GOP contorts itself to defend Trump

March 21, 2023

          To protect Trump, Republicans are abandoning every principle that once defined the philosophical underpinnings of their party. Limited government? Yes! Except if expansive governmental powers are required to protect Trump. Strong states’ rights? Sure! Except when those states pursue Trump. Law and order? You betcha! But not so much when Trump is involved.

          Over the weekend, Speaker-In-Name-Only Kevin McCarthy said that he would direct “relevant committees” to investigate the alleged impending indictment of Donald Trump. On Monday, Chairmen of two House committees sent a letter to Alvin Bragg demanding that he appear before Congress to testify regarding his investigation of Trump's payment of hush money to Stormy Daniels.

          The letter made clear that the GOP congressional leaders hope to protect Trump's presidential prospects in 2024. The letter states,

If these reports [of an impending indictment] are accurate, your actions will erode confidence in the evenhanded application of justice and unalterably interfere in the course of the 2024 presidential election. In light of the serious consequences of your actions, we expect that you will testify about what plainly appears to be a politically motivated prosecutorial decision.

          It is true that a felony indictment of a candidate has the natural tendency to “interfere in the course” of presidential elections. This is because, on average, Americans do not want to elect convicted felons as presidents of the United States.

The solution, of course, is for Republicans to nominate someone not currently under felony indictment rather than expecting state prosecutors to suspend law enforcement. The “politically motivated” decision is not Alvin Bragg’s decision to seek an indictment of Trump but the perversion of congressional powers to interfere in a state prosecution for the purpose of advancing the partisan interests of a political candidate.

          The letter is a feckless embarrassment to congressional Republicans. But it is also another disturbing step in the GOP’s attack on the rule of law—all in the service of a disgraced leader whom they hate but cannot abandon.

Efforts to derail the Fulton County prosecution of Trump for interfering in the 2020 presidential vote in Georgia.

          Trump filed an unprecedented motion to quash the special grand jury's report in Fulton County, Georgia, and to simultaneously disqualify District Attorney Fani Willis. Putting aside the charged political rhetoric in the motion, Trump's chief complaint appears to be that the special grand jury heard evidence regarding his guilt and made a recommendation to the District Attorney, as required by law. See Law and Crime, Trump tries to quash special grand jury report on 2020 election, suppress evidence it amassed.

          The memo is a legal curiosity that is a testament to Trump's growing desperation. In seeking to quash the special grand jury’s report, Trump attacks every aspect of Georgia’s judicial system, including statutes passed by the state legislature decades ago establishing the special grand jury system. He also attacks the impartiality and objectivity of the trial judge who will consider the motion. The motion is here: Motion to Quash Special Purpose Grand Jury Report.

          Trump's concern about the Fulton County proceeding likely skyrocketed when he read that Willis is considering seeking charges for racketeering and conspiracy. See CNN, Georgia prosecutors considering racketeering and conspiracy charges in probe of effort to overturn Trump's 2020 loss, source says.

          Trump's specious motion to quash the special purpose grand jury is another reminder that the passage of time is not the prosecutor’s friend. Every day that passes without an indictment increases the opportunity for mischief by Trump and unintentional error or prejudice by prosecutors, witnesses, or judges. It is time for Fani Willis to request indictments and prove her case.

Georgia’s new bill to allow a state legislative commission to oversee county prosecutors.

          Many commentators are warning about the possible threat to the independence of Georgia district attorneys posed by Georgia General Assembly Bill HB 231. The bill appears to be another backlash by GOP members of the state legislature to weaken laws that empower voters and create accountability for Trump. While I think the bill is a very bad idea, we should recognize that it is unlikely to affect Fani Willis’s investigation of Trump.

          Assuming that Georgia Governor Brian Kemp signs the bill, the independent commission overseeing district attorneys will not convene until January 1, 2024. If Willis hasn’t obtained an indictment of Trump by that date, she never will.

          Moreover, the grounds for removing a Georgia district attorney are limited to the following:

 (1) Mental or physical incapacity interfering with the performance of his or her duties which is, or is likely to become, permanent; 

(2) Willful misconduct in office; 

(3) Willful and persistent failure to perform his or her duties.

(5) Conduct prejudicial to the administration of justice which brings the office into  disrepute;

(7) Violation of the Georgia Rules of Professional Conduct . . . regarding special responsibilities of a prosecutor.

          The commission may not consider a complaint unless it is accompanied by evidence showing that it is likely the district attorney acted with

(A) Undue bias; 

(B) An undisclosed financial interest in the outcome of the prosecution; 

(C) An undisclosed conflict of interest.

          It would not be impossible for a rogue commission acting in bad faith to remove a district attorney for political reasons, but we should at least recognize that is not what the statute authorizes.

