-keeps-the-case-alive/
If we take the Enron case as a benchmark, the first major indictments on the seditionist conspiracy wouldn’t occur until August 2024. The trials would begin eighteen months later, in February 2026. So perhaps Merrick Garland isn’t the compromised, lazy bureaucrat several “obsessed” folks here make him out to be.
Your discussion of the process is very intelligent. However, the Enron investigators didn’t have a deadline – if Biden doesn’t win the 2024 election the DOJ won’t have six years. The bottom line here is that they need to wrap this up and be ready to start trials of all the major players by early 2024. Ideally they will at least indict a couple major players by the time the 2022 elections start.
This is wrongheaded thinking. The political considerations are irrelevant. It should proceed appropriately under DOJ guidelines and considerations only.
If the DOJ (and the House J6) gets adequate breathing room, they may be able to do that. But if they have to expend a butt load of time and resources over the next 6 months on justifications for their work rather than the investigations, they won’t be able to finish the job before 2024.
I think the practical considerations are very relevant, because in 2025 I want to still be living in a Republic – and I don’t see major obstacles to giving Mark Meadows a very fair trail in January of 2024.
If due process lends that, fine. If not, political considerations should never control.
I would not say “political” but “practical.” In my mind there are two possible evils and their effects must be balanced against each other.
The first possible evil is that we allow unfair trials. The second possible evil is that slow/poor work by prosecutors allows someone to pull off a coup in 2024. I understand that you have a large personal stake in the legal system, but you might consider what happens in the days and months following a coup – I’m guessing that the end result is a lot of unnecessary deaths and the destruction of rights for any number of groups who currently have rights.
I think the second evil leaves more bodies in the streets, and the first may allow more erosion to our justice system. My compromise between these two moral imperatives is that I want the last trial related to these issues to start by February 1st of 2024. We’re mostly discussing white men with somewhat grifty public-service records, and they’ll have very good lawyers. They know they can expect to be indicted, and they’ve got all the time from Jan 6th of 2021 to Feb 1st of 2024 to get due process, not to mention whatever due process they can wring from their actual trials.
I’m far more worried about the Republic than I am about Roger Stone.
Not “ideally…by the time the 2022 elections start.”
If they don’t produce indictments of at least a couple of folks within 1-2 degrees of Trump by July, we could see a GOP-led House trash everything the way they damaged Clinton with Benghazi. Imagine DOJ personnel testifying for 11 hours at a pop with some of the GOP’s worst mouth-breathers baying like fox hounds over cable and broadcast. Obstruction of justice out in the open, undeterred.
This is why it’s so goddamned essential TV lawyers AND the people who are hosting and querying them do a better job RTFN instead of whinging about Garland. They’re currently enabling the worst outcomes.
Exactly on point and fine research on Enron.
Wasn’t it Lay to Skillings to Arthur Anderson for the double play?
20 years later, Skillings is back in the energy business, companies are still fucking around with their finances and trying to bamboozle the SEC.
Could our democracy be heading for a “Minsky Moment” when we suddenly wise up to the unsustainability of our Republic, causing a collapse into a “civil war”
We can rename Minute Maid Park as the “Big Lie” Stadium
Yes, Skilling was released in early 2019, and was fundraising online for another oil trading platform by the middle of last year. He’s an alumnus of McKinsey, so he’s got scamming in his blood. The really infuriating thing about that case for me is how Linda Lay managed to completely avoid prosecution, although she traded half a million shares of Enron two days before their financial troubles were first announced. No one believed that was a coincidence.
As far as Minute Maid Stadium’s name is concerned, the original idea was to call it The Ballpark at Union Station, because it’s attached to the historic 1911 Union Station in downtown Houston (hence all the train symbolism). But Ken Lay insisted on naming rights as a condition of his “gift” of millions, most of which didn’t pan out.
The Fairness Doctrine! Thanks, Leoghann, for bringing this up, but I want to put a point on it. I agree with Marcy’s tweet about Fox News, but the demise of the Fairness Doctrine broke down a door to those like Morton Downey Jr. and Rush Limbaugh. They made the Fox model seem rational–rational enough for airport and doctors’ waiting room TV screens everywhere.
Deza Trap Ease
We float to err with greatest of ease,
skills of those who shoot the breeze,
We may be part of the deza trap ease,
That’s how we click, bait and hook.
We can mine the Q’s & P’s,
and recite the ACB’s,
reflect on a klan’s diocese,
That’s how we click, bait & hook,
If we’re paid some fancy fees,
we can do our best to squeeze
out some flippant expertise,
That’s how we click, bait & hook.
