A coup in search of a legal theory.

March 29, 2022

[Audio version here]

          The frustrating attempt to hold Trump accountable for his crimes gained a narrow foothold on Monday in an order issued by a federal judge in California. The order’s legal conclusion—that it is likely Trump corruptly attempted to obstruct Congress—is more important than the practical effect of the ruling. Most importantly, the order serves as another cry for Merrick Garland to open an investigation into Trump for his many alleged crimes—including extorting Ukraine, obstructing justice in the Russia investigation, campaign finance violations, tax fraud, inciting insurrection, and an attempted coup. Let’s look at the facts:

          Trump’s lawyer, John Eastman, filed a lawsuit in California against the January 6th Committee to resist a subpoena served on him by the Committee. Eastman’s suit was assigned to federal Judge David O. Carter. Eastman claimed that he could withhold documents from the Committee because the attorney-client privilege protected his communications with Trump. Judge Carter asked whether the privilege could protect Eastman’s communications if they were made in the furtherance of a crime. If an attorney participates in a crime or communicates with his client about the commission of an ongoing crime, those communications are not protected by the attorney client privilege. This exception to the attorney-client privilege is known as the “crime-fraud” exception.

          In an order issued on Monday, Judge Carter answered his own question by ruling that one of Eastman’s emails contained evidence that Trump attempted to obstruct Congress’s count of the electoral ballots. Accordingly, Carter concluded that the single email could not be withheld on grounds of attorney-client privilege because it fell within the crime-fraud exception. See  Order re Privilege of Documents. What mattered more than the practical effect of the ruling was Judge Carter’s findings and reasoning. Judge Carter’s words seemed to be directed to the listless DOJ and Merrick Garland:

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.

More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

          The last two lines seem directed to Merrick Garland personally. On the other side of the continent, Rep. Adam Schiff was even more pointed in demanding action from Garland. Schiff spoke in support of referring two recalcitrant witnesses—Peter Navarro and Dan Scavino—to the DOJ for prosecution for criminal contempt. The DOJ has been sitting on a similar referral for Mark Meadows for more than three months. Schiff noted the DOJ’s inaction in his comments, saying

The Department of Justice has a duty to act on this referral and others we have sent. Without enforcement of congressional subpoenas, there is no oversight. And with no oversight there is no accountability, not for the former president or any other president, past, present, future.

Without enforcement of its lawful process, Congress ceases to be a coequal branch of government and the balance of power will be forever altered to the lasting detriment of the American people.

          And yet, we hear nothing from Garland or the DOJ about prosecuting the coup-plotters and those who incited insurrection, let alone indicting the man who extorted Ukraine and obstructed Robert Mueller. A reader sent another defense of Garland that says (essentially) “Criminal investigations are supposed to be secret. That’s why we haven’t heard anything from Garland.” See Palmer Report, Like it or not, this DOJ doesn’t leak - Palmer Report. Palmer’s argument is disingenuous for two reasons.

First, it doesn’t matter whether the DOJ leaks information about an investigation—because witnesses called before grand juries can tell their friends and the media about the existence of the investigation. Palmer argues that all witnesses in the Trump investigations have “flipped” or are “cooperating” with the DOJ and have maintained their silence. I don’t believe it. In an investigation that would have dozens (or hundreds) of witnesses, the notion that all of them would remain silent is not credible.

Second, while it is the general rule that the DOJ does not comment on ongoing investigations, Rule 1-7.400(c) of the DOJ Justice Manual says,

          When the community needs to be reassured that the appropriate law enforcement agency is investigating a matter . . . confirmation of an ongoing investigation may be necessary, subject to the approval [the Attorney General].

          Merrick Garland has never confirmed the existence of “an ongoing investigation” into the attempted coup (as distinct from the attack on the Capitol), the attempt to extort Ukraine, campaign finance violations, tax fraud, and obstruction of justice. The public has a right to know if Merrick Garland has opened investigations into any of those matters. Until he advises the public that he has, he continues to undermine the public’s confidence in the rule of law. And if Garland has opened such investigations, they are moving too slowly; indeed, the statute of limitations has already expired on one of Trump’s efforts to obstruct justice.

