Our role in ensuring accountability.

August 4, 2023

          Defendant Donald J. Trump entered a plea of “Not Guilty” to the J6 indictment on Thursday. The hearing was notable because the federal magistrate who presided over the arraignment said the trial judge (Tanya Chutkan) would schedule a trial at the next hearing, which is set for August 28, 2023. Defense counsel immediately howled in protest about a trial date that has yet to be set. But the premature dust-up over the trial date has led to a flurry of speculation about whether Trump will (or can) be tried before the 2024 election.

          If the goal of prosecuting Trump is to hold him to account for his crimes (as it should be), the trial date does not matter. Trump will be convicted in one of the three (or four) criminal cases in which he is a defendant. But a conviction will be meaningful only if we can prevent Trump (or a surrogate) from being elected president in 2024.

          Even if a conviction is secured before November 2024, an appeal will take years to resolve. If Trump is elected, so long as the conviction is not final, a Trump-friendly DOJ can seek to dismiss the charges against Trump—as Bill Barr did for General Michael Flynn after he had twice pleaded guilty and was awaiting his sentence.  (See article from May 9, 2020, by NPR, Michael Flynn Pleaded Guilty. Why Is The Justice Department Dropping The Charges?)

          We find ourselves in an unfair situation: To hold Trump to account for his crimes, we must defeat him politically. Embedded in that unfair proposition are two disturbing corollaries:

• If Trump (or a surrogate) is elected, a Republican Attorney General will dismiss the charges against Trump; and

• Republicans in Congress will accept that perversion of justice by Trump and his Attorney General as “business as usual” in the post-truth, post-democracy second Trump administration.

          But we aren’t going to let that happen. We can’t let it happen. Jack Smith has done his job: There is no reasonable chance that Trump can escape all of the charges. Our role in ensuring accountability is to prevent Trump from nullifying the indictments by corruptly dismissing them if a Republican candidate wins in 2024.

          Ever since Trump descended the faux-gold escalator in 2015, we have been saying that “Democracy is on the ballot” in the next election. That statement has never been truer than today. We must act with urgency and determination to defeat Trump in 2024.

More analysis of the indictment and the role of lawyers in the coup.

          Bill Barr is no friend to democracy. But in his own twisted way, he is becoming an adversary to Trump and, therefore, a temporary ally of democracy. On Wednesday, Barr gave a withering takedown of Trump's “First Amendment” defense to the indictment. In an appearance on CNN, Barr criticized the First Amendment defense as follows:  

I really don't think that's a valid argument. As the indictment says, you know, they're not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can even tell people that the election was stolen when he knew better.

But that does not protect you from entering into a conspiracy.

All conspiracies involve speech, and all fraud involves speech.

So, free speech doesn't give you the right to engage in a fraudulent conspiracy.

          Ouch! Double ouch! If brevity is the soul of wit, Bill Barr could have a successful career in stand-up comedy. It is a tragedy that Bill Barr went to the dark side. He could have been a formidable force for good. But that ship sailed decades ago.

          Among the many fine analyses of the indictment and Trump's defenses, an article by Philip Rotner in The Bulwark stands out. See The Bulwark, Coup Indictment: Here’s Why Trump’s Usual Defenses Won’t Work.

          One of Rotner’s essential insights is this:

It is crucial to understanding the indictment to observe that Smith has not charged Trump with separate criminal violations for each—or any—of the individual component parts listed above. He could have. For instance, the fake-electors scheme alone implicated a host of state and federal criminal statutes . . . .

But Smith went a different route. Rather than charging Trump with discrete crimes for specific acts, he charged Trump with broader conspiracies, using the specific acts as evidence of and support for the larger conspiracy charges. [¶]

Trump’s attempts to strong-arm state officials are not charged as standalone crimes. Rather, they are presented as examples of what lawyers refer to as “overt acts” taken by Trump and others in furtherance of a criminal conspiracy to defraud the government.

Smith’s strategy makes sense. Since entering into a criminal conspiracy is by itself sufficient to support a criminal charge, the object of the conspiracy doesn’t have to be achieved.

          Rotner also dispatches the notion that Trump will be able to prove that he truly believed he won the election. Rotner writes:

[S]tart with the factual problem of Trump proving at trial that he really, most sincerely believed that he won the election. How is he going to do this? Is he going to testify?

And what about the fact that virtually every senior member of his own administration [including] the vice president [and] the senior leaders of DOJ . . . told him otherwise?

          There is more in Rotner’s article that is worth reading, but I will move on (for now).

