Jack Smith's end game?

April 28, 2023

          In the flurry of press attention devoted to Kevin McCarthy’s bad-faith proposed budget/debt ceiling bill, an important fact has been overlooked—Biden’s proposed budget. McCarthy claims the GOP bill will reduce the deficit by $4.5 trillion over a decade, in part by repealing significant investments to reduce carbon emissions and in part by promising unspecified budget cuts to be determined later by the Appropriations Committee.

          But President Joe Biden proposed a budget in March that would trim the federal deficit by $3 trillion over the next ten years while maintaining investments to reduce carbon emissions and increase green energy. Unlike the illusory cuts relied on by McCarthy, Biden’s budget achieves deficit reductions by raising taxes on the top 1% of taxpayers and big corporations. See Fact Sheet: The President’s Budget Reduces Deficits by Nearly $3 Trillion Over 10 Years | The White House

         As we head into the showdown over the debt ceiling, don’t let anyone tell you that Republicans are the only party trying to reduce the deficit. The NYTimes managed to cover McCarthy’s bill and the “painful” choices Biden must make without once acknowledging that Biden proposed a comprehensive budget last month that would reduce the deficit by $3 trillion. See Biden Faces His First Big Choice on Debt Limit.

          Biden’s budget is a bold effort to reduce the deficit without cutting safety net provisions vital to tens of millions of Americans. Biden has also indicated his willingness to discuss other reductions in federal spending—so long as those negotiations are not tied to the increase in the debt ceiling. The media is already falling into the trap of treating McCarthy’s proposal as serious. It is not—because the proposal’s premise is a global financial crisis if Biden doesn’t accept McCarthy’s bill without exception—as members of McCarthy’s caucus made clear on Thursday. The GOP bill is irresponsible, dangerous, and provides no ground for negotiations.

          Stand firm, Joe!

Mike Pence testifies before grand jury investigating Trump over January 6^th.

          As anchorman Ron Burgundy said, “Boy, that escalated quickly!” On Wednesday evening at 8:30 PM Eastern, the DC Circuit ruled that Mike Pence could testify despite Donald Trump’s objections of executive privilege. Twelve hours later, Mike Pence walked into the D.C. federal courthouse to testify before a grand jury investigating Trump’s involvement in the January 6^th insurrection. See The Hill, Pence testifies before grand jury investigating Jan. 6. Jack Smith wasted no time in taking testimony from Pence after the DC Circuit gave the go-ahead.

          If Trump was contemplating an appeal to the Supreme Court, it is too late. Pence testified between the hours of 9:00 AM and 4:30 PM. Although grand jury proceedings are secret, there is no secret about what Jack Smith was interested in. Pence described multiple conversations in his book with Trump leading up to January 6^th.

Because Pence waived any plausible claim of privilege or protection by the “speech & debate clause,” Smith undoubtedly grilled Pence for further details about those conversations—which may reveal Trump’s “state of mind” in his effort to overturn the election. Was Trump honestly mistaken in his belief about voter fraud, or did he not care about the law or the facts? (FYI, that’s a trick question, but Smith must pursue the answer nonetheless.)

          In a related development, Jack Smith subpoenaed a second data analysis firm hired by the Trump campaign to analyze claims of fraud. Like the first firm, the analyst at the second firm concluded as follows:

No substantive voter fraud was uncovered in my investigations looking for it, nor was I able to confirm any of the outside claims of voter fraud that I was asked to look at. Every fraud claim I was asked to investigate was false.

          The analyst, Ken Block of Simpatico Software Systems, forwarded his conclusions to the Trump campaign in late 2020. Trump continued to claim that the election was marred by massive fraud despite being told by two data analysis firms that there was no fraud. See Washington Post, A second firm hired by Trump campaign found no evidence of election fraud.

          Such evidence confirms what we know—Trump used claims of fraud as a pretext for Republican members of Congress to vote against the count of electoral votes on January 6^th. Jack Smith should be able to make a strong case against Trump for multiple violations of federal law. The question is “when”—and the answer appears to be “sometime over the summer.” The testimony of Mike Pence suggests that Smith is near the end of his investigation.

          As a postscript, I note that recent revelations of a taped conversation between Ted Cruz and Maria Bartiromo are tangential to the primary investigation against Trump. Should Cruz be prosecuted? Yes. Is Cruz’s involvement essential to convicting Trump? No. Can Smith proceed against Cruz separately? Yes. So, let’s hope that Smith is not delaying action against Trump because of separate claims against Cruz.

 E. Jean Carroll rape/defamation trial—Day Three.

          Trump’s lawyer, Joe Tacopina, cross-examined E. Jean Carroll for most of the day on Thursday. The cross-examination was painful, insulting, and grueling, but Carroll more than stood up to the challenge. Indeed, on several occasions, she bested Tacopina, correcting him whenever he referred to the “alleged rape.” Carroll responded, “He raped me.”

          Details of E. Jean Carroll’s testimony are here, Politico, E. Jean Carroll, under pointed questioning from Trump lawyer: ‘He raped me whether I screamed or not’. But for a thoughtful analysis of what it means that the leading contender for the GOP nomination is accused of rape, see Ruth Marcus in Washington Post, Opinion | E. Jean Carroll testifies against Trump. It’s a gruesome reminder of his character.