Prosecutors who violate state law and the rules of ethics should be accountable to the people or subject to impeachment, not to a commission created by a state legislature. But, as written, the statute does not authorize the commission to remove a prosecutor because the commissioners disagree with the prosecutorial judgments made by the district attorney.

Is Donald Trump “presumed innocent” until proven guilty?

          In yesterday’s Comment section, a reader pinned a link to a Substack post by Steve Schmidt (formerly of the Lincoln Project) in his blog The Warning with Steve Schmidt | Substack. The essay in question is titled Donald Trump: innocent until proven guilty. Schmidt is a skilled and passionate wordsmith and makes many arguments that are unassailably true. I recommend his essay to your attention.

          But I disagree with Schmidt’s articulation of his thesis, which is this:

Donald Trump is innocent.

Though he disgusts me — and you — he has rights guaranteed under the Constitution of the United States. Trump’s attempt to burn the US Constitution to ashes does not exempt him from its protections.

Revenge is not justice any more than is vengeance.

          Donald Trump is not innocent. To be clear, as Schmidt writes, he is entitled to due process and equal protection under the law. He is entitled to a fair trial by an impartial jury of his peers who consider only relevant and admissible evidence. Those jurors should not presume his guilt but should instead render a verdict based on the weight of the evidence and the law provided by the judge. And it would be wrong for others to attempt to inflame or prejudice the jurors against Trump. That is all he is entitled to under the law.

          But Donald Trump is not innocent—and we are not jurors called to render a verdict based on the prosecution’s burden of proof. Granting someone a fair trial does not require members of the public to engage in idealized feigned ignorance in which we suspend our senses, ignore our ability to reason, and disregard our powers of inference.

          I saw Donald Trump commit the crime of insurrection on live television. So did tens of millions of Americans. I witnessed Trump telling the Vice President to disregard the Constitution. I watched him threaten Pence by riling an ugly mob. I watched Trump say, “We are going to the Capitol” because “If you don't fight like hell you're not going to have a country anymore.”

The insurrectionists knew what Trump meant and acted accordingly. Indeed, at trial, insurrectionists have pointed to Trump's words to explain and justify their incitement to violence.

          I witnessed a violent assault on our Capitol unfold over three hours while Trump temporized, telling insurrectionists not to harm the police but stopping short of telling them to leave the Capitol. In refusing to call off the mob, Trump ensured that Congress could not discharge its constitutional obligation to count the electoral ballots on January 6^th.

          I witnessed Trump telling the rioters to go home only after the Capitol Police had restored order, assuring them, “We love you. You're very special."

          Do not tell me Donald Trump is innocent. Do not tell me that seeking to protect the rule of law is “vengeance” and that seeking justice is “revenge.” We are past fooling ourselves. Trump is engaged in a second coup attempt—and this time, his target is the system of justice rather than Congress. If we coddle and pamper him by wrongly conflating the words of a jury instruction with our duty to protect the Constitution and the rule of law, we will not stop his second coup attempt. We must be better than that.

          It is right to raise the alarm in plain language that does not obscure the truth: Donald Trump is guilty. He must be held to account in a court of law. If we fail to do that, we will fail the Constitution and future generations.

          No, Steve Schmidt. Donald Trump is not innocent. Do not confuse Trump's right to a fair trial with the self-evident truth of his guilt. Do not conflate an evidentiary presumption binding on jurors with the manifest certainty of his guilt. They are two different things—and we ignore that difference at our peril.

Concluding Thoughts.

          Meanwhile, President Biden continues to govern in a way that seeks to protect future generations from the effects of the climate crisis. On Monday, Biden issued his first veto to maintain a Labor Department rule allowing retirement plans to consider environmental factors when making investment choices. Incredibly, the Trump administration prohibited retirement plans from considering factors such as “climate change or pending lawsuits when making investment choices.” See HuffPo, Biden Issues First Veto, Defending Labor Department Rule.

          Biden’s veto comes days after the IPCC Climate Change Report for 2023 was released. The report was sobering and drives home the point that dramatic action is required now—including divesting investments in companies that are accelerating the climate crisis.

          A downside to the pessimistic reports of “tipping points” in the climate crisis is that such reports can give the mistaken impression that resistance is futile. It is not. We still have the ability to turn the tide, but it will take discipline and sacrifice. And we should not forget the ability of science to accelerate the reversal of the trend toward warming. One example is the recent discovery that hydrogen gas is available in huge quantities. Hydrogen is a carbon-free energy source that can power electrical plants, mass transit, and fuel-cell cars.

          We should not resort to magical thinking to avoid the hard truths of the climate crisis. Nor should we give up hope. That is why Biden’s veto matters. Everything we can do to lessen our dependence on fossil fuels will buy us time to come up with new solutions. It is worth the effort. Indeed, it is our only choice—so we should make it.

          Talk to you tomorrow!