Today’s Edition: “I did it. So what?”

July 6, 2021

          Former President Donald Trump frequently resorted to an audacious defense when charged with criminal or constitutional misconduct during his tenure: “I did it. So what?” He adopted that defense in the Ukrainian “arms-for-political-dirt” bribery scheme that led to his first impeachment. See Business Insider, “Trump Admits to Ukraine Military Aid Quid Pro Quo on Live TV.” Republicans who were initially alarmed over Trump’s use of U.S. military aid as a personal political chit yawned dismissively when Trump admitted that he was “guilty as charged.” Trump’s admission allowed Republicans to argue that since an election was only a year away, America should endure another year under an admittedly corrupt president and give the electorate the opportunity to oust Trump. Thankfully, they did.

          The Manhattan District Attorney has indicted the Trump organization for compensating its CFO under the table by providing benefits in the form of free cars, apartments, and tuition for his grandchildren—none of which were declared as salary by the CFO. The Manhattan D.A. has strong evidence that the Trump Organization engaged in the practice and knew it was wrong. Faced with overwhelming evidence of guilt, Trump took to the road over the 4th of July weekend to say, “Yeah, I did it. So what?” Trump said,

          You didn’t pay tax on the car or a company apartment. You didn’t pay tax [for] education for your grandchildren — I, don’t even know what do you have to put? Does anybody know the answer to that stuff?

          Yes, Donald, someone does “know the answer to that stuff,” including the IRS, your tax lawyers, your CFO, and the Manhattan District Attorney. Admitting that Weisselberg and the Trump Organization “didn’t pay tax” concedes essential elements of the crimes alleged against the Trump Organization and its CFO. And if Donald Trump didn’t make it clear enough that both were guilty, Don Jr. removed all doubt when he said,

          [The prosecutors] say he didn’t pay taxes on $1.7 million over 16 years, that’s the New York state 8% of that, $136,000. Half of that was because my father paid for his grandchildren’s school . . . .

          Yes, Don Jr.! That is the prosecutor’s point exactly! By paying for Weisselberg’s grandchildren’s tuition but not reporting that as compensation, both the Trump Organization and Weisselberg committed a crime. If you can understand that point, your family’s company and its CFO don’t stand a chance before a jury. They should plead guilty now and spare everyone the time and expense of a trial. Of course, that would hasten the day when your father and other family members may be charged with the same crimes. See HuffPo, “Pay Arrangement Named In Trump Org Indictment Linked To Ivanka Trump.” (“[B]oth New York City and state investigators had issued subpoenas last year for information on tax write-offs for “millions of dollars of consulting fees” paid to [a] limited liability company set up for Trump’s eldest three children.”)

          The tax schemes alleged in the indictment against the Trump Organization and Weisselberg are serious, as explained by Daniel Shaviro in Just Security, “The Weisselberg Indictment Is Not A “Fringe Benefits” Case.” Shaviro is a Professor of Taxation at NYU School of Law. Shaviro provides a helpful analogy:

          Suppose that your employer pays you monthly, through automatically deposited paychecks that end up being included on your annual W-2. But suppose that each month you could stop by the front office, request an envelope full of cash in unmarked bills, and have your W-2 reduced accordingly.

          In Shaviro’s example, the W-2 income would be underreported by the amount of cash in the envelopes collected each month by the employee. In the same way, Weisselberg’s reported income was understated by the fringe benefits that reduced his reported income. And the Trump Organization and Weisselberg kept meticulous records of the “off-the-books” compensation that was not included in his reported income.

          Here’s my point: Trump and his family have adopted the attitude that, “Of course everyone cheats on their taxes this way.” No, they don’t. But Republicans are prepared to yawn once again in the face of a Trump admission of guilt and pretend that it doesn’t matter when the leader of the Republican Party admits and excuses criminal violations of the tax laws. When Republicans run for election in 2022, Democrats should force them to embrace or condemn Trump’s tax evasion. One thing that hard-working Americans can understand is when rich people claim that they don’t have to follow the same rules as “the little people.”

