Should the DOJ prosecute Trump?

June 21, 2022

[Audio version here]

          The damning presentation by the January 6th Committee has shifted the conversation from whether Trump committed crimes to whether it is a good idea to prosecute Trump for his crimes. Teasers from the Committee’s presentation scheduled for Tuesday, June 21st at 1:00 PM Eastern suggest that evidence of Trump’s actions will deepen and compound his exposure to indictment and prosecution. In the surest sign that this new reality is seeping into Trump’s reptilian brain, Trump operatives are hatching a plot to make John Eastman the “fall guy” for the failed coup. See Rolling Stone, Exclusive: Trump’s Team Setting Up Eastman to Take Blame for Jan. 6. The article notes that

Trump in recent weeks has told confidants that he sees no reason to defend the lawyer who tried to help him overturn the 2020 election, sources tell Rolling Stone. . . [Trump] has privately insisted he “hardly” or “barely” knows Eastman, despite the fact that he counseled Trump on taking a string of extra-legal measures in a bid to stay in power and wrote the so-called “coup memo” . . . .

          When Trump claims he “barely” knows you, it is time to call your lawyer and negotiate a plea deal. Trump is once again proving that he is no legal genius. Throwing John Eastman to the wolves increases the likelihood of convicting Trump. Good!

          But the growing strength of the case against Trump has generated a new round of defenders of Merrick Garland’s investigation of the coup’s leaders. On Monday, about a dozen readers sent me a copy of an article by Harvard Law Professor Jack Goldsmith in the NYTimes, Opinion | Prosecute Trump? Put Yourself in Merrick Garland’s Shoes. Like many commentators, Professor Goldsmith cites the many obstacles that prosecution of Trump will entail. Goldsmith claims that Garland must decide (1) whether to appoint a special counsel to prosecute Trump, (2) “whether he has adequate evidence to indict Mr. Trump,” and (3) “whether the national interest would be served by prosecuting Mr. Trump.”

          Many of the readers who forwarded the article to me expressed sympathy for Garland as he wrestles with the three issues raised by Professor Goldsmith. Given the significant indication of reader interest in the article, I address the concerns raised by Professor Goldsmith.

          The question of whether Garland should appoint a special counsel has been answered—he hasn’t appointed one. If Garland believes he has a conflict of interest, it existed within days of taking office. So, this issue seems foreclosed.

          The question of whether there is sufficient evidence to indict Trump is not a close question in my view. Rarely does a prosecutor have an audio recording of a crime being committed—the attempt to persuade Raffensperger to “find” 11,780 votes necessary to overturn the Georgia election for president. See, e.g., The Hill, Watergate prosecutor: Georgia case could ‘send Donald Trump to prison’.

          As reported in The Hill, Watergate prosecutor Nick Akerman said,

Prosecutors love tape-recorded evidence, because you can’t cross-examine it. What’s significant with those tapes is — when you put it into the context of all the evidence the Jan. 6 committee has uncovered, you put that together — Donald Trump has zero defense in Georgia.

          Will Trump raise defenses? Of course! Will he appeal? Of course! Will he be acquitted? Absolutely no chance! Will he be convicted? Maybe, maybe not. Are those reasons not to prosecute? No! The evidence of guilt is overwhelming because the crimes were committed in public. If Trump is not convicted, it will be because a Trump loyalist refuses to deliberate in good faith.

          And let’s put to rest the handwringing argument that Trump’s (allegedly) mistaken belief he lost the election makes it difficult to prove criminal intent. It does not! Professor Goldsmith observes “Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.” That argument betrays a misunderstanding of criminal intent by the “many who have noted” the argument.

          Suppose, for example, your neighbor breaks into your house, holds you up at gunpoint, and takes a bowling trophy that your neighbor believes he rightfully won at a league championship. Does your neighbor’s mistaken belief give him a defense to breaking-and-entering and armed robbery? NO!!! If your neighbor wanted the trophy and it rightfully belonged to him, his remedy was to file a legal action in the courts to regain possession of the trophy—not to take the law into his own hands.

          Likewise, it does not matter whether Trump believes he rightfully won the 2020 election. That belief does not excuse his efforts to override the 12th Amendment, which limited Pence to “opening” and “counting” the electoral ballots. If Trump wanted a different outcome, his relief was in the courts—which roundly rejected his claims.

          Finally, Professor Goldsmith says,

          Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover.

          I have lost all patience with this argument. Did Professor Goldsmith see what happened on January 6th? That was a “cataclysmic event from which the nation will not soon recover.” If Garland does not prosecute Trump, we will witness another insurrection—but it will be worse than the first. It cannot be repeated enough: The only thing worse for the nation than prosecuting Trump is not prosecuting Trump.

          Look, prosecuting Trump will be difficult, messy, and possibly inconclusive. Let’s not fool ourselves about those facts. Those of us who insist that Trump should be indicted ASAP are not saying that it will be easy. Rather, we are saying that it is urgent and vital that the DOJ rise to the defense of the Constitution. If it fails to do so, the Constitution is nothing more than four pages of fragile parchment. If the DOJ vindicates the Constitution by prosecuting Trump, the DOJ will ensure the Constitution’s status as the charter of an enduring democracy.

January 6th hearing on Tuesday, June 21st at 1:00 PM Eastern

          The Washington Post reported on comments from Rep. Adam Schiff, who will assume responsibility for some of Tuesday’s hearing. It appears that Tuesday’s hearing will be another eye-opening exposition of the extent of involvement by Trump and his aides in the “fake electors” scheme. See WaPo, Trump campaign documents show fake electors were concerted, planned effort. Schiff said, in part,

We’ll show evidence of the president’s involvement in this scheme. We’ll also, again, show evidence about what his own lawyers came to think about this scheme.