As for the rule of law’s trustees,
ratings are the only degrees
that we feel compelled to appease,
That’s how we click, bait & hook.
Democracy smiles and says cheese,
with a selfie for a tease,
The more it looks the less it sees,
That’s how we click, bait & hook.
We float to err with greatest of ease,
skills of those who shoot the breeze,
We may be part of the deza trap ease,
That’s how we click, bait and hook,
“1928 Themola London Pianola – The Man On The Flying Trapeze”
Your title alone is just **muah-kiss** perfecto for days [/dez/dais]. But wait there’s more!
Separately: “Omicron” gives me “Kodachrome” and I thought of you, wondered if there was anything you could do with it. Then I re-recognized that Kodachrome is a really fucked up song!
Really liked this one, SL!
SL, I love this rhyme scheme (“scheme” in its best sense). I wish I had thought of it, but I often feel that way about your compositions. And ending each stanza with that hard consonant, “hook,” gives the whole thing a kick in the teeth sound that’s awesome. I’d love to hear it read out loud. EW Poetry Slam!
All points very spot on in article.
I am assuming they are just letting the Durham theater go on until it attempts to prosecute, then unless someone like Rao gets it, it will be easily dismissed, and DoJ can say it wasn’t putting political pressure on Durham.
There is another post you put up on twitter tho, “specifying the differences between how 1512c2 is different from other parts of the statute. Here’s how Nestler distinguishes from 1512d1, which Friedrich seems to think should be used instead.” (cant paste from the transcript)
Those 1512 sections sure look like an easy slam dunk to anyone encouraging folks to leave the Ellipsis, and go down and interfere with a scheduled govt proceeding. Didn’t multiple folks specifically say that they were all in the chambers doing the elector cert? Didn’t all the folk who showed up early to the East side? know, and discuss that they were there to interfere with the EC cert?
There is nothing there that is an “easy slam dunk”.
Thank you, Dr. Wheeler, for once again laying things out like a fresh change of clothing. Also, thanks to bmaz and Rayne and others for keeping the crowd kind-of in line. The exchanges are probably irritating to you but helpful for those who come to learn.
I don’t know Dr. Wheeler’s job. I don’t know AG Garland’s job. I just know mine.
My job is keeping up with the whitefish/tulibee netting season in Northern Minnesota. I check nets every morning and every night. Sometimes a Northern pike swims into the net and gorges underwater. When that happens there is the net out of the water, a fair amount of untangling time that “produces nothing”. No one but me knows how the season is going. No one but me knows what’s in the freezer.
For now, netting season is still on, as it is for Dr. Wheeler and AG Garland.
Cheers and good wishes to all!
What happens to the Northern Pike in the nets? I’ve had a pike/Muskie obsession since I was very young and still can spend hours in a kayak staring into the water in search of one. When I say obsession I mean my first published story was about Walleye fishing (a totally different thing) but included pike quests too. Your post fascinated me.
I agree with you about Dr. Wheeler’s amazing post. How does your perspective make you think about these things?
Ahhh, Ginevra, obsessions with wild animals are good to have and feed. A seed has been planted.
Well, first off, the pike (Northern or walleye) are game fish so they get released. Even if dead. Sometimes the tangle is so bad, if its a big one (5, 10, 20 lbs.) you haul all 100 feet into the boat/canoe and work it out on shore. Maybe do some cutting and repairing.
A netting friend of mine once dropped a huge Lake Trout back into a lake, after hesitating a bit. A few days later a game warden stopped at his coffee table, “Hey Norm. How big do you think that Lake Trout was, anyway?” Then he winked.
I posted the story here because I was frustrated with the flow of information and supporting comments getting thrown off track, looking at a way to turn on some light for the whingers. I can’t out-argue them like bmaz or Rayne because I don’t have a deep background. I am a listener and a student.
To me its a story about boundaries and trust in craftspeople who have already shown competence. Garland has his net. Marcy has hers. And I have mine. And when the season is over and the nets are drying we probably share around. Season isn’t over, though. Right?
Still bringing in steelhead, brown trout, whitefish. And ice fishing season has begun here — just waiting for lakes to freeze over. Let your net rest, bring your tip-ups. LOL
In the UP? Jim Harrison country?
Check the link I shared above — they’re still line fishing in all the lakes down state, catch-and-release 365 days for all species while some are limited by either lake or by season. They started ice fishing about two weeks ago in the UP.