Maybe Merrick Garland Already Made Some of the Decisions Everyone Thinks Are Pending?

Jack Goldsmith has weighed in on the debate over whether and if so how Trump should be charged in the NYT. He tries to capture three things that Merrick Garland might consider before charging Trump, which include:

  • Whether charging Trump would require a Special Counsel to avoid any conflict of interest stemming from Garland’s appointment by Joe Biden
  • Whether there’s enough evidence to convict the former President
  • Whether the national interest is served by such a prosecution

It’s a worthwhile piece that has, at least, generated some substantive discussion.

Garland might face a prosecutorial decision on something other than obstruction

But I wanted to throw out some things that might change the calculus on these three questions. First, Goldsmith’s column is premised on prosecuting Trump for crimes relating to January 6, focusing on 18 USC 1512(c)(2) and 18 USC 371.

The two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.

Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.

I think it’s not necessarily the case that the first prosecutorial decision Garland would face for Trump would be for one of these January 6 crimes, nor is it certain that these would be the January 6 charges he would be considering.

For example, Trump has potential criminal exposure that dates to before and after his time in the Presidency, which for various reasons might be easier to charge sooner. Trump has criminal exposure in Georgia for trying to cheat; if he were charged there, it might make it easier to charge him federally with an associated crime (including 18 USC 371). Similarly, other charges in relation to January 6 might be easier to charge, including aiding and abetting the violence, conspiring in violation of 18 USC 372 to intimidate Pence out of certifying the vote, or wire fraud in conjunction with the way he monetized the Big Lie.

It’d be one thing, after all, to charge Trump for pressuring Pence and another thing to charge him for trying to get Pence killed. The mens rea requirements for other charges would not give Trump the same invitation to pretend he really believed he had won. And with regards to Trump’s grift, even Laura Ingraham reacted negatively to the evidence of his Big Grift (though that may only because Republicans are seeking a way to clear the decks for Ron DeSantis).

So the prosecutorial decision that Garland might face would differ considerably based on what crime line prosecutors and US Attorneys were asking for approval to charge.

DOJ has already put in place measures to guard the independence of the investigation

Second, my impression is that Garland would view appointing a Special Counsel not only as unnecessary, but also counterproductive.

I wrote about why it would be counterproductive here. The short version of that is that if Trump committed a crime in conjunction with January 6, he did so in part by conspiring some subset of the 1,000 people who have already been charged or are being investigated now, in an investigation that upwards of 140 prosecutors have worked.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through.

If Trump were to be charged with conspiring with any number of those 1,000 people, then you’d want to use one of the grand juries that has already reviewed big chunks of this investigation. In my opinion, you’d want to make sure that Trump’s prosecution was charged via the same process that the thousand other alleged criminals involved that day were, in part to make it clear that his was the crime of a violent mob, not a backoffice presidential decision.

And even as it would be counterproductive to appoint a Special Counsel in this investigation, I think Garland has already taken steps to ensure the independence of the investigation. For starters, while Deputy Attorney General Lisa Monaco’s office has kept a very close watch on the investigation (many would say too close a watch), the prosecutorial decisions are being made out of DC US Attorney’s Office. And while Garland was confirmed with broad approval, Matthew Graves had no recorded opposition at his confirmation (though Ron Johnson held up the confirmation). No Special Counsel will have any more recorded buy-in from Republicans than the existing team does.

Meanwhile, among the things Garland’s DOJ did, at a moment when prosecutors may have realized a Trump prosecution was possible, was to set up a framework under which prosecutors could obtain sensitive information on Trump’s role in January 6 without any involvement from Joe Biden. The most important of those is the privilege review for January 6-related materials the January 6 Committee deems material to their investigation. It has gone like this:

  • Jan 6 Committee makes requests
  • The Archives identifies materials responsive to those requests
  • Biden reviews those materials and either waives privilege or withholds the information
  • Trump sues to withhold the materials but the Supreme Court denies his lawsuit
  • The Committee receives the materials

Once materials have been through that process, DOJ could simply serve a warrant on the Archives to obtain the same materials. Neither Trump nor Biden nor any of the rest of us would know (and this is consistent with things past investigations into Presidents have done, including the Mueller investigation). This process would bypass one of the problems Mueller had investigating Trump, in which Trump waived privilege for the investigation but not for any further use of it.

But DOJ would have various other means to obtain pertinent potentially privileged information, including:

  • Using a January 6-specific warrant to obtain materials seized from Rudy Giuliani in response to a warrant approved on Lisa Monaco’s first day in office; as I laid out here, the privilege review of those materials included all materials through the date of seizure
  • Obtain a warrant to Chapman University for all John Eastman emails that Judge David Carter approved to be turned over to the January 6 Committee
  • Review for an obstruction determination all the emails and texts sent over personal accounts that Mark Meadows had originally withheld from the Archives in violation of the Presidential Records Act
  • Review the already identified materials tied to the referral for stealing classified information from NARA
  • Obtain a January 6-specific warrant for materials already obtained from Sidney Powell in the fraud-related investigation into her grift

I wrote more about some of these methods here.

Obtaining sensitive information like this doesn’t eliminate the political sensitivities of an Attorney General appointed by Joe Biden making a prosecutorial decision regarding Trump. But it ensures that DOJ can entirely shield the investigation from any Biden involvement.

None of these things make the question easier. But they do suggest that Garland may have already put into place ways of addressing them.

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125 replies
  1. Makeitso says:

    The DOJ itself said this in 2020:

    For example, the standard Devitt and Blackmar jury instruction for public employee bribery, 18 U.S.C. § 201(b) and (c), provides: “An act is “corruptly” done, if done voluntarily and intentionally, and with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.”

    The motive to act “corruptly” is ordinarily a hope or expectation of either financial gain or other benefit to one’s self, or some aid or profit or benefit to another. Devitt E. and Blackmar C., 2 Federal Jury Practice and Instructions § 34.08 (1977), at 110; see also FIF Manual at 199.

    Maybe Garland has enough info for this?

    • bmaz says:

      Was there a clause in the ask saying any funds donated would be used “only” for lawyers and suits? My understanding is there is no such thing. Let’s look at another factor, who are the “victims” of the fraud? Has one solitary individual or organization come forward to identify as a victim? Again, my understanding there is not. Citing jury instructions from 1977 is not helpful in the least. The Supreme Court has opened nearly all this area of the law up with Enron, McDonnell and other cases. The slush fund would likely not only “not” be the easiest to pursue as to Trump, it is likely the hardest. People have to quit clothing wildly at straws and let DOJ do their job. Which would be easier if the dolts on the 1/6 Committee would get their heads out of their asses and share transcripts with the DOJ.

      • Makeitso says:

        That was from an update in 2020. Is 2020 too long ago?

        https://www.justice.gov/archives/jm/criminal-resource-manual-834-intent-parties

        I would also note that in the infamous SCOTUS decision in the McDonnell bribery case, the court stated:

        A jury could conclude, for example, that the official
        was attempting to pressure or advise another official on a pending
        matter. And if the official agreed to exert that pressure or give the
        advice in exchange for a thing of value, that would be illegal.