          Make an effort to watch the entire hearing. It is history in the making!

Quick update on the alleged “collapse” of progressives in California primaries.

          The day after California’s primary on June 7, 2022, major media outlets proclaimed that California voters had rebuked progressives because they are allegedly “soft on crime.” The media focused on two races: The recall of a San Francisco District Attorney and the first-place finish of a former Republican turned Democrat (Rick Caruso) in the LA mayoral primary. I noted that the NYTimes ran a story titled “California Sends Democrats and the Nation a Message on Crime”. In my June 9th newsletter, I argued that these stories badly misrepresented what happened in California and that the outcome in two elections was an insufficient data set to draw conclusions in a state with hundreds of primaries on ballots across the state.

          Well, it turns out that one of the two races on which the breathless reporting was based has flipped the first and second-place finishers as mail ballots have been counted. Billionaire Rick Caruso has been overtaken by Rep. Karen Bass by 6 percentage points. (When the NYTimes ran its story, Caruso was leading by 5 points—and 11-point swing!) See Los Angeles Times, Karen Bass widens lead over Rick Caruso in L.A. mayor’s race.

          Although there will still be a run-off between Caruso and Bass, the fact that Caruso finished second after spending $40 million in a mayoral primary suggests that LA voters were not as impressed with his “tough on crime” message as the NYTimes suggested. (Bass spent $3 million.) So far as I can tell, neither the Times nor other major outlets have corrected the misleading headlines—presumably because that doesn’t fit the consensus narrative adopted by lazy journalists.

          So, despite the wave of stories on June 8th that California voters “rebuked” or “rejected” progressive candidates in the June primaries, the fact is that one progressive candidate was recalled in San Francisco. Across the rest of the state, progressive candidates did just fine.

GOP normalization of violence.

          The Republican National Committee described the events of January 6th as “legitimate political discourse.” Georgia Rep. Andrew Clyde said that video of the attack on the Capitol looked like “a normal tourist visit.” Mike Pence, whom rioters wanted to hang, said on Monday that Democrats were using the January 6th hearings “to distract attention.”

          Republicans are understandably ashamed that the leader of their party incited an assault on the Capitol to interrupt a constitutional function of Congress. In attempting to excuse Trump’s criminal conduct, they are forced to minimize and dismiss the widespread violence that occurred during the assault. In doing so, they are normalizing and legitimizing violence as political tool.

          On Monday, a disgraced GOP former governor from Missouri took the hint and published an advertisement that declared “open season” on RINOs—Republicans in name only. The ad shows a group of paramilitary MAGA members bursting into a house with assault rifles drawn. The tagline for the ad says, “Join the MAGA crew, get a RINO hunting permit!” See The Independent, Facebook takes down ad of Republican Senate candidate going ‘RINO’ hunting.

          The implication is obvious: Greitens is calling for MAGA supporters to use violence to attack moderate Republicans. So far as I can tell (and I hope I am wrong), no Republican leader has condemned Greitens. They must do so—and they must force him out of the Missouri race for US Senate. Unless Republicans act decisively, their normalization of violence will move towards its horrific logical conclusion—a political leader will be assassinated by someone who believes that violence is a legitimate political tool. Time is running out for Republicans to make clear that violence is never acceptable.

Concluding Thoughts.

          I received an email from a reader who suggested that I address Biden’s low favorability ratings on a more consistent basis. He felt that by not talking about Biden’s poor polling, I was reinforcing the media narrative that Democrats are in trouble in 2022 because of Biden. He disagrees with that media narrative, as do I. Let me be clear: I believe that Democrats can maintain control of the House and Senate in 2022 and win the presidency in 2024—regardless of Biden’s favorability ratings.

          Let me quickly recap my discussion of Biden’s decline in favorability in prior newsletters. Joe Biden is the vessel into which Americans pour their discontent during a time when seemingly intractable problems beset us from every side. I believe Biden’s low favorability ratings reflect how people feel about their lives and about forces beyond their control. People naturally feel bad when they lack control over their lives.

          Those feelings may indeed affect behavior in the polling booth. Or not. Biden is not on the 2022 ballot. If pundits want to argue that Biden’s unpopularity will affect the 2022 races despite Biden’s absence from the ballot, they must also grant that other issues not on the ballot—abortion, gun control, the rule of law, LGBTQ rights, Medicaid expansion, Medicare benefits, student loan forgiveness, environmental protection—will likewise affect the 2022 races. Democrats are on the right side of each of those issues.

          The reader makes the point that the 6-point increase in support for indicting Trump demonstrates that there are persuadable Democrats and Independents who can push Democrats to victory in 2022. The reader notes that the 6-point swing represents between six to nine million Americans whose minds changed because of the January 6th hearings. The reader writes, “This recent poll data also shows that the claim there are no persuadables is not merely false but poppycock.”

          Again, I agree. (If I didn’t, I wouldn’t write this newsletter every night.) I believe that there are enough persuadable Independents to allow Democrats to win. Yes, we have messaging challenges, but there is a 50-50 chance that by the time you read this newsletter, the Supreme Court will have abolished a right that belonged to 135 million women when I wrote the newsletter. If that doesn’t motivate tens of millions of women (and new voters), nothing will.

          Here’s the point: I am not avoiding discussing Biden’s low favorability ratings because I think they are bad news. I just don’t think they are determinative of the 2022 outcome in the way posited by political commentators. The most pernicious effect of Biden’s polling is that it may cause some Democrats to give up and stay home. That would be a tragic outcome.

          So, go to the polls regardless of Biden’s favorability ratings. We can win even if Biden’s favorability ratings continue to reflect anxiety and disappointment with the state of the world. We can win in 2022; don’t let anyone tell you otherwise!

          Talk to you tomorrow!