Accountability matters.

January 11, 2023

          The former CFO of the Trump Organization, Allen Weisselberg, was sentenced on Tuesday to five months in state prison for a tax fraud scheme that spanned fifteen years. With credit for good behavior, he may serve only three months. His short sentence was due, in part, to the fact that he allegedly cooperated with the state in its prosecution of Weisselberg and the Trump Organization.

          The jury concluded that Weisselberg lied in his testimony at trial, where he claimed that he defrauded the Trump Organization by paying himself millions in compensation without the company’s knowledge. Curiously, Weisselberg remains an employee of the Trump Organization and will be on “paid leave” while serving a prison sentence for defrauding the Trump Organization. See Forbes, Trump Org CFO Allen Weisselberg Sentenced To 5 Months In Prison For Tax Fraud.

          Weisselberg’s lenient sentence says much about the frustration of Americans with the apparent lack of accountability for a self-described “would-be Fifth Avenue killer” and former president who has flouted civil and criminal laws for decades. Weisselberg’s lenient sentence—and the absence of federal prosecution of Weisselberg and Trump for tax fraud—serves as a point of departure into other major stories on Tuesday, including efforts by the House GOP to “investigate the investigators” and Brazil’s dramatic moves to hold would-be insurrectionists accountable for the attacks on January 8th.

“If it were me, I would have been sentenced to ten years in prison . . . .”

          A common reaction upon hearing of Weisselberg’s lenient sentence is, “If it were me, I would have been sentenced to ten years in prison . . . .” Whether that observation is true is less important than the fact that most Americans believe it to be true. In other words, federal law enforcement officials have created a crisis of confidence in the public’s view of their willingness and ability to prosecute Trump.

The case for tax fraud against Trump was laid bare by his former attorney, Michael Cohen, in testimony before a congressional committee in February 2019. New York state prosecutors were able to put together an open-and-shut case against Weisselberg and the Trump Organization in the ensuing two years. So far as anyone can tell, the DOJ has never bothered to open an investigation into possible tax fraud by Trump.

          Weisselberg pleaded guilty to the charges and agreed to testify against Trump-affiliated entities—but not against Trump, despite the fact that he micromanaged his eponymous company. The jury’s guilty verdict against the Trump Organization shows that the jurors did not believe Weisselberg’s testimony that the Trump Organization was an innocent victim of Weisselberg’s fraud. But the judge nonetheless honored Weisselberg’s plea agreement, which explicitly required “Weisselberg testifying truthfully in the upcoming criminal trial of the Trump Organization by providing truthful testimony as to the facts.”

          But per Business Insider,

The conviction indicates that the jury believed Weisselberg lied on the stand when he testified that he had no intention to help anyone beyond himself in the scheme.

          And yet, the state court judge granted Weisselberg the benefit of a plea bargain in which Weisselberg did not honor his end of the bargain. As many commentators have noted, a shoplifting charge in New York for stealing a backpack resulted in three years in prison, while Weisselberg’s multi-million tax fraud resulted in a five-month sentence.

          To put a finer point on Weisselberg’s conviction, “Where is Trump in this obvious tax fraud?” and “Why haven’t federal prosecutors pursued Trump?” As Merrick Garland’s defenders will quickly point out, “No one knows” what the DOJ is—or isn’t—doing. But one former prosecutor put into writing what he claims every prosecutor is thinking: It will be impossible to convict Trump because there will be at least one “Trump supporter” on every jury who will refuse to convict. See Micael J. Stern op-ed in NYDaily News, The real reason the feds haven’t indicted Trump. Per Stern,

[I]t is a near certainty that at least one juror would accept the widely held Republican position that any prosecution of Trump is political persecution. That would all but ensure a hung jury in any case . . . .

          If that is the reason that federal prosecutors have delayed indicting Trump, that excuse is unacceptable and offensive. It amounts to granting permanent immunity to every former president—and thus gives them license to commit crimes while in office. The difficulty of convicting a former president cannot be grounds for declining to prosecute a former president, especially where the potential crimes include insurrection, seditious conspiracy, theft of national defense secrets, election interference, and obstruction of Congress during an official proceeding. For more on that, read the next article about the plans of the House subcommittee on the “Weaponization of Government.”

House Committee plans to “investigate the investigators.”

          As expected, the GOP House majority approved the creation of a subcommittee of the Judiciary Committee designed to “investigate the investigators” who are pursuing Trump and his co-conspirators in the attempted coup and insurrection. See WaPo, House Republicans to form subcommittee to investigate the government. The “Select Subcommittee on the Weaponization of the Federal Government” will be under the control of Jim Jordan and will include House members who are apparently under investigation by the Justice Department for their role in the January 6th insurrection. See NBC News, Rep. Scott Perry, subject of Jan. 6 probes, declines to recuse himself from looking into those investigations.

          The goal of the select committee will be to interfere in the ongoing criminal investigations of Trump and cohorts, including investigations into members of the subcommittee! As I noted yesterday, I don’t believe the investigations will inflict substantive damage to the criminal investigations because of existing protections for grand jury proceedings. But the select committee is likely to increase the perception that any indictment of Trump is politically motivated—and the longer that any indictment is delayed, the more that perception will increase.