        • bmaz says:

          Eh, that would not apply. If Garland were to go after this weal tea only, he is a blithering idiot. This is not a good charge to pin any hopes on. It might as to the Georgia case, but DOJ is not looking at that, only a local county attorney is. And in spite of having an ongoing grand jury, and being a relatively simple case, there is not signs that much is really happening.

          • Makeitso says:

            The whole thing about Trump and prosecution reminds me of the Getty line:

            “If you owe the bank $100, that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.”

            • bmaz says:

              I thought Jack’s article was pretty good. The considerations he discussed really are critical and pretty earth shattering ones to contemplate. I know a lot of people disagree with me, but I don’t see it as they have a case likely to obtain conviction beyond a reasonable doubt…yet. Of course they are investigating Trump, they would have to be to understand and prosecute the 850 or so 1/6 cases. And, as Marcy noted, they have grand juries up to speed already. There is also a time issue because of all the material. DOJ had no problem going after Navarro, and have as to Manafort, Flynn and Stone previously, all people extremely close to Trump. If there was a time to have a special prosecutor, it was long ago, not now. And the howlers are going to claim bias no matter what. It is also not just what we know here, it is what can be admitted on the record in front of a jury, and argued successfully. As Jack noted, that is a far different thing with competent defense attorneys and a crafted opposing narrative. So, we shall see.

              • earlofhuntingdon says:

                There’s also that the range of lawyers willing to defend Trump is likely to stretch from A to B. He’s a lousy client, who never cooperates, shuts up, or pays his bills. The risk that Trump would commit perjury would be ever present.

                I suppose one or two might be competent, but the hiring process is not likely to be the same as if it were George H.W. Bush or Dick Cheney deciding which lawyers to hire.

                • bmaz says:

                  Yeah, but criminal defense lawyers are a different breed most of the time. And can ask for up front huge retainers. It would have to be huge for a deadbeat like Trump, but plenty of lawyers “would” do it under the right circumstances. Not sure if Trump is capable of that or not.

                • Rayne says:

                  LOL you just made me think of that blackout period when the public knew nothing after Deadeye Dick shot his buddy in the face while hunting. We only heard after everybody at the ranch figured out what the story would be. I wonder how much that cost in attorneys’ fees.

                • Rugger9 says:

                  Well, there’s Dick Deadeye on the HMS Pinafore to consider. At least it’s better than Barnacle Bill the sailor.

              • Rick Ryan says:

                “…I don’t see it as they have a case likely to obtain conviction beyond a reasonable doubt…yet.”

                I just thought it was worth noting that four of the people quoted (on record) in the Just Security piece linked by Doctor My Eyes below (and here for convenience) echo this sentiment.

                I have to think that means there is, at the very least, meaningful dissent on the matter within Garland’s office. And I have to think that Garland, or any non-hack AG, would not attempt to prosecute a case of this magnitude without broad support within the department, at least. That said, I’d be surprised if the public has seen all the evidence they have, and if more isn’t developed in the foreseeable future (there sure seem to be a lot of potentially-incriminating witnesses and documents that exist; cooperation and/or access may be iffier).

              • WilliamOckham says:

                The operative word there is “yet”. Everyone talks about this as if the next person to be indicted will be Trump. That’s not the way the world works. Before they can even think about indicting Trump they need to get some convictions and/or pleas of people around him. They need more admissible evidence. They need testimony from insiders. They need to start dismantling the coup infrastructure.

                I’m more concerned about the fact that I don’t see any progress towards Cleta Mitchell being indicted than I am about Trump.

                • bmaz says:

                  (Shrug), we shall see. It is stunning how so many pundits and experts are slathering over the “blockbuster” findings by the Committee. I have seen little at all like that. It is going to take one hell of a lot more than their cute little videos. And, despite the manure they are selling to a gullible press, no, the Committee has not really agreed to turn over their transcripts, just effectively said we will when we are done and as to the ones we want to. That Committee and their informercials are just garbage.

                  • Atomic Shadow says:

                    Well, “the manure they are selling to a gullible press” has helped put public support for charging God Emperor Trump at 58% according to a poll I saw today. I doubt that DOJ would really decide to change him without broad public support.

                    Plus, people I know many here in deeply red Utah are only beginning to understand what happened on J-6 because of this thing you call a dog and pony show.

                    Most people are not as deeply read in to details as you all are here. The work this committee is doing is very important to helping their understanding. It’s like Cliff Notes.

                    • bmaz says:

                      “Public support” should not factor into the decision whatsoever. Charging decisions, irrespective of what you personally think are not done by public polling, and never should be. Criminal justice should never operate at the uninformed whim of news polls. The “manure” statement was about their supposed justification for arrogantly refusing to share transcripts with DOJ. And that, in fact, is not helping anybody in the public, it is simply frustrating accountability via the only way possible, the DOJ. But thanks for misrepresenting what I said.

                    • punaise says:

                      Ah, c’mom, bmaz: you’ve been calling the whole thing manure, or words to that effect, from the get go, and the document sharing thing just added fuel to the fire (can’t say I disagree on that point). .

                      Agreed re polling / “public support”.

                      Flame on if you must!

                    • Atomic Shadow says:

                      Thanks for misrepresenting what I said too. I didn’t say that DOJ SHOULD only indict Trump if there was public support. Nor did I say that criminal justice should operate at the whim of an uninformed poll! I said I DOUBTED. Totally agree with BMAZ that it shouldn’t matter one little bit, but suspect that somehow it does. Isn’t that why people are wondering about it looking “political”?

                    • Rayne says:

                      The crimes were political. Remind anyone who says they worry the investigations and prosecution are political that the crimes themselves are political and the reason only low-level perps have been charged to date is that the investigations and prosecution are not political but following the law, as tedious as it is.

  2. Bobby Gladd says:

    Very nice assessment.

    So, authorities face three considerations in the aggregate, irrespective of specific offense(s): [1] Do not charge; [2] Charge but fail to convict, and; [3] Charge and convict.

    We can be pretty sure how Trump will react to each outcome. Among the broader political public, there will be varied constituencies of “howling outrage.” Most of which will be fairly lacking in any detail and evaluative nuance.

    Any indictments had better be bulletproof—knowing full well that it won’t mollify certain minds.

    • timbo says:

      Actually, it’s unlikely they’ll charge if they don’t convince themselves that they’ll get a conviction; easier under our Federal prosecution system to argue that one might lose a prosecution than win one.

  3. HW3 says:

    It’s frustrating that we can’t prosecute a sitting president because he’s immune and they are selling that we also can’t prosecute an ex president because it might be political.