It is long past time for Merrick Garland to act. In the words of Adam Schiff, “The Department of Justice has a duty to act.”

Joe Biden refuses to walk back his statement that “Putin cannot remain in power.”

          Joe Biden refused to walk back his statement that Putin “cannot remain in power.” Biden said,

I was expressing the moral outrage I felt toward this man. I wasn’t articulating a policy change. And I think that if he continues on the course he’s on he is going to become a pariah worldwide, and who knows what he’d become at home, in terms of support.

          Good for Biden. His “handlers” in the White House panicked and blew it by suggesting that Biden didn’t mean what he said. He did.

Putin’s war on the Ukrainian people.

          Putin and his soldiers continue to commit war crimes against the Ukrainian people. The strategy of razing cities in order to capture them is the very definition of an attack on a civilian population. Experts are offering conflicting assessments about the course of the war, assessments that cover every possibility: Putin is in retreat to Donbas; Russia has not given up in its objective to take Kyiv; and the Russian Army is regrouping in anticipation of a renewed offensive. But the consensus is that Ukraine is running low on munitions and equipment to sustain its defense. Zelenskyy’s repeated call for more weapons and equipment is something that NATO can and should heed.

Florida’s “Don’t Say Gay” bill goes into effect and Republicans signal intent to challenge gay marriage and contraception.

          Florida Governor Ron DeSantis signed the “Don’t Say Gay” bill that restricts (and punishes) classroom discussion of gender identity and sexual orientation. The success of Florida’s anti-LGBTQ bill is emboldening other conservative Republicans who believe that the issue of same sex marriage and contraception should be left to the states to regulate.

          During the confirmation hearing of Judge Ketanji Brown Jackson, Republicans on the Judiciary Committee engaged in lines of questioning that signaled an intent to roll-back other privacy-based rights after the Supreme Court reverses Roe v. Wade. Senator Marsha Blackburn released a video after her examination of Judge Jackson attacking the privacy rights first recognized in Griswold v. Connecticut—an opinion that related to the right of women to take contraceptive medicine. Another GOP Senator, Mike Braun, said that state legislatures should be allowed to permit—or outlaw—inter-racial marriages. Braun later retracted a portion of his statement, leaving the implication that states could ban same sex marriages if the legal underpinnings of Roe v. Wade are dismantled.

          Here’s the point: Republicans are coming for your civil liberties, and they are doing so via the reactionary majority on the Supreme Court. When will Americans realize that enlarging the Court is the only way to prevent a wholesale loss of individual liberties that were hard-won over the last century? The Roberts / Thomas Court has lost all legitimacy; enlarging it to achieve political purposes would be the least of its legitimacy problems.     

Concluding Thoughts.

          Another round of polling was released on Monday showing that Biden continues to have low favorability ratings. I don’t get it, so I won’t try to explain it. But let’s reflect for a moment about the Democratic agenda as articulated by Biden. On Monday, he announced a “billionaires” tax that would affect only those households with a net worth of more than $100 million. Meanwhile, the RNC platform for 2022 crated by Senator Rick Scott proposes to increase taxes on the bottom 50% of American wage earners. Rick Scott appeared on Fox News and was asked why his plan included a proposal to increase taxes on the bottom 50% of wage earners. Scott attempted to deflect the question by saying that the claim was a “Democratic talking point.” But the Fox News host wouldn’t let Scott off the hook, repeatedly saying, “Senator, it’s not a Democratic talking point. It’s in the plan.”

          So, if you are heading into 2022 and one party is proposing a billionaire’s tax and the other party is proposing raising taxes on the bottom 50% of wage earners, who has the better message? At some point, Republicans will have to defend the RNC platform. And while they are at it, they can explain why Trump praised Putin two days ago, saying,

The smartest one gets to the top. . . . ‘Is Putin smart?’ Yes, Putin was smart. . . . I said, ‘That’s a hell of a way to negotiate, put 200,000 soldiers on the border.’

Trump is never going to dig himself out of that hole. Indeed, he will make it worse every time he opens his mouth.

          So, despite the unfavorable polling, Democrats have a lot of positive messages to run on, while Republicans continue their hate-filled culture war. We have a fighting chance to retain the House and the Senate. Let’s make every effort to do so!

          Talk to you tomorrow!