Standing up to Trump's political terrorism.

August 18, 2023

          Trump knows that a jury of his peers will convict him in a fair trial. He has therefore resorted to extra-judicial efforts to intimidate and prejudice the jury pool. His efforts are not only extra-judicial, they are undemocratic, thuggish, and illegal. Like a crime lord with feral instincts, Trump knows how to threaten without threatening and brutalize without leaving fingerprints at the scene of the crime. Instead, he grants permission to his followers to violate laws and norms, encouraging them to do the dirty work necessary to defend the indefensible.

          Over the last several days, the breadth and viciousness of Trump’s assault on the legal system became manifest as MAGA extremists attacked the judge and jurors in Trump's various criminal proceedings. Before reviewing the latest insults to the rule of law, let’s skip to the end to discuss the solution: We must recognize that Trump is engaged in political terrorism designed to frighten good people who are the backbone of democracy. We cannot let that happen. The solution is not to shrink in fear, but to swell in numbers, strengthen our resolve, and dispel the exaggerated fears created by a skulk of cowards who hide in internet shadows.

          In America, there is an ever-present risk of violence that cannot be entirely dismissed. Law enforcement and prosecutors should, therefore, vigorously pursue and prosecute the small, frightened, impotent cultists who threaten jurors, judges, and prosecutors. But we must recognize that the business model of political terrorism is for a few individuals to instill outsized and unwarranted fear in the masses. Recognizing that truth should allow us to keep in perspective the fact that a few thousand online pseudo-terrorists vanish to nothingness compared to 335 million Americans.  

          America is bigger than Trump and his minions. We should not cower in fear but should pursue justice with confidence and righteousness. We are protecting the Constitution and our system of laws. We cannot fail in that task—and there is nothing that cowards with keyboards can do to deter us.

          Against that background, let’s look at the events on the ground.

          Abigail Jo Shry of Alvin, Texas, threatened Judge Tanya Chutkan in a voicemail message that began with racial slurs and ended with threats of violence. Shry was quickly questioned, arrested, and charged in federal court. The magistrate ordered that she remain in pretrial detention for at least 30 days pending a determination of her danger to the community. That is type of federal response that will deter future threats.

          At Shry’s detention hearing, her father provided background on Abigail Shry’s threats:

Her father, Mark Shry, testified at her detention hearing and said his daughter is a “non-violent alcoholic,” according to the court filing. [Her father] testified, “that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them.” Her father said, “his daughter never leaves her residence and therefore would not act upon her threats.”

          There have also been threats against members of the Fulton County grand jury that indicted Trump and eighteen other defendants on RICO charges. See NYTimes, Officials Investigate Threats Against Trump Grand Jurors in Georgia (accessible to all). The Fulton County sheriff issued an anodyne statement acknowledging the threats and stating that the sheriff was investigating. (The statement said the sheriff was “aware of online threats against grand jurors and was working with other agencies to track down their origin.”)

          A stronger statement from the sheriff and the quick arrest of several perpetrators would go some distance to damping the false bravado of other beer-fueled couch terrorists. A stronger reaction is necessary because the online threats are directed not only against the grand jurors, but future jurors who will preside over Trump’s criminal trials.

          But there is more.

          Trump released a video in which he attacked special prosecutor Jack Smith as a “deranged lowlife” for obtaining Trump's Twitter feed. See Forbes, Trump Attacks Jack Smith For Gaining Access To His Old Twitter Account. This is the type of statement that should cause Judge Tanya Chutkan to remand Trump into custody. At the very least, the statement should be added to the list of offenses that will finally cause Trump to be detained pending trial.

          Detaining Trump before tria is not only inevitable but also necessary. Trump's continued attacks are having a corrosive effect that seeps into the nooks and crannies of the justice system everywhere. Many readers have commented on the raid on a Kansas newspaper because of efforts by the newspaper to report on the failure of local police to enforce DUI laws against a local businessman. Based on a questionable search warrant issued by a local magistrate, police seized computers, cell phones, and files—a gross violation of federal protections granted to members of the news media.

          The public outcry and obvious illegality of the seizure forced the police to return the seized items and the local prosecutor to withdraw the questionable warrant due to 'insufficient evidence’. But the question remains, “How could this happen? How is it that local police and magistrate could ignore constitutional and statutory protections for the press?” Some of the sordid answers are detailed in this investigative piece by The Wichita Eagle, Judge Laura Viar, who approved newspaper raid, has DUI arrests.  

          Apart from the local magistrate’s questionable potential bias due to her own history of DUI troubles, another answer is that the police and magistrate are modeling themselves after a national GOP in which the rule of law is an impediment to power. In short, they thought they could get away with trampling the Constitution. Fortunately, they were wrong—and will likely be charged with crimes and serve time in jail. As should Trump.

          If Americans see that Trump is punished for his attacks on the justice system pending trial, others will realize that they, too, must respect the justice system. We owe the Constitution nothing less.

Understanding the Georgia indictment.

          If you are confused about the Georgia indictment’s use of “overt acts” and “predicate acts,” welcome to the club of almost everyone who has read (or not read) the indictment. Criminal defense attorney Ken White explains the distinction in his essay in Popehat, “Overt Acts and Predicate Acts, Explained (substack.com).

          White’s essay is worth reading because of its lucid explanation of the RICO requirements under Georgia law, but also because he criticizes the sweep of the indictment. He does so from the perspective of a criminal defense attorney. While I don’t agree with White’s criticism of the indictment, I respect what he has to say and appreciate his perspective.

          Getting back to “overt acts vs. predicate acts,” White gives a lengthy and scholarly explanation, which includes the following snippets:

[Y]ou can think of an overt act as a sort of evidentiary requirement, and overt acts as evidence of a criminal conspiracy, not as the crime themselves.