    • bmaz says:

      Who are “they”? Just because things are not happening fast enough for you, doesn’t mean it cannot be done. Why wouldn’t DOJ be deliberate and make sure everything is lined up on what is arguably the biggest charging decision in history. Give the frustration a rest.

        • bmaz says:

          Then that is wrong, Jack never said it could not be done, nor even that it should not be done. He pointed out the issues, and to my eye did so quite well. These types of decisions are the province of professional prosecutorial discretion, not cheap ABC polls or internet outrage. Prosecutions should never be done because of the baying mobs.

          • Frank Anon says:

            From my point of view, it is upsetting that there would even be a consideration of whether a President would not be charged with a crime solely because he a) used to be the President or b) could set off anger and strife. This standard is not used elsewhere. Its disturbing enough that the notion that you cannot charge the President for any crime committed while in office has taken firm hold -I’d debate that an OLC memo is settled law – but its being presented as so. Public theatrics, and the press reaction to Mueller, did much to encase that impression

            • bmaz says:

              Within the the DOJ, the OLC memos (there are two) are well established. And, yes, prosecutors can decline prosecution on all kinds of grounds, including for the public interest and good. That is called prosecutorial discretion. I have no idea what they will do here, but that would be a legitimate exercise of discretion.

              • FishOutofWater says:

                It certainly would be legitimate within the internal rules of the DoJ. The problem is that the DoJ can be and has been organized to serve power. When an authoritarian administration’s like Trump’s gets to determine what the public interest is, we all have a problem.

                Trump showed how the OLC memo can be abused to let the president put himself above the law. The memo is a shining legal path to authoritarianism.

                [FYI — I know it’s been quite a while since you last commented but you did so as “FishOutofWater00” at the time. Please be sure to use the same username each time you comment. Thanks. /~Rayne]

                • bmaz says:

                  What a load of bunk. The memos have been in place a long time, and have a legitimate purpose, whether you personally like them or not. Unless or until they are withdrawn, yes, they do control. Not everything is about Trump.

                  • FishOutofWater00 says:

                    Yes, it has been over 5 years and my internet handle has been FishOutofWater since 2006 after I came back from Kauai to the mainland and began commenting at FDL, DK etc.

                    Thanks for the welcome back.

                    I profess no expertise on legal matters. I defer to my younger daughter and my wife on all things legal. I’m trained in the earth sciences and write about climate and the environment. I just want to thank Marcy for her fine reporting and analysis.

  4. Al Ostello says:

    Every individual, no matter how wealthy or powerful, is equally subject to the law.*

    *except for a serial law breaker such as Trump

    • Rayne says:

      Did you read either Marcy’s post or Goldsmith’s NYT op-ed? Your throwaway comment suggests otherwise. Goldsmith’s piece is an examination of the issues around question: “Should the United States indict former President Donald Trump?” This strongly implies Goldsmith doesn’t believe that question has yet been answered.

      Look, you fit the shoe you threw earlier this month: “…bitchy online critics don’t offer specific solutions, they just keep on bitching (incessantly).” All you are offering here in threads is bitching rather than any deeper analysis and discussion. Do better or find another outlet for your bitching.

      • J R in WV says:

        Oh, please, can’t we bitch and moan about the whole treacherous criminal mob in the West Wing of the White House during TFG’s reign of stupidity? If not here, where, then??

        No point in doing it at a news media site, they’ll just delete the bitchy comments right away. Anyway.

        I’m rethinking my viewpoint on Treason… it doesn’t mention a declared war in the Constitution, and it’s pretty clear that Russia is an enemy of the US, and working to our disadvantage. I know it would pain Bmaz for me to go there, but what the heck.

        Article III, Section 3, Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. [eta; my emphasis] No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

        Russia is an enemy of the US, and the former president certainly gave them “Aid and Comfort.” Although getting “two Witnesses to the came overt act” might be a challenge. Almost like they read that requirement, and said, no problem, never two witnesses.

        Thank all you empty wheel folks for all you do.!!.

        • bmaz says:

          Yeah, but that is what it requires in law. Lots of things are not in the Constitution. Did you read Steve’s article?? And, NO, Russia is very much NOT an enemy for consideration of treason. Not even close. Read the article, and please don’t make people here less informed. The requirements under law for treason are pretty clear, and pretty easily applied. It is just that 99% of what people try to jam into treason is, like here, not even close. Kirchner’s take was insane and wrong. Let’s try to get it right here.

        • Rayne says:

          Jesus fucking Christ on a goddamned pogo stick, knock it off with the bullshit arguments about treason! We do not have a formally declared state of war and with it an enemy, nor have we had one which makes any talk of treason wholly inapplicable. Further, the US doesn’t need inflammatory inaccurate shit talk like this about Russia when WWIII is entirely possible should Russia attack a NATO member.

          You have been here at this site long enough to know better. You’re also capable of looking up SEDITION and SEDITIOUS CONSPIRACY which are far more fitting and in the case of Oath Keepers and Proud Boys, already applicable and charged.

          Quit sucking up our valuable time and screen space with this crap. There’s a reason news sites pre-emptively block this nonsense; they have to pay to have bullshit arguments removed.

          A warning to any other bonehead thinking about discussing treason: I am this || close to adding “treason” as a auto-moderation term.

  5. jaango1 says:

    For latest public opinion polling over these past 100 weeks, none of the BigBoys in the MediaBiz, have yet to interview the over 8.000 Chicano Elected Officials, and writ large. Thus, listening or reading of any comprehensive analysis irritates me to no end regarding this latest White Guys Coup Plot. And yes, Mueller and Barr are included in this diatribe.

    Now, if Garland is smart, he will defiantly walk away from challenging the oncoming political mythology that is just sitting around the corner of the building. And as such. Chicano Elected Officials, when eventually polled, will conclude that any legal assault on Trump and his coterie of his coup cabal, need not occur.

    In closing, the GOP’s next presidential quest should include Trump, Pence and DeSantis, for starters. And these new pretenders of national political consequence, will fail big time. And therefore, Biden becomes a re-elected President.

    • Rayne says:

      I hear your concerns about the racism, but the perpetrators in question are overwhelmingly white which means we’ll see a lot of white people covered. I notice you didn’t mention the Chicano on the House January 6 Committee, Rep. Pete Aguilar who performed a sizeable portion of questioning during the last hearing. He’s also received time with national news outlets (though I can’t say how much coverage he’s received in Spanish-language TV/radio).

      Perhaps it’s on you to do more to point out this representation — a Chicano participating in this historic oversight committee — so that more of the Hispanic/Latinx community pay attention to these hearings. And perhaps the Hispanic/Latinx community needs to press other news outlets for more coverage.

      • jaango1 says:

        One Chicano Elected Official readily available out of over 8,000 doesn’t say much, when it comes to a sizable Democratic base that the GOP is desperate to capture.

        Perhaps, if the J6 Committee addressed the ‘concerns’ of Racial and Ethnics, from the standpoint of adding a ‘new’ session to the J6 overall effort.