John Roberts Achieves Lifelong Goal

In last Thursday’s decision in Brnovich v. Arizona Chief Justice John Roberts achieved a lifelong goal: Undermining Section 2 of the Voting Rights Act by limiting the so-called “effects test” for proving a violation of Section 2. That section prohibits “abridg[ing] the right of any citizen of the United States to vote on account of race or color which prohibits” by imposing any “standard, practice, or procedure” that result in the denial of the right to vote. For more than forty years, courts and Congress have tussled over what standard of proof was necessary to establish a violation of Section 2. When John Roberts was a newly admitted lawyer serving in the DOJ during Ronald Reagan’s presidency, Roberts set out on a lifelong crusade to make it more difficult to prove a violation of Section 2. See Politico, “Inside John Roberts’ Decades-Long Crusade Against the Voting Rights Act.”

          The details are too complicated to cover here, but in a nutshell, Roberts has always argued that it is not enough to prove the discriminatory result of voter legislation. Instead, in Roberts’ view, plaintiffs must prove discriminatory intent. (That is an oversimplification; for a more detailed explanation, see the Politico article, above.) As a young lawyer, Roberts was aghast when Congress passed an extension of the Voting Rights Act that included a “results” test for determining violations of the VRA. In 1982, Roberts wrote a memo to Attorney General William French Smith in which he asserted that most members of Congress simply didn’t understand what they were voting for when Congress included the “results” test in the 1982 extension of the VRA. See Memo from John Roberts to Attorney General dated January 26, 1982, “Talking Points for the White House on the Voting Rights Act.”  John Roberts lost his battle in 1982. Last Thursday, he regained much of that ground—and achieved a life-long goal of weakening Section 2 of the Voting Rights Act.

          John Roberts has portrayed himself as an objective jurist who is not imposing his personal political philosophy in his jurisprudence. That portrayal is untrue. A reader sent the following note over the weekend that expresses this point clearly:

          John Roberts may have claimed during his confirmation hearing that the role of a SC Justice is merely "to call balls and strikes", but the more I read about his pre-court attempts to weaken the 1965 VRA (since his time of service in the Reagan Administration) and the more I see how his court has wielded a veritable wrecking ball to the VRA, I cannot help but feel that he is a "wolf in sheep's clothing"--whose agenda is to promote as white an electorate as possible, in the guise of "neutral" and dispassionate rulings.

         Unlike Scalia or Thomas, who were/are more blunt in their anti-democratic rulings, Roberts has feigned being a center-right conservative in many of his decisions--but when it comes to an area as sacred as protecting the Franchise of the Right to Vote, and respecting the clear will of near unanimous Congresses in passing and renewing the VRA, he has done more damage to the VRA as Chief Justice than any other justice in the past 60 years.

          John Roberts’ legal philosophy was deeply influenced by former Chief Justice Rehnquist, whose views on race were among the most regressive in the modern era. See Jerome McCristal Culp, Jr., “Understanding the Racial Discourse of Justice Rehnquist,” 25 Rutgers Law Journal 597-620 (1994). Though Chief Justice Roberts has been more articulate and nuanced in expressing his views than was Rehnquist, the result is the same: Legislation that disproportionately impacts minority groups is an acceptable exercise of state power. As expressed in Brnovich, a law that disenfranchises only 0.5% of a particular minority group does not violate Section 2 of the VRA. In a close election, 0.5% of votes cast by Black voters is outcome determinative—which is exactly why Arizona, Texas, South Carolina, and Georgia want to disenfranchise Black voters.

           With apologies for an overly long discourse on John Roberts’ legal philosophy, my point is this: Voting rights are in grave danger in the Roberts’ Court. There are a handful of remedies available, but almost all of them begin with eliminating the filibuster. To do so, Democrats must gain a margin of control that overwhelms the reluctant Democrats who exalt Senate rules over the most fundamental of all rights. That may take some time, but we must be single-minded in pursuing that goal. John Roberts waited forty years to achieve a goal that he articulated in his 1982 “talking points memo” to Attorney General William French Smith. We must be as disciplined and determined as Roberts. We can do that—if we choose.

Concluding Thoughts.

Based on what I am hearing from readers, the news over the last several months has been frustrating, perhaps to the point of dispiriting. After an initial sprint in the first 100-days, the Biden administration is dealing with the reality of its razor-thin margins in Congress. The main obstacles to progress appear to be so-called moderate Democrats who talk about bipartisanship but who have thus far delivered only contingent promises of future cooperation from unreliable Republicans. The 2022 elections are close enough be anxiety-inducing, but far enough away for Democrats to feel that they lack a clear message and messenger. That feeling is understandable. We will pass through the political doldrums soon enough; in the meantime, stay engaged and remain optimistic. Politics is a long game, so let’s not fret over temporary setbacks or delay.

          Talk to you tomorrow!