          If Trump had been indicted before the 2022 midterms, the potential for mischief by the subcommittee would be diminished. And to state the obvious, if Rep. Scott Perry had been indicted already, his membership on a committee tasked with investigating the investigation into his prosecution would be more problematic than it already is.

          All of which brings us back to the obvious point that accountability can be blunted or evaded if it is untimely. If the DOJ is still investigating Trump in 2024 and he (or an ally) is elected president, the DOJ’s (allegedly) painstaking effort to build an “airtight” case will become worthless.

          Looking for a silver lining, it is a certainty that Jack Smith understands that the longer he delays in seeking an indictment, the more difficult it will be—for reasons having nothing to do with the merits of the case. Republicans appointed the select subcommittee to investigate the DOJ because they believe it will create drag on the momentum to indict Trump. They are not wrong; whether that drag will be enough to affect the outcome remains to be seen.

          Despite my profound disappointment about the delay in indicting Trump to this point, I believe that timely action by Jack Smith can be effective in defending democracy against future attacks. I fervently hope that he understands the urgency of the situation and is focused on bringing the guilty to justice rather than repairing the damage to the DOJ’s reputation inflicted by Trump and Barr.

Brazil acts quickly to defend the rule of law.

          As a counterpoint to the pace of prosecutions and accountability in the US, Brazil seems to be acting with greater urgency in dealing with coup plotters and insurrectionists in the January 8th attack on its Senate, presidential palace, and Supreme Court. In yesterday's newsletter, a comment posted by a reader (Shep) from Rio de Janeiro, Brazil, provides exceptional insight into the response by Brazil and how it differs from the US response. The reader notes that within twenty-four hours of the attack,

all 27 governors joined President Lula, the entire cabinet, the President of the Supreme Court, the National Prosecutor, the head of the National Association of Mayors and congressional leaders who momentarily set aside their striking political difference in an unambiguous show of solidarity for democracy and in recognition of Lula's presidency. In a moving symbolic gesture, the entire group—arms linked—were led by Lula and Justice Weber across the plaza to witness the destruction at the Supreme Court and to pledge their support for the rule of law.

          Wow! Can you imagine the same happening in the US after January 6th—the Vice President (not Trump), the entire cabinet, the entire Congress, and the Chief Justice marching with arms linked to the steps of the Capitol to condemn the violence? Or how about this:

One hundred companies associated with agro businesses that financed the bus loads of insurrectionists to Brasilia have had their assets frozen pending investigation—money held in anticipation of fines to pay for damages and upkeep of 1,200 detainees.

          While similar measures are not possible under the US Constitution, the point is this: Within hours of the attempted insurrection, Brazil had moved swiftly to impose accountability on corporate entities that bankrolled the insurrection. Our DOJ is still investigating those who provided funding for the “Stop the Steal” rally on January 6th. Unlike in Brazil, it is doubtful that any of the GOP megadonors who funded the pre-insurrection rally will ever be held to account.

          That might be the right result from a criminal law standpoint, but there must be a middle ground between Garland’s Sphinx-like silence and the immediate asset freezes in Brazil. I acknowledge Garland’s formulaic speeches that say “We’ll apply the facts and the law and make a decision, consistent with the principles of prosecution.” Call me impatient, immature, or just plain wrong, but I don’t believe such statements are sufficient or responsive to the needs of democracy in this extraordinary situation.

Concluding Thoughts.

          I didn’t intend for this newsletter to sound so negative about the progress to date in prosecuting defendants for the January 6th attack. Convictions for seditious conspiracy are like Unicorns and the DOJ has secured several already and is on pace for more such convictions. And I may be a hopeless romantic, but I believe the glowing P.R. about Jack Smith. I fully expect that he will issue indictments before mid-2023. Although that timing is not ideal, it is less problematic because of Trump’s weakened political posture. And with any luck, Fulton County District Attorney Fani Willis will secure the first indictment against Trump in the next thirty days. (Caveat: We must acknowledge the possibility that the special grand jury will recommend against indictment.)

          And I am genuinely less worried about the House investigations than many others appear to be. Let me give an example. Recall that House Republicans planned to release a “counter-report” to the January 6th Committee final report. Do you know whether Republicans released that report? Do you know what it said? How long was it in the news cycle? Answers: The “counter-report” was issued on December 22, 2022; it said nothing of consequence; and it was covered by Fox News for about four hours. The report was authored by Jim Jordan and four other House Republicans who will now serve on the “Weaponization” subcommittee.

          Here’s my point: If Republicans had something “explosive” to report about January 6th, they would have done so in their counter-report (which was issued one day before the J6 Committee final report). They got nothing, but they want you to believe otherwise as they muck about in documents and transcripts that establish their own culpability. Do not stay awake at night worrying about the investigations. Stay focused on the lack of substance in the GOP agenda and the substance of the Democratic agenda. And hope for early action by Jack Smith. That development will change the conversation ASAP!

          Talk to you tomorrow!