        • Rayne says:

          That’s not how this works. The members of the House January 6 Committee are members of the House who were elected by constituents of a congressional district. This form of oversight is performed by Congress, not any independent group outside of Congress, and the oversight is focused on this mission outlined under Sec. 3 at the House J6 Committee’s About website.

          If you want more Chicanos and other Hispanic/Latinx representation in Congressional oversight, focus on helping them get elected and on getting their citizen supporters registered, educated about the candidates, and to the polls in November. That’s how this democracy works.

  6. WilliamOckham says:

    Jack Goldsmith is very, very wrong about his third question. If the DOJ believed that there was enough admissable evidence to convict Trump and then they failed to indict him, that would be the most heinous act of the DOJ ever, even surpassing the failure to prosecute grave breaches of the Geneva Conventions during the Bush Administration. Of course, Goldsmith didn’t really have a problem with that either, so I shouldn’t be surprised.

    • wetzel says:

      “even surpassing the failure to prosecute grave breaches of the Geneva Conventions during the Bush Administration”

      Thank you

    • Anonymouse says:

      I find it odd that the same school (Chapman Univ) is associated with both situations via its selected professors.

      • bmaz says:

        What two? Eastman is an easy answer, who else you talking about? Chapman is a right wing joint, and a lot of wing nuts come out of there, but never associated with Jack Goldsmith that I am aware of.

  7. TimB says:

    Zwei Seelen wohnen, Ach! in Garland’s Brust.
    Normally Merrick Garland doesn’t resemble Faust, but there are two huge forces, opposed to one another, in basic DOJ thinking about whether and how to prosecute TFG, so the “two souls” line applies. Soul 1 sees a pattern of attacks on the USA and on our rule of law. That’s not just the mob rule on 1/6, it is all the schemes to overturn the election and to protect the people who schemed. And it is not just the substance of the schemes, it is disrespect for courts and their rules shown not only by the ex pres. but by a large number of attorneys associated with him via filing nonsense lawsuits and motions, assertion of nonexistent privilege, playing for endless delay, etc. Soul 2 does not want either to undertake, nor to be seen to undertake, a political prosecution. Especially not to bring one and then, through getting an adverse decision, running out of time, etc., to give the Department a further black eye. The war between these two souls will lead to several different intermediate decisions (may have already, as emptywheel points out.) If they bring a case they will need to have evidence that makes a trial nearly a laydown. It has to be about serious charges proportionate to the harm of the whole pattern of conduct. (Wire fraud! Poof!) Such a case can be large, but it cannot be complicated. Such a case — my fellow liberals here please calm down for a minute — may not exist. Soul 1 is as pissed off as anyone here, and Soul 2 has profound caution. They remember that, while Faust thought he had two souls living in one chest, he had only one and at the end of the play he loses it in the bet with Mephistopheles. I am very glad that a) we have terrific people working at DOJ today and b) that none of them are me.

    • Rayne says:

      I’ve been disturbed by Barb McQuade’s suggestion that Mark Meadows be immunized by the House J6 Committee in order to obtain his testimony. The rest of the former prosecutors remarks aren’t surprising in any way, IMO but IANAL.

      • Doctor My Eyes says:

        Thanks, Rayne. I was quite surprised at what seemed a general belief that the evidence for conviction of Trump is fairly strong. This is not what I’m used to hearing from Bmaz. I also winced at the suggestion of immunizing Meadows, but as I’ve thought about it, letting Meadows walk to convict Trump seems like a big win for the future of the country. That is presuming his help would be defining. Problem is, he would likely be at least as weaselly as Manafort.

        • bmaz says:

          It “may” be, we shall see, but it is all a lot different against opposition in front of a judge and jury. And one single juror can hang the hold thing up. I very much understand why Garland and DOJ are being deliberate.

    • Ginevra diBenci says:

      Thank you for this link, Doctor. Especially in conjunction with the Goldsmith piece and Dr. Wheeler’s post, these takes gave me a sort of hold-your-horses insight (with detailed reasons) I found valuable. Things are starting to focus now.

  8. OldTulsaDude says:

    This, for want of a better phrase, “fascist problem” the world faces seem to me so much larger than the question of Donald J. Trump’s criminal exposure; would it were so simple. The inroads made by the far right in the recent French elections sent a chill through me. One would have hoped the Jan. 6th presentation from our House would have stifled the movement at least for a moment, yes, and even in Europe. That it did not, while red states continue to grow more extreme and more blatant does not bode well for the future of this republic, and I fear our apathy most of all.

    • Ewan says:

      What happened in France on the far right side is not a surprise at all. The participation was historically low, and there is no center left or center right candidates anymore, they all have joined Macron’s party. So it is : for the government (tricky after 5 years, and people have already done that 2 month ago) / for the new left spearheaded by Melenchon who makes very non palatable declarations (against police, for Putin) / for the far right (which has recast itself as ‘far right lite’ since a right of far right movement had emerged). In the deep red parts, going by the US color code, the far right won, since there was no establishment right wing candidate left.

  9. Silly but True says:

    Anything associated to the Pence pressure campaign is certain to run up against a large hurdle: Pence would be a defense witness hostile to prosecution.

    Despite everything that was done against him, Pence would absolutely have no inclination of supporting any prosecution that goes against Trump.

    Maybe the texts and emails are enough, and they can even trot out Marc Short to try to argue on behalf of Pence by proxy. But stack it up against the victim on the stand saying “Nah, nah. I wasn’t pressured guys. No pressure. No pressure” and it could be a tough sell.

  10. Arice says:

    I think Jack’s article is good but, by necessity of length, omitted a lot of other potential charges. There’s the Georgia election tampering that Marcy addressed. There’s wire fraud, which comes from using false and/or misleading emails and mailers to donate to Trump’s various entities, ie. “Legal defense fund” and his endless “10x match” solicitation emails claiming that “for a limited time your donation will be matched 10X!” Also I’m sure if you look at his various prizes like “win golf with President Trump if you donate” none of those prizes are ever actually awarded. I’m not a prosecutor, but I find it difficult to imagine the full force of the US government can’t find prosecutable offenses in all the things DJT has done. IMO it’s more a question of will and being willing to define that a case against him has a reasonable chance of succeeding. Federal juries require unanimous decision, so that’s a tough hill to climb. But Washington DC juries are not likely hotbeds of hardcore Trump fanatics.

    • bmaz says:

      The Georgia case is a state law case and has nothing to do with Garland and/or DOJ, Why would Jack have discussed that? The “wire fraud” case is the weakest possibly imaginable, and I explained why earlier. Very skeptical they are going to work that up at all. Same goes for the rest of your “fundraising” concerns.

      • Rayne says:

        There’s a state case, yes, but there may be a federal case which is not the same as the state case. I can’t find what I’m looking for but it’s something like conspiring to interfere with voters’ rights or pressuring an official/obstructing conduct of an election. Essentially in asking GA-SOS unlawfully for +10K more votes, Trump asked GA-SOS to interfere in the legitimate voters’ rights (who voted for Biden) by diluting their votes.