          As a coda to my comments yesterday about lawyer-members of the Federalist Society who participated in the insurrection, un-indicted co-conspirator John Eastman is back in the news. Eastman is still a licensed attorney who currently serves as a Senior Fellow at The Claremont Institute, a conservative “think tank” associated with odious alt-right theories.

          On Monday, John Eastman (and other lawyers at the Claremont Institute in California) filed a lawsuit on behalf of the Colorado Republican Party that seeks to disenfranchise more than 1 million “unaffiliated voters” in Colorado by prohibiting them from voting in state primary elections. See Democracy Docket, Between Disbarment Proceedings and Trump Indictment, John Eastman Finds Time to File Election Lawsuit in Colorado.

          Putting aside the merits of the suit for the moment, the real question is why does John Eastman still have an active license to practice law in California? The California State Bar opened an investigation into Eastman in March of 2022. Sixteen months later, Eastman is still attempting to deprive Americans of their right to vote—which was the aim of his attempted coup in 2021. Eastman is entitled to due process but the California State Bar should also consider whether Eastman represents an ongoing threat to American democracy.

The Supreme Court.

          Justice Alito granted a “sweetheart” interview to the Wall Street Journal last week. The laudatory interview was conducted and written (in part) by an attorney who has two cases pending before the US Supreme Court—a situation that raises obvious concerns about the “appearance of impropriety” over Justice Alito’s participation in cases handled by the attorney who interviewed him.

Indeed, even Justice Alito’s repeated resort to the Wall Street Journal raises ethical questions. See Ruth Marcus, op-ed in WaPo, Opinion | Justice Alito again appears in the Wall Street Journal opinion section. (“It’s hard to hold yourself out as a neutral umpire when you only play on welcoming fields. And offering opinions about the constitutionality of potential legislation is injudicious.”)

          Senate Democrats have had enough of Alito’s public embrace of conservative media outlets and conservative causes. They have sent a letter to Chief Justice John Roberts demanding he “ensure” that Justice Alito will recuse himself from the case being handled by his WSJ interviewer. See Talking Points Memo, Senate Dems Ask Roberts To ‘Ensure’ Alito Recuse From Key Tax Case. 

          The letter says, in part,

The Court is mired in an ethical crisis of its own making, yet its only response has been a weak statement on ethics that Justice Alito has apparently ignored. . . . [The attorney’s] efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties.

          We should expect that Chief Justice Roberts will not respond to the letter but will refer the matter to a functionary who will send a form-letter that says, “Nothing to see here, folks. Move along.” When Congress imposes reforms on the Court that John Roberts opposes, he will have no one to blame but himself.

          Meanwhile, in a legal conference in Portland, Justice Kagan responded to Justice Alito’s remarks alleging that Congress has no authority to regulate the Supreme Court. See Politico, Kagan enters fray over Congress’ power to police Supreme Court.

          Justice Kagan said,

It just can’t be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial. Can Congress do various things to regulate the Supreme Court? I think the answer is: yes. . . . Of course, Congress can regulate various aspects of what the Supreme Court does. Congress funds the Supreme Court. Congress historically has made changes to the court’s structure and composition. Congress has made changes to the court’s appellate jurisdiction.

          Justice Kagan is right, and Justice Alito is wrong. John Roberts should decide quickly if he wants to pick a side. Otherwise, he will have no say in what is about to happen to the Supreme Court.

“Hunter Biden” whistleblower transcript released: “No there there.”

          Hunter Biden business associate Devon Archer testified in a closed session of the House Oversight Committee. He was portrayed as an alleged whistleblower with important information about “the Biden crime family.” Early reports of the testimony suggested that his testimony was a flop for Republicans. No surprise there.

          The transcript of Devon Archer’s testimony was released on Thursday and it turns out the testimony was a belly-flop of epic proportions. Devon Archer repeatedly and emphatically denied any wrongdoing or inappropriate involvement by Joe Biden. See MSNBC, Maddow Blog | Witness transcript makes matters worse for GOP’s Comer, Jordan.

Concluding Thoughts.

          In yesterday’s newsletter, I noted the murder of Emmett Till as an event whose significance took decades to fully understand. When I wrote that sentence, I hesitated and considered adding a reference to the murders of civil rights workers Andrew Goodman, James Chaney, and Michael Schwerner. The bodies of all three civil rights workers were discovered in an earthen dam in Mississippi on August 4, 1964—fifty-nine years ago today.

