TIME TO FISH OR CUT BAIT (UPDATED 7-18-22)
New York magazine’s Olivia Nuzzi describes El Blobbo del Mar A Lardo thus:
“Donald Trump was impeached twice, lost the 2020 election by 7,052,770 votes, is entangled in investigations by federal prosecutors (over the Capitol insurrection and over the mishandling of classified White House documents and over election interference) and the District of Columbia attorney general (over financial fraud at the Presidential Inaugural Committee) and the Manhattan district attorney (over financial fraud at the Trump Organization) and the New York State attorney general (over financial fraud at the Trump Organization) and the Westchester County district attorney (over financial fraud at the Trump Organization) and the Fulton County, Georgia, district attorney (over criminal election interference in Georgia) and the Securities and Exchange Commission (over rules violations in plans to take his social-media company public through a SPAC) and the House Select Committee on January 6 (whose hearings are the runaway TV-ratings hit of the summer), yet on Monday, July 11, he was in a fantastic mood.”
It’s interesting to note that, despite everything in that paragraph that describes a person you would not allow to leave your home (were you insane enough to allow entry to begin with) without counting the silverware first, none of that qualifies as anything that would keep El Blobbo del Mar A Lardo from running for President in 2024. Outside of minimum age (35) and citizenship (native-born), the Constitution puts no other impediments in the way of any citizen deciding they can run for the office of President. That’s another omission on the part of the Founders, that they thought there was no reason to enumerate things that everyone “knew,” that everyone “understood” - that a man who could be described this way would never even dream of doing such a thing as running for president. Just like most everything else one thinks is a “rule” in the Constitution turns out to be rather “we know only decent and honorable people will ever participate in this decent and honorable government, so there is no need to insult their intelligence and good character by listing things they would never do.”
In the interview, Trump tells Nuzzi that he’s already decided to run, that the only remaining question is, does he announce that fact before or after the mid-term elections? Trump has a long history of successfully bullying prosecutors and regulators and evading any consequences for his “misbehavior.” For him, announcing means he can change the subject from his role in the Insurrection (I don’t think so - I think it will do the opposite). More importantly, it might cause Merrick Garland, the District Attorney of New York City, the Attorney General of the State of New York, the U.S. Attorney in Washington D.C., and the District Attorney in DeKalb County Georgia flinch from charging him on the grounds the justice system is not to intrude in politics. This, unfortunately, is more plausible.
News reports all note Trump’s desperation to turn the national conversation away from the January 6 insurrection. He realizes from the lack of response to his Truth Social rants during the hearings that he doesn’t have the same microphone he would have as a candidate. Getting noticed again is a big motivation to announce, regardless of the advice he gets that he shouldn’t do so before the mid-terms lest he make the election a judgement on him. He retorts that he wants to show “his” voters will come out to support him, making him the author of the coming Red Wave landslide.
The Insurrection is also hurting him with big donors, who have tired of his antics and worry about how his presence and the January 6 baggage will impact the presidential election if he decides to run. There’s also the fact the donors are in the middle of a love affair with DeSantis, to whom they are donating for his 2024 run under the guise of supporting his gubernatorial campaign. The fact he’s raised more than $100 million in a race where $25 million would likely cover things says everything one needs to know about 2024, despite his protestations that he intends to serve out his next term when elected.
As of now, the House Select Committee to Investigate the January 6 2021 Attack on Congress seems to be way ahead of the Department of Justice - to the point where this past April the DoJ went to the Committee to request transcripts of interviews that the panel had conducted in the course of its investigation. The New York Times reported that prosecutors working the January 6 investigation learned new information from Cassidy Hutchinson’s televised testimony at the same time as the public - and were just as surprised.
Combined with the widespread impression the Department of Justice began with a narrow focus on the events of January 6 itself, going after the many misdemeanor arrests and convictions of members of the mob who entered the capitol while sidestepping the more important investigation of who organized the attempt to overturn the election, has left many former DOJ officials questioning what in hell is be going on. Many of them feel the department has moved extremely lackadaisically on what is arguably one of the most important criminal investigations in American history: an open and brazen conspiracy to subvert and overturn the results of a democratic presidential election.
Andrew Weissmann, a former chief of the fraud section in the DOJ’s criminal division and Mueller prosecutor, has suggested that the DOJ’s investigation has proceeded aimlessly, telling Politico on Tuesday: “We’re in a very unusual situation where you see Congress doing a really, really good job and being out in front of, by all accounts, the federal government in many ways in terms of understanding and investigating what happened in terms of trying to undermine the last presidential election.”
Weissman and others believe Attorney General Merrick Garland did not initiate the investigation with the goal of investigating the conduct of Trump and others in the White House, rather focusing the department on the narrow issue of the riot and those who participated in the violence.
While charges of seditious conspiracy against the Oath Keepers and the Proud Boys for planning the attack have been made in recent months, and the first rioter to be convicted in a trial, the head of the Houston Oath Keepers, has been recommended for an enhanced sentence of 15 years in prison for having committed acts that quality as “terrorism,” this seems only to be a focus on one aspect of the violent election-subversion effort, ignoring the multi-month campaign to overturn the results that preceded it and the involvement of individuals up to and most certainly including the President of the United States.
Attorney General Merrick Garland faces a historically unprecedented decision. While he has said that the DOJ is running the investigation with a bottom-up approach, emphasizing that prosecutors would “follow the facts wherever they lead,” the inner workings of the investigation remain largely unknown to those on the outside. This statement prompted speculation the facts would eventually lead to Trump and his inner circle. But the New York Times’ reports detailing the ways in which DOJ staff have been taken aback by the January 6 Committee’s televised revelations cast doubt on whether the investigation has actually been working that way.