        • bmaz says:

          Eh, I very much doubt it. People’s rosy hopes for hog and wide DOJ will go are way overinflated. Little chance they mess with the Georgia facts if they are going after the bigger counts. And if they are “not” going after bigger counts, little chance they will mess with the call fact set.

        • Arice says:

          Agree with you, Rayne. BTW, I’m not arguing that any of these are the MOST likely. Just that while discussing what’s possible it makes sense to review all the significant possibilities. I know BMAZ thinks it a state crime, and there are state crimes in the Georgia incident but, also, abusing ones power as sitting president to threaten and coerce a public official to fraudulently change vote totals certainly violates https://www.law.cornell.edu/uscode/text/18/595. Here’s the relevant section of Trump’s entire call to the Georgia SOS where he flat out threatens them unless they do what he wants. Emphasis added is mine.

          “…which is totally illegal, it is more illegal for you than it is for them because, YOU KNOW WHAT THEY DID AND YOU’RE NOT REPORTING IT. That’s a criminal, THAT’S A CRIMINAL OFFENSE. And you can’t let that happen. THATS A BIG RISK TO YOU and to Ryan, your lawyer. …. And YOU CAN’T LET IT HAPPEN AND YOU ARE LETTING IT HAPPEN. You know, I mean, I’M NOTIFYING YOU that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.”

          • Rayne says:

            Thanks for that, 18 USC 595 was one of two I think was conflating. The other was 52 USC 10304 – Alteration of voting qualifications; procedure and appeal; purpose or effect of diminishing the ability of citizens to elect their preferred candidates. The latter is a civil or voting rights violation.

          • harpie says:

            Thanks for reminding me to reread that transcript before the Hearing today. Here’s a conversation from 1/3/21, the day after the call, when the recording came out:

            Ryan Goodman:
            https://twitter.com/rgoodlaw/status/1345810434138529792
            2:13 PM · Jan 3, 2021

            This caught my attention:

            Trump says: “Under law, you’re not allowed to give faulty election results.” As Trump: tries to induce and procure Georgia election officials to give faulty election results.

            Induce and procure = crimes under 18 USC 2.

            Marcy responds: https://twitter.com/emptywheel/status/1345810759213834241
            2:14 PM · Jan 3, 2021

            Trump has (in 2011, his spawn in 2016) in the past gotten away with campaign finance crimes by claiming he’s too stupid to know this is a crime.

            But he was citing law while committing the crime here.

            And he had at least two lawyers in the room.

            • harpie says:

              I wonder how likely it is that
              [“I’m not asking you Cleta, honestly”] MITCHELL will make an appearance in today’s audio/visual presentations.

            • harpie says:

              And EASTMAN tried to hide TRUMP doing that in an email:
              https://twitter.com/emptywheel/status/1534454627797712896
              4:37 AM · Jun 8, 2022

              John Eastman attempted to protect Trump bragging about the size of his campaign rallies under a claim of atty-client privilege. [screenshots] [link to decision]

              [pdf14/26 For five of the fifty-four documents, Dr. Eastman claims attorney-client privilege involving his representation of President Trump.78 Three of the five documents are news articles or photos from President Trump sent by his Executive Assistant to Dr. Eastman.79 Dr. Eastman does not explain how these seek legal advice. Although Dr. Eastman’s privilege log claims that the photo is President Trump’s “handwritten note re issues for anticipated litigation,” the note simply celebrates the size of President Trump’s campaign rallies.80 The other two documents discuss how to frame President Trump’s potential press statement on certifying alternate electors in swing states.81 These documents do not discuss any legal questions about the statement, but rather focus on framing. Because these five documents were not created for legal advice, they are not protected and the Court ORDERS them to be disclosed.

              But, this WAS one of their “arguments”: that his crowd sizes ALONE proved that there was election fraud.

              • harpie says:

                TRUMP: There’s nothing wroooooong
                (with flipping the state).
                There’s nothing wroooooong
                (gimme a break)

                Of course, there’s nothing really funny about it.

          • harpie says:

            Here’s the transcript:
            https://washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html

            Here’s the beginning of Marcy’s “live tweeting” of the call [from when the audio came out]
            [This is one her best ever, and that’s saying a lot.]:

            https://twitter.com/emptywheel/status/1345836103580995585
            3:55 PM · Jan 3, 2021

            gonna live tweet this.

            Mark Meadows explains at the beginning that Cleta is not attorney of record but she’s been involved.

            Trump (who lied abt his inauguration size) says he knows he won bc of rally size. […]

            • harpie says:

              EASTMAN called TRUMP’s claim
              an issue “for anticipated litigation,”
              https://twitter.com/emptywheel/status/1534454627797712896
              4:37 AM · Jun 8, 2022

              John Eastman attempted to protect Trump bragging about the size of his campaign rallies under a claim of atty-client privilege. [screenshots] [link to decision]

              From the decision:

              [pdf14/26 For five of the fifty-four documents, Dr. Eastman claims attorney-client privilege involving his representation of President Trump.78 Three of the five documents are news articles or photos from President Trump sent by his Executive Assistant to Dr. Eastman.79 Dr. Eastman does not explain how these seek legal advice. Although Dr. Eastman’s privilege log claims that the photo is President Trump’s “handwritten note re issues for anticipated litigation,” the note simply celebrates the size of President Trump’s campaign rallies.80 The other two documents discuss how to frame President Trump’s potential press statement on certifying alternate electors in swing states.81 These documents do not discuss any legal questions about the statement, but rather focus on framing. Because these five documents were not created for legal advice, they are not protected and the Court ORDERS them to be disclosed.

              But, this WAS one of their “arguments”: that his crowd sizes ALONE proved that there was election fraud.

              • harpie says:

                :-( Well, I messed up the formatting at the last second…there should be NO italics after
                “for anticipated litigation”

                [Fixed. :-) /~Rayne]

                • harpie says:

                  Yes, but did they actually believe this was a legitimate argument?

                  Or, did they KNOW better, but were cynically trying to make others believe it was [is?] a legitimate argument?

              • Rugger9 says:

                It appears Eastman is the latest patsy-du-jour. Individual-1 has already graciously bestowed the always coveted “never knew the guy” award for holding the bag.

            • Jimmy Anderson says:

              Just read Marcy’s “live tweet” of Trump’s perfect phone call to BR.
              Genius !
              And yet, so chilling to think that Jan 6 was also in the planning and still yet to unfold.
              Thanks for the link.

    • skau says:

      Friend was door-to-door successfully selling cell phone plans.
      Brochure read in part “100% company”.

      10X match could involve software checking that the name on the credit card matched the name given by the donor ten times. Or …

      • Arice says:

        That’s not what the emails said. They were clearly saying that if you gave $10 to Trump, someone else (unspecified) would “match” it with 10x that amount ($100).