          To keep my introduction to yesterday’s newsletter short, I omitted the reference to Goodman, Chaney, and Schwerner. On Thursday, Andrew Goodman’s brother David reached out to remind me of the 59th anniversary of the deaths of three brave young men who traveled south to help register Black voters disenfranchised by Jim Crow laws. Their fearless dedication to democracy ended in their brutal murders at the hands of the local KKK chapter in Neshoba County, Mississippi.

           Their martyrdom touched a nerve in America. The illustrator Norman Rockwell sought to capture the brutality of their murders in one of his most important works, “Murders in Mississippi,” aka “Southern Justice.” My wife and I recently visited the Norman Rockwell Museum in Stockbridge, Massachusetts, where I took the photo included below.

          The oil painting has a complicated history that is relevant to the struggle for civil rights in America. Norman Rockwell spent his career as an illustrator for The Saturday Evening Post, but left in 1963 because of the Post’s rule that limited Rockwell to painting Black people “only in subservient positions.” At Look Magazine, Rockwell began to explore the issue of civil rights. He painted “Murders in Mississippi / Southern Justice” to accompany an article about the murders of Goodman, Schwerner, and Chaney that inspired a generation of young people to take up the cause of civil rights.

          In the end, Look Magazine published an early pencil sketch that was more impressionistic and less visceral than the final oil painting. The oil painting hangs in the Rockwell Museum in Stockbridge. It is easy to see why the final version may have been too realistic for the readers of Look Magazine in 1965.

          Many Americans may not be able to recall the names Andrew Goodman, James Chaney, and Michael Schwerner, but they know their story. They know that young Americans of all colors and creeds risked their lives to take a stand for equality and liberty. They know that the bravery of those early “freedom marchers” resulted in tremendous progress in civil rights for all Americans.

          Each of us follows in the footsteps of people like Goodman, Chaney, Schwerner, John Lewis, Rosa Parks, Martin Luther King, Jr., Hosea Williams, Coretta Scott King, and others too numerous to name. When we write letters, send postcards, make calls, march in solidarity, knock on doors, and show up at the polls, we are following the example of the faithful servants of democracy who preceded us.

          While few of us are called to make sacrifices similar to Goodman, Chaney, Schwerner, King, and Lewis, some are willing to take on work that is uncomfortable and possibly confrontational as we strive to “get out the vote.” I was reminded of this fact by reader Lori E. from Indianapolis, who sent the following note about her experiences phone banking to get out the vote in Ohio:

Hello Robert:  I want to thank you for sending the link for phone banks with Ohio Progressive Action Leaders.  I phone banked with them the last 2 nights, and my last call of the night last night was over the moon for me, and I have phone banked my guts out for the last several years. 

I thought this woman was wanting to lead me into an argument about Issue 1, but she really didn't know what it was about, and I explained to her in detail why it is bad for everyone - especially the 88-county requirement, which is considerably more horrifying than the 60% requirement.  She wanted to know why Issue 1 was brought before Ohio voters, and I told her the truth.  Her big concern was term limits, and I told her that is something everyone wants to see on each side of the aisle, and that - as well as so many other citizen-led initiatives - were almost certain to never make it to a ballot if Issue 1 passes. 

One conversation like that is exactly what makes an entire phone bank worthwhile for me. 

She is also concerned about her children and what kind of country they will live in, and I told her that she simply must vote no then. It was one of those moments when I'm pretty certain I reached a person that I convinced to vote. 

At the end of the conversation, she thanked me and said, “I know you probably don't hear this enough, but I'm so grateful you called and explained this to me.” I thanked her for making my entire evening phenomenal.  It truly was a magical moment. 

          Lori E.—like each of us—is honoring the sacrifices of the civil rights workers who faced danger, hatred, and violence to carry us to this point. Being able to reach voters by phonebanks, texts, and postcards is a privilege that we exercise because of those who came before us.

We can beat Trump, take control of Congress, and recapture state legislatures and statehouses in 2024. It will be hard. It will require sacrifice. But our sacrifice is a small repayment of the greater sacrifice of those who secured our freedom with their lives.

          Andrew Goodman’s legacy lives on in the good work of the Andrew Goodman Foundation, which supports youth leadership development, voting accessibility, and social justice initiatives on campuses across the country.

          Thanks for listening. I will be in touch tomorrow with a short newsletter to kick off the weekend. Tomorrow’s newsletter will include an invitation to join the “J6 Indictment Book Club.” For those of you who want to get a head start, the reading assignment is here: United States v. Donald J. Trump (justice.gov).

          Talk to you tomorrow!