Fretting over the timing of prosecuting higher-up figures that might include Trump himself may be oveblown, but concerns about political influence will only get worse as time goes on, particularly with Trump suggesting that he will announce his candidacy before the midterms.
If that means Garland ends up prosecuting a former president as he’s running to be president, that raises its own potentially worse political problems. Time is not on DOJ’s side; racking up charges against individual rioters with no public move regarding the progress of the broader investigation into Trump only makes things worse the longer it continues. Going after insurrectionists who were merely following oders while never addressing the serious crimes that admittedly occurred within the Executive Branch only leads to further public problems for the DOJ.
This has been in part the question whether or not prosecutors ever believed that there was enough information available to open an investigation into the attempt by Trump and his inner circle to block the election, or into Trump’s activities around January 6.
Before the testimony of Cassidy Hutchinson, many legal observers didn’t believe Trump had met the standard for incitement or obstruction. After Hutchinson’s testimony, most have changed their position. The New York Times reports suggest federal prosecutors overseeing the investigation may have been similarly surprised, and have had a similar change in perspective.
Evidence for the change in pserspective come from the new steps taken by DOJ in recent weeks to focus on the seating of alternate electors. Trump lawyer John Eastman’s cell phone was seized and Jeffrey Clark’s home was searched - part of an investigation conducted by the DOJ’s inspector general. Additionally, the DOJ has issued subpoenas to dozens of people involved in the fake elector scheme.
On Wednesday, Bennie Thompson said the Committee was negotiating with the DOJ to allow federal prosecutors to review transcripts of depositions taken from witnesses in the fake electors probe.
If Garland is really worried about public support for such a move against Trump, he might want to see the results of some recent polling that indicates the blockbuster hearings are cementing the views of some voters who once backed Trump and now believe he should face criminal prosecution. Focus groups by Engagious/Schlesinger last week after the Tuesday public session showed that 10 of 14 Wisconsin swing voters said Trump should be prosecuted for trying to overturn the 2020 election and his role in the attack on the Capitol; 10 of 13 Arizona swing voters said the same. These focus group results track with national polling showing more than half of Americans believe Trump should face criminal charges.
Published comments include, “He's our president and a president should have never done anything to provoke what happened," said Samantha O., 39. Andrew R., 59, said: "We have to show other people that this just can't be done in the future. Prosecution is going to be the price to pay if you try to do a coup again — and that's exactly what it was, a coup."
Those who thought Trump should face criminal prosecution didn't relent even when the moderator said doing so would be unprecedented, potentially putting future presidents at risk of being prosecuted for political reasons. The focus group participants were adamant that such a move would help deter similar attempts by anyone else in the future to "overthrow the government."
Attorney General Garland: the focus group members are right.
UPDATE: Tonight (July 18) Rachel Maddow reported the existence of a memo put out by AG Garland regarding the actions to be taken by DOJ prosecutors involving political campaigns. The memo updates and reconfirms a memo by AG Bar from Febrauary 2020 stating that NO ACTION can be taken against a PRESIDENTIAL CANDIDATE, PRESIDENTIAL CAMPAIGN, OR SENIOR ADVISOR TO THAT CANDIDATE without the express written approval of the Attorney General. Commentators are taking this to be an indication that Garland would not maintain any case against Trump, once he declares himself a candidate for president in 2024. If this is true, Merrick Garland is obviously the wrong man in that office, since he fails to recognize Democracy’s Enemy when he sees him. He is willing to follow the rules even when that means that the Enemy of Democracy is allowed victory.
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Time is not on our side. It’s obvious that DOJ has come late to the party and doesn’t yet have a complete case against Trump, let alone deciding whether to indict him for sedition or to lump him into a conspiracy with Giuliani, Stone, Mr. Overstock and/or the neo-Nazi leaders of Proud Babies and Oath Breakers. The DOJ, Pre-Trump, was always a by-the-book group and I’m sure they are now resorting to the comfort of proper procedure. They just will not take a flyer and indict with the hope that the 1/6 Committee has or will find the goods on Trump before a Rule 12 motion to dismiss is filed. I know we all think the evidence is there already, but it requires inferences and that’s a bit nerve wracking for a lawyer. (Of course, they work on inferences in Mafia cases, and this is shaping up with lots of parallels to Mafia prosecutions.) And I’m sure Garland thinks he has learned a lesson from Comey and will not announce “that something smells might suspicious around here” just to try to prove his bona fides with his tribe.
I think we have to plan on any indictment or information being handed down long after Trump announces a 2024 run. We have to keep the pressure on Congress and the press. The press especially. They need backbone. I think the greatest service the 1/6 Committee can do is teach the press that this is no time for bothsiderism. And we need to buttress the Georgia and NY prosecutors. They will need to be especially brave to follow the evidence to where it is inevitably leading, and act on that evidence.
When the committee is done, perhaps Pelosi should request another round of impeachment charges, convict him, send it to the Senate, and let's see if they have the guts to uphold their oaths, convict him, and prohibit him from running for office again--which they can do.
None of this will happen. But it should.
I also have said often that we wouldn't be in this situation if Merrick Garland were alive. But a little reminder about Garland: He prosecuted the Oklahoma City bombers. And when he did, it took him a while. There were no leaks. And when he went to court, the only way to avoid convicting them was if you were from the Planet Zort. So maybe, just maybe, he wants all of his ducks in a row.
A reminder from the Civil War of how that can be effective. Ulysses Grant was fed up with waiting for General George Thomas to attack John Hood's army in Tennessee. He kept telling him to attack, and Thomas was known for refusing to move until he felt he was ready. Grant finally decided to relieve Thomas of command. Lincoln told him that, in fairness to Thomas for the great work he had previously done, he would go along only if Grant went and relieved him in person. Grant was about to go when word came that Thomas had attacked Hood's army, and destroyed it.