  11. bmaz says:

    I’m going to interrupt this all for a second. It is a tweet thread from a longtime good friend of mine, Alex Little. It is the best feel good story you could hope to hear these days. Please take a look, you will not regret it. Read all the way to the end, there is one hell of a kicker. And, yes, Katie is back at home now.

    • joel fisher says:

      That’s such a great story, but it shows you to be such a softie that I feel like I should write something stupid–“Why hasn’t Garland charged Trump with a crime yet?” might fit the bill–so that you can respond and get back to the ass kicking administrator we–and by “we”, I mean, me–all fear.

    • Tom says:

      Great to see good things happen to good people. Nina will have a wonderful story to tell her grandchildren.

    • joel fisher says:

      That’s such a great story, but it shows you to be such a softie that I feel like I should write something stupid–“Why hasn’t Garland charged Trump with a crime yet?” might fit the bill–so that you can respond and get back to the ass kicker we–and by “we”, I mean, me–all fear.

      • Chetnolian says:

        Those who know Bmaz know he is a softie, its just that when he puts his Moderator hat on he expands, turns green etc…

        • Sandor says:

          Human emotions are so complicated. We can like BMAZ both because, and despite the fact that, he is an ass-kicking moderator.

          Sandor

    • John Paul Jones says:

      Well, you got me all teared up. Stories like that, I feel there’s still hope for the species, and then I reflect that the men of war are, after all, a minority of humans. Don Maclean has a great line in one of his songs – “The madmen who plunder this world for their gain have forgotten that no-one remembers their names.” Great, great story.

  12. Rick Ryan says:

    One thing Goldsmith doesn’t really address is political pressure coming from the House and political party (maybe, parties). The Jan. 6 Committee can say their purpose is to “investigate and report” all they want, but they wouldn’t be having these hearings (or issuing their ultimate report) if they weren’t intending to spur some concrete actions from the relevant bodies, including the DOJ. And more broadly, simply having them promotes a fervor (primarily in the Democrat base, of course, but it’s broader than that – 6 in 10 Americans, according to some recent poll) that the government needs to Do Something! about Trump and his cronies. (For the record, I share this sentiment.) And while there are other avenues for this, the DOJ is by far the most visible and the most powerful. To go through all this, to make all this public, and then not indict would be devastating, I think, for political motivation within the non-frother majority of the public. That in turn would make the likelihood of another Trump (or Trumpist) Presidency much more likely.

    It’s true that Garland (or any AG) should not consider the ‘baying mobs’ in making any prosecutorial decisions. I agree with this 100%. But realpolitik may not. And moreover, those same citizens do control the political fate of the House members on the committee – and the Senators who would hypothetically approve/not another term for Garland – so there is a path, albeit indirect, for public sentiment to exert some degree of real pressure on him and his office.

    Which is to say, in the end, he may have to weigh whether a doomed prosecution is preferable to no prosecution. And I don’t think there’s a clear answer there, as a pure practical matter.

    • DrDoom says:

      “Which is to say, in the end, he may have to weigh whether a doomed prosecution is preferable to no prosecution. And I don’t think there’s a clear answer there, as a pure practical matter.”

      IMO, this is an excellent point, and one whose importance is magnified in light of the Texas GOP’s plank that Biden was illegitimately elected. Choosing whether or not to prosecute the Big Lie’s principal beneficiary has huge implications for the upcoming elections. Choosing not to prosecute has political consequences of precisely the sort Faust/Garland’s 2nd soul wishes absolutely to sidestep, per TimB’s post above.

      I would argue that these developments tip the scales in favor of pursuing prosecution, even at the risk of having it fail. It is similar to TFG’s impeachments, necessary even if doomed to failure. The message that reliance on the law will NOT EVEN BE ATTEMPTED is far more consequential than failing to convince a jury that a crime was committed beyond a reasonable doubt. In the former case, there is no hope while in the latter one can believe that different facts or more able advocacy might prevail.

      • Troutwaxer says:

        This is an excellent point. Thank you. I would hope that the DOJ would use the same criteria to decide whether to prosecute Trump that they would use in deciding to prosecute Joe Sixpack – 90 percent probability of winning, or whatever their standard is.

        I suspect the big problem is that they won’t know what the chances are without climbing the ladder like with any other mob prosecution – until you’ve questioned Eastman or Alex Jones, for example, you have no idea how much really good evidence is available to you, and you can’t prosecute those guys until you’ve questioned the layer below them. The turtles stand atop elephants, who stand atop tigers, and so forth.

      • fb1848 says:

        I agree with you both, sort of. I don’t think the degree of “fervor” of popular opinion should factor in, but the need to somewhere draw a line should. We all know that Trump orchestrated a multi-pronged effort to overturn the election results and prevent the peaceful transfer of power. Is there a reasonably informed person who doubts that? Whether he can be found criminally liable beyond a shadow of a doubt according to existing statutes is more questionable. But why should the DOJ only indict if they’re sure they can get a slam-dunk conviction? Losing in court says that conspiring to overturn a presidential election is sedition but we failed to prove it to the standards required for criminal conviction in this instance. Americans will debate the jury decision and that will be good. Most importantly, it puts future despots on notice that such actions *can* result in criminal penalties. In contrast, not prosecuting because it’s not a slam dunk conviction signals to future despots that they have very wide latitude to attempt to subvert national elections with no fear of penalty.

  13. civil says:

    Relevant commentary on this general topic from Luppe Luppen (nycsouthpaw):
    https://www.nycsouthpaw.com/p/whats-really-stopping-a-trump-prosecution

    18 U.S. Code § 1515 says “As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” Section 1515 refers elsewhere to sections 1512 and 1513, and I’m baffled that it doesn’t define “corruptly” for those sections as well, either in the same way or in a different way. IANAL and it strikes me as strange to recognize that it needs to be defined but then only define it for a subset of the sections where it’s relevant.

  14. Badger Robert says:

    In my view the people that stayed in the Trump WH, or assisted in delaying LE response and National Guard response, after 12/15/2020 are culpable. The criminal prosecutions should be directed at them.
    Once William Barr said there was no substantive fraud, and quit, there was a strong implication that the 01/06 planning was probably a criminal conspiracy. Each person might have a different level of moral or criminal responsibility. But by then the fictional ideas offered to Trump’s fantasies were dangerous and illegal. To that extent I disagree with opinions offered here, that indicting and convicting such individuals is unimportant.
    I also disagree that the committee, in showing how little support there was among the VP’s attorneys for objections to a routine EC count, wasn’t doing important work for the public. Even VP Pence, who kept his mouth quiet for December is culpable, even though he did quit the conspiracy privately.
    Everyone who stayed and kept the WH running was part of an illegal attempt to nullify an election after December 15.
    But that has never been discussed in the media, so I must be alone in that view.