Once you view overt acts as a sort of evidence, it’s easier to see why they don’t have to be crimes themselves, and why they can even be acts that would otherwise be not only legal but protected speech.

The Georgia RICO act makes it illegal to engage in a “pattern of racketeering activity.” That’s defined elsewhere as committing two or more crimes from a list of specified crimes. So, that list in the indictment reflects things that are just overt acts, and things that are identified as specific crimes constituting acts of racketeering and that are also overt acts.

          So, in short, overt acts are evidence of the conspiracy that need not be crimes, while predicate acts are crimes (and there must be two of them under Georgia RICO law). But overt acts can also be crimes. And the indictment lists the overt acts and predicate acts (crimes) as part of the same chronological explanation. White concludes,

So: that’s how, in charging a conspiracy to violate Georgia’s RICO statute, you wind up with a list consisting of both specific alleged criminal acts and mundane acts, including acts otherwise protected by the First Amendment.

          There is much more to White’s analysis, but I hope the above his helpful in understanding why the Georgia indictment feels so complex—and why some commentators have criticized it as such (not including me).

More on the mifepristone decision by the Fifth Circuit.

          I noted yesterday that the Fifth Circuit upheld portions of Judge Kacsmaryk’s ruling ordering the FDA to withdraw its approval of mifepristone. I discussed the bogus standing claimed by the anti-abortion advocacy group of doctors who speculated about future overcrowding in emergency rooms based on complications of mifepristone. Several readers commented on Heather Cox Richardson’s discussion of the concurring opinion of Judge James Ho, one of the three members of the 5th Circuit panel that upheld Judge Kacsmaryk’s ruling. See August 16, 2023 - by Heather Cox Richardson (substack.com).

          Professor Richardson explains Judge Ho’s concurring opinion (in part) as follows:

[According to Ho], doctors also experience an aesthetic injury when patients choose abortion because, as one said, “When my patients have chemical abortions, I lose the opportunity…to care for the woman and child through pregnancy and bring about a successful delivery of new life.”

          Judge Ho’s bizarre legal theory descends into insulting and offensive language that, as explained by Professor Richardson, illustrates “how Trump Republicans think about women.” I recommend Professor Richardson’s commentary to your attention.

          The theory of standing accepted by the Fifth Circuit panel appears at pages 14-15 of the opinion (which is HERE) and does not include Judge Ho’s “aesthetic injury” theory of standing (which begins on page 67 of the opinion). Judge Ho wrote only for himself; the other judges on the panel did not join in his concurrence. In other words, Judge Ho’s speculative “aesthetic injury” was too outlandish for the other judges on the panel who espoused other outlandish theories of standing.

          Judge Ho relies on environmental conservation cases to graft the “aesthetic injury” notion into the abortion context. Ho writes,

It’s well established that, if a plaintiff has “concrete plans” to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. See Lujan, 504 U.S. at 564

          The point is this: Judge Ho’s use of the environmental concept of “aesthetic injury” in the abortion context is farcical, insulting, and a shameless exercise in bad faith. Will the Supreme Court adopt the standing analysis of either Judge Ho or the majority opinion in the Fifth Circuit case? Court observers believe not, but there are no guarantees. And if the Supreme Court affirms the Fifth Circuit ruling, the Court will effectively “nationalize” abortion bans by judicial fiat—the polar opposite of Justice Alito’s claim that Dobbs was returning the decision “to the people’s representatives.” Yet another reason why reproductive liberty is on the ballot in 2024.

Markers for Democracy events.

          Three organizations that are great friends of the newsletter are holding two events on Friday that should be fun and inspiring. Ellen Bender invites you to attend in the following note:

I wanted to let readers know that Markers For Democracy, Downtown Nasty Women, and Team Min have two great guests on Friday morning. At 10:00 AM Eastern, we are hosting Ken Grossinger, whose recent book, ART WORKS: How Organizers and Artists are Creating a Better World Together, was published by the New Press in July 2023. See Art Works | The New Press. I heard Ken speak on a webinar with Rakim Brooks of Alliance for Justice and he was insightful and inspiring. Join here: Postcarding & Conversation with Ken Grossinger · Mobilize

At 11:00 AM Eastern, we hosting Zev Shapiro, the Harvard senior who founded TurnUp, a 501(c)(3) non-profit that has become the nation's largest youth-led voter registration and turnout initiative. About Us | TurnUp. Sign up here: Postcarding & Conversation with Zev Shapiro, Founder of TurnUp · Mobilize

We'll be writing postcards during the Zoom as we always do but you don't need to write postcards to join us. All are welcome!

Concluding Thoughts.

          They know. Ted Cruz, Lindsey Graham, Josh Hawley, Ron DeSantis, Tim Scott, Kevin McCarthy, and more. They all know that Trump is guilty. They know that he is a fraud and conman. They know he is a danger to the Constitution. They lie with aplomb on television defending Trump. But deep down, they remember their statements condemning him before they surrendered to him. They look in the mirror and know. They see the hollowness in their “made-for-tv” protestations of outrage and injury.

          Why does it matter that we know that “They know”? Because it frees us from wasting a single moment of anger or upset in response to their performative grievance. They know the truth and are attempting only to make it from one day to the next as the GOP crashes around their feet. They could walk away but choose not to. That is their problem, not ours. So, let’s be grateful for the fact that the wheels of justice are finally beginning to grind away at Trump—and not be distracted by the howls of protest coming from the GOP. We are winning. Let’s accept that fact and move forward!

          My wife and I are finally back in civilization after a week at our cabin. She has put together a relaxing slide show to help ease everyone into the weekend. See Sequoia Mountain Cabin Vacay! (everydaywithjill.com).

          I will be in touch tomorrow to open the Comments for the weekend.

          Have a good weekend everyone!