Marcus writes:

          It is important — no, it is imperative — not to sanitize Carroll’s testimony this week in a Manhattan federal courtroom. We have become so inured, so numb, to stories about Trump’s behavior that it is tempting to minimize the case.

          After all, it is just one of many — who can keep straight the gusher of allegations and indictments, actual and impending? [¶]

          We did, but we need to hear it again, and to remind ourselves of how far Trump has dragged us down into the gutter with him, reduced to his level of tawdry entitlement. The account being heard by a Manhattan jury is not only about a former president — it is also about a man who, by all measures, seems poised to claim his party’s nomination a third time.

          Trump has normalized depravity to the point that his party is not fazed by the prospect of a coup-plotting rapist white supremacist as their nominee for the third time. While the E. Jean Carroll rape/defamation trial speaks volumes about Trump, it reveals even more about the moral bankruptcy of the Republican party.

          In the meantime, E. Jean Carroll is taking a stand for all women attacked for daring to speak out against their abusers. Let’s hope that justice is served in her case—for her sake and the sake of all women.

More GOP representatives caught lying on their resumes.

          Trump has also normalized lying about education, experience, and credentials. The incoming class of GOP representatives now has its third member who has been caught fabricating details about their experience. See MSNBC, Another GOP freshman has been accused of lying on his resume. Blame Trump.

          Per MSNBC,

          Like Santos, Andy Ogles [R.Tenn.] has admitted issues with how he described his resume, but he has stopped short of apologizing. . . .  More worryingly, also like Santos, Ogles did not fill out the financial disclosure form required of all congressional candidates. So even as House Speaker Kevin McCarthy sought Ogles’ vote, there was no way of knowing whether Ogles had any conflicts of interest that might influence the concessions he sought.

          [¶]

          So, no, it is not normal that nearly 10% of new House GOP members are alleged fabulists. Nor is it normal for party leaders to determinedly look the other way. But both developments are entirely predictable results of handing the party over to Donald Trump.

          The GOP problem with truthful disclosures has infected GOP appointees to the Supreme Court. Read on!

Like mother, like son.

          Justice Neil Gorsuch’s mother, Anne Gorsuch Burford, was the head of the EPA under Ronald Reagan. Allegations arose that she withheld funds from a California superfund site to damage the re-election prospects of Governor Jerry Brown. Congress issued a subpoena—which she ignored. Congress then voted to hold her in contempt, and she resigned. See Dennis Aftergut in Slate, The Supreme Court’s Current Crisis Recalls the Scandal That Engulfed Gorsuch’s Own Mother.

          Aftergut draws a parallel between Anne Gorsuch Buford’s refusal to cooperate with Congress in investigating a scandal and the recent actions of Chief Justice Roberts:

On April 23, Roberts followed in Burford’s footsteps and declined the invitation of Senate Judiciary Committee chair Dick Durbin to testify about reported ethical breaches and the need for a code of professional conduct for the Supreme Court. Roberts did not defend the misconduct or argue that Congress had no proper oversight role. Rather, his letter relied on the relatively few times that a chief justice has testified before Congress.

Notably, he failed to mention either that simultaneous ethical breaches by two justices are unprecedented or the 92 times—according to Durbin—that sitting Supreme Court justices have appeared. The obvious next step is to invite other justices to testify, as well as Harlan Crow and Brian Duffy, and to raise the ante if they decline.

          In refusing to appear before Congress, Roberts noted that the sitting justices “subscribe” to the existing ethical standards. To state the obvious, the fact that the current justices “subscribe” to existing ethical standards means nothing if they feel empowered to ignore those standards with impunity. Robert’s dismissive letter is an insult to the American people and every other judge in the federal judiciary who is “bound” to follow ethical standards.

Concluding Thoughts.

          Commentators are still struggling to contextualize Joe Biden’s announcement that he is seeking re-election. David Brooks added to the conversation in his op-ed in the NYTimes, Opinion | Joe Biden and the Struggle for America’s Soul. Brooks reviews Biden’s first campaign, which was cast as a struggle for the soul of America. Brooks then writes,

You may disagree with Biden on many issues. You may think he is too old. But that’s not the primary issue in this election. The presidency, as Franklin D. Roosevelt put it, “is pre-eminently a place of moral leadership.”

One of the hardest, soul-wearying parts of living through the Trump presidency was that we had to endure a steady downpour of lies, transgressions and demoralizing behavior. We were all corroded by it. That era was a reminder that the soul of a person and the soul of a nation are always in flux, every day moving a bit in the direction of elevation or a bit in the direction of degradation.

A return to that ethos would bring about a social and moral disintegration that is hard to contemplate. Say what you will about Biden, but he has generally put human dignity at the center of his political vision. He treats people with charity and respect.

          Well said. As I noted when Biden announced his bid for re-election, no one who votes in 2024 will view the choice as “Biden versus Trump.” It is a choice between two disparate visions of America, between moral leadership and moral disintegration. The next eighteen months will be challenging and angst-inducing but we should be confident that Americans will respond to the vision of America in which people are treated with dignity, decency, and humanity. Never bet against that vision of America.

          I will be in touch tomorrow with a short note to kick off the weekend. Talk to you tomorrow!