    • bmaz says:

      Just no, this is absurd hyperbole.

      “Everyone who stayed and kept the WH running was part of an illegal attempt to nullify an election after December 15.”

      Good grief, no, people are just getting ridiculous. Please try to have some perspective. Please.

      • Badger Robert says:

        After 12/15 they were all covering up for then President Trump. They were not all feeding him EC nonsense, that is true. But neither were they quitting and informing responsible people that the protective response was being disabled. The cover up did not last as long as the Watergate cover-up. But the danger it created was much greater than in that previous crisis.
        I didn’t expect you to agree and it doesn’t cause me to change my mind.

        • Troutwaxer says:

          IANAL, but I think you’re suggesting that they’re all guilty of misprison of a felony or something similar. Not sure I buy it, particularly when very legit whistleblowers are prosecuted regularly – how can you expect people to come forward when the one’s who do quickly develop a nasty case of being arrested and charged with awful crimes?

          • timbo says:

            Buy it? Why even try to at all? The janitorial staff at the WH were suddenly part of the conspiracy because they work in the building? The whole idea is ludicrous on its face.

  15. Cosmo Le Cat says:

    Of course Marcy’s article is supreme in my view, but the Just Security article linked by Doctor My Eyes is also terrific. The email dated January 6 from Eastman to Pence’s attorney exposing that Trump was informed the plan was not lawful is of monumental importance towards indicting Trump.

    I am also a proponent of immunity/plea deals to get critical testimony to indict the alpha boss. History will vividly recall Trump’s indictment as long as this country survives, hopefully many centuries after Eastman, Meadows and the other Scooter Libbies have been forgotten. .

    • Rayne says:

      If this was Watergate all over again I’d have no problems with considering immunity. But unlike Watergate the Capitol Building was attacked and multiple people died. This wasn’t hiding audio tapes or a break-in at the DNC’s offices but an attempt to overthrow the government which could have been far worse but for Pence’s refusal to cooperate, the timely evacuation of Congress, and the eventual mobilization of National Guard. There’s ample already on Trump and we haven’t even gotten through this month’s hearings.

      If anything the House J6 should make no offers. Meadows should be smart enough to figure it out and beg. Eastman is too dicked in the knob to realize he should have done that before pleading the 5th so many times.

      • P J Evans says:

        Eastman has said so much on TV that his lawyer won’t be able to help him.
        Navarro is worse, but he thinks he’s smarter than the lawyers.

        • Rayne says:

          I still can’t wrap my head around Navarro writing and publishing a damned book blaming everybody else but Trump and himself, then having the bloated moxie to expect not to be treated like the average perp. It’s as if he was unconsciously begging to be thrown under the bus.

          • P J Evans says:

            Expecting the court to delay proceedings while he does book publicity.
            CHUTZPAH!

            (Up way early because doc appt at 9am, and it’s an hour by bus.)

          • Savage Librarian says:

            Many of the people in Trump’s circle seem to have the character flaws that are easily and routinely exploited in spy recruitment, at least by Russia. That includes a high degree of narcissism, feeling superior to and looking down on others. I’m not saying Navarro has any connection to spying, just commenting on personality traits.

            I watched “Tracking Edith” recently. I can’t speak as a film critic, but I can say that I learned some terminology and process related to spy craft. Edith Suschitzky Tudor-Hart’s primary achievement and downfall relates to the part she played in the KGB’s recruitment of Kim Philby.

  16. harpie says:

    NEW:

    https://twitter.com/EugeneDaniels2/status/1539229667349213184
    8:52 AM · Jun 21, 2022

    SCOOP: The Jan. 6 Cmte has subpoenaed footage from @alexjholder, a filmmaker who was granted exclusive access to Donald Trump, his adult children & Mike Pence in the WH and on campaign trail before & after 1/6. I’m told he’s to be interviewed Thursday.

    According to the [6/15/22] subpoena, the committee wants raw footage
    -from Jan. 6
    – of interviews from September 2020 to present with Trump, Pence and Trump’s kids
    – of any discussions of election fraud or election integrity surrounding the November 2020 presidential election [screenshots] [link]

    Jan. 6 panel subpoenas unseen Trump tapes
    https://www.politico.com/newsletters/playbook/2022/06/21/scoop-jan-6-panel-subpoenas-unseen-trump-tapes-00040911 EUGENE DANIELS and RYAN LIZZA 06/21/2022 06:15 AM

  17. Randy Baker says:

    As usual, your piece helps provide some coherence to the sea of insanity Trump has generated. As to Goldsmith, while he does make some good points, he stretches pretty far to defend a possible non-prosecution decision — including by failing to address the many other offenses with which Trump might be charged, many of which you point out.

    He notes Trump has various defenses, which is true. On the other hand, juries often convict notwithstanding defenses — especially when the defenses are bogus, as are Trump’s. Thus, while Trump will argue executive discretion, or First Amendment, or mistake etc. the surrounding circumstances are strongly discrediting. He, of course, expressly declined to accept the results of the election if he lost — before hand. A U.S. district court judge found that he and DeJoy had collaberated to obstruct the delivery of mail in ballots to advantage his own candidacy, and he publicly denounced their legitimacy — before the election, and tried to prevent their counting afterwards. He tried to cajole 11,000+ votes out of the Georgia secretary of state.
    He lied about the theft of the election to motivate folks to come to the capitol, and to march on it, and his reference to pardons for them even now, were he re-elected, is strong evidence the assault on the capitol, at least the inference with the counting of electoral votes was his purpose.
    Goldsmith notes prosecution may not promote reconciliation. Yet, there is no reason to think non-prosecution would either. I have heard no evidence of such reconciliation proceeding during the 17 months since Trump left office.
    Indeed, non-prosecution facilitates Trump’s continued galvanization of fascism here. While the fascist movement will exist regardless, as its current leader, there is good reason to believe it is stronger with than without Trump.
    Relatedly, Goldsmith’s fear about prosecution inflaming Trump’s folks totally disregards that Trump’s non-prosecution facilitates his inflaming them. Similarly, the proposition that non-prosecution of the meritorious case against Trump will disincline a Trump or Trump wannabe to not bring bogus charges against political opponents presupposes that they would not do so regardless. I see no evidence to support that assumption.
    Finally, Goldsmith’s observes that “Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover.” That is an extremely speculative proposition. On the other hand, what is nearly certain is that a return of Trump to office — which his prosecution could avert — would be “a cataclysmic event from which the nation would not soon recover.”

  18. GonzoDon says:

    As a former Peace Corps volunteer in Latin America, I can’t help but make a couple of timely observations that pertain to the “exceptionalism” we delude ourselves as having in the United States versus the perceived “backwardness” of our southern neighbors:

    (1) Colombia just held their presidential election Sunday. The leftist candidate prevailed over the conservative candidate with an additional 3% of the vote. The conservative candidate conceded he lost on Monday. Let me repeat that: he quickly conceded, there were no serious allegations of a ‘rigged election’. There was no whining by the losing candidate that the election was ‘stolen’. Gustavo Petro is the recognized winner of the presidential election and the country will move on with him as president, for better or worse. What a concept. (Oh, and he also won on the basis of the ‘popular vote’ — not some arcane ‘electoral college’ system that disproportionately weights votes in certain regions of the country.)

    (2) In April this year, at the request of the United States, the Supreme Court of Honduras approved extraditing their recently term-limited president Juan Orlando Hernandez to the United States, where he will face charges in a New York court accusing him of trafficking drugs for decades. There is no silly argument that a “former president should not be prosecuted for crimes while in office”. There is no serious argument that he should not be prosecuted for his illegal activities as president just because that could be perceived as a “partisan witch-hunt” that would “further divide the nation”. He was widely recognized as being deeply in bed with Honduran narco-traffickers while president [OK, “allegedly”]. In fact, his brother is already imprisoned in the U.S. for similar crimes.

    These are news items from two historically politically unstable “banana republics” in Latin America. I submit that those countries are making a more serious effort to cultivate democracy and instill the rule of law that we are in ours. Which is a really demoralizing thing to have to say.

    Maybe north Americans could learn a thing or two by looking beyond our borders right now.

  19. Cosmo Le Cat says:

    Randy Baker and other commenters here make many salient points, most of which I respect and agree with. However, IMHO an attorney general should not base a charging decision on whether it might inflame particular groups. Instead, Garland should consider the deterrent value of bringing charges. Future potential unlawful insurrectionists will be deterred from acting illegally if they perceive a risk of prosecution.

    One of the beauties of our democratic system is the opportunity for the People to peacefully and lawfully bring about an orderly insurrection once every four years at the ballot box.

    • Randy Baker says:

      I think you are spot on Cosmo Le Cat. That was an important omission from my comment.

      Even if Trump were acquitted, he certainly cannot be confident of that, and future insurrectionists/would be dictators won’t be able to be either if Trump actually is prosecuted.

      I think it is reasonable to infer that Trump, who is lazy and ignorant, but not stupid, has presumed — so far correctly– that as a rich/powerful white guy, he is above the law. For those of us who rely on constitutional government, his presidency and his conduct therein amounts to the chickens having come home to roost as a result of that sort of immunity largely constituting a norm in the American criminal justice system.

      • bmaz says:

        So, Damn the prosecutorial cost and distraction from all the other 1/6 cases, and irrespective of whether charges against Trump really meet the high bar of DOJ charging guidelines, irrespective of the actual likelihood of conviction, despite any and all other of the myriad of issues, they should charge Trump because it will help the fee fees of uninvolved people? That is your verdict?

        • Troutwaxer says:

          I think he’s saying the opposite; that Trump should be prosecuted if the evidence against him is powerful enough, and damn both the right’s feelings and the left’s worries of “inflaming” the right.

  20. Randy Baker says:

    If there is substantial evidence, and manifestly there is, and a reasonable possibility of conviction, and other than your opinion, I am aware of no reason to believe otherwise, yes prosecuting a guy who criminally used the most powerful office in the country to end constitutional government is absolutely worth the resources — even if it means there isn’t enough money to prosecute all the street level drug dealers, and other low level criminals DOJ dutifully prosecutes, and even if some of the fools who attacked the capitol don’t get prosecuted. Moreover, since many of them already have been prosecuted, future participants in such mass assaults will not be able to reasonably assume they will be immune from prosecution. Conversely, if Trump isn’t prosecuted, he or his future immitators would have every reason to believe they can attack constitutional government with impunity. And when a president next attacks constitutional government, there is no reason to believe he or she won’t succeed.

    • bmaz says:

      Lol, “reasonable possibility” is very much NOT the standard. Neither is “substantial evidence”. The decision is also NOT about future politics, that is just BS. It is about this potential case on its merits, and only that. Are you a lawyer, and still rolling with this bunk?

  21. Randy Baker says:

    Substantial evidence is widely used, inter alia, in the U.S. Supreme Court case of Jackson v. Virginia to denote the constitutional requirement for sustaining a conviction against a challenge to sufficiency of the evidence. Reasonable possibility is widely used, inter alia, in the U.S. Supreme Court case of Strickland v. Washington — yes, used there as an estimate of the impact of unprofessional error by defense counsel on the outcome of a case, i.e. something approaching 50/50. Those odds sound quite right given the consequences of non-prosecution of Trump’s crimes. Indeed even DOJ guideline 9-27.220 requires only probable conviction, i.e. more likely than not; 51% qualifies. Not much different. Nor is it clear you are correct that the odds of conviction are not 51%.
    In any event DOJ guidelines are just that. Presumably Garland, being a competent lawyer, knows that guidelines do not necessarily address all circumstances. I dare say those guidelines were not constructed for the purpose of making prosecutorial decisions about crimes committed by presidents using their presidential powers to abolish constitutional government.
    As far as not being about future “politics,” as Goldsmith notes, DOJ is supposed to make this decision with an eye to the public interest and the national interest. I would say the impact of a no prosecution decision on the future of constitutional democracy falls within those concerns.

    • bmaz says:

      Oh, come on man. Jackson v. Virginia is a Habeas case that would never have made it to SCOTUS today, and is impertinent. Strickland v. Washington even less so. Strickland involve a 6th Amendment right to counsel case. Both are completely inapposite to the current situation. When you say:

      “Indeed even DOJ guideline 9-27.220 requires only probable conviction, i.e. more likely than not; 51% qualifies. Not much different. Nor is it clear you are correct that the odds of conviction are not 51%.”

      Lol, that is laughable. No, it really is FAR beyond a preponderance of evidence. Where are you getting this stuff? And when you say:

      ” DOJ is supposed to make this decision with an eye to the public interest and the national interest. I would say the impact of a no prosecution decision on the future of constitutional democracy falls within those concerns.”

      Yeah, that is what YOU say, along with a bunch of other hyperventilators looking at only one side and wild eyed for a prosecution that may or may not be in the cards. It is not all that easy, and if you think it is, you are nuts. And, when you acknowledge the “public interest public and national interest”, do you also acknowledge that may militate in favor of not charging Trump, or are you a one way street?

  22. Matthew Harris says:

    This is probably not directly related, but today, Merrick Garland went to Ukraine today to discuss war crimes investigations and prosecutions with the chief Prosecutor of Ukraine.

    https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-visits-ukraine-reaffirms-us-commitment-help-identify

    I think this is relevant in two ways:

    First, despite the enormous importance of the January 6 investigation, Garland has lots of other things going on, including what is probably the most important war crimes investigation and crisis in international law since World War II.

    Second, there seems to be at least a chance that other investigations around Trump — especially relating to the attempt to extort Zelenskyy– are still going on, and that Garland and the DOJ are attempting to work with Ukraine on that front, as well.

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