As expected, the Manhattan District Attorney obtained indictments against the Trump Organization and its CFO, Allen Weisselberg. The indictments will be unsealed on Thursday, when Weisselberg surrenders for arraignment. See CNBC, “Trump Organization and its CFO indicted by Manhattan grand jury.” The indictments apparently allege that the Trump Organization granted fringe benefits to Weisselberg that were not properly disclosed on the respective tax returns for the Organization or Weisselberg. It remains to be seen whether the original indictments will be superseded with new indictments that charge more serious crimes or add defendants.
In response to my discussion in yesterday’s newsletter about the impending indictments, a reader sent a thoughtful comment about the need to ensure that prosecutions are not motivated by partisan animus. Many former prosecutors and tax lawyers took to the airwaves on Tuesday to say that they had never seen a prosecution over failure to report fringe benefits. As the reader noted, a partisan prosecution will undermine the public’s trust in the rule of law and cause Republicans to dismiss the seriousness of the charges. Fair points, all. But I do not believe that in this instance that the prosecution of the Trump Organization or Weisselberg should be viewed as a “partisan” prosecution. Nor do I believe that the prosecutor’s judgment to bring the charges should be swayed by potential blowback from Trump’s GOP apologists.
As to blowback from Republican defenders of Trump, remember that time when Trump tried to bribe Ukraine to fabricate falsehoods about Biden and only ten Republicans in the House voted to impeach Trump? Whether Trump is indicted for murder or tax evasion, Republicans will claim that any prosecution is unfair because it is directed at Trump. And what, exactly, are Republicans going to say? That it is okay to cheat the government if it only involves several hundred thousand dollars? Or that the District Attorney shouldn’t indict Trump unless he also indicts everyone else who cheats on their taxes? Both arguments are ineffectual and offensive, especially to people who pay their taxes.
I don’t agree with the statements by the former prosecutors and tax attorneys who claim the crimes charged are not worth pursuing because they relate to fringe benefits. The IRS pursues small business and individuals every day for amounts that are a fraction of the fringe benefits that the Trump Organization paid to Weisselberg under the table. The fact that the undeclared income relates to fringe benefits as opposed to underreporting payroll taxes or tips to waiters and waitresses is a meaningless distinction from an enforcement perspective.
Finally, the Trump Organization seems to fit the definition of a criminal enterprise. History is filled with criminals who got away with literal and metaphorical murder but were convicted of tax fraud. Ask Al Capone and Spiro Agnew. If the Trump Organization goes down for underreporting fringe benefits to its CFO, so be it. That may not be the worst crime the Trump Organization has committed but may be the easiest to prove. The decision to prosecute a business for intentionally underreporting salary paid to employees is a reasonable exercise of prosecutorial discretion. It is not any less so because that judgment relates to Donald Trump.
South Dakota Governor’s Inappropriate Use of the National Guard
South Dakota Governor Kristi Noem has dispatched 50 National Guard troops to help “defend” the U.S. border in Texas. The decision is legally dubious and objectively wrong. It is true that National Guard troops can be activated by a governor for state emergencies and disaster relief. Defending an international border is not within the authority of National Guard when they act under state authority, as opposed to federal authority. Noem’s activation of the South Dakota National Guard is a political stunt to promote her 2024 longshot bid for the presidency. But that stunt moves into dangerous territory when a private citizen pays for the deployment of the National Guard—which is exactly what Noem has arranged. See Politico, “Rep. Adam Smith pushes back against private funding for National Guard deployment.”
By resorting to private funding for deployment of troops that serve under the dual jurisdiction of the state and federal governments, Noem has moved toward the privatization of state militias. That is the stuff of failed states in which rival warlords vie for power with private armies. See Talking Points Memo, “GOP Prez Primary Race Moves into State Militia Rental Phase.” Joe Biden is the Commander in Chief of the military, which includes the National Guard. Biden and the Secretary of Defense, Lloyd Austin, should both direct the South Dakota National Guard to remain in their barracks when they report for duty.
Misinformation relating to coronavirus Delta variant.
Right-wing media is spreading misinformation about the Delta variant of the coronavirus. I won’t amplify that disinformation by providing a link, but the false claim is that people vaccinated with Pfizer or Moderna are more likely to die from Covid19 than unvaccinated people. The claim traces to raw data published in the U.K. regarding Covid deaths. Right-wing “journalists” whose only training in statistics is the ability to add, subtract, multiply, and divide have grossly misrepresented the data. So, if you see such a claim, don’t believe it. Statisticians who have looked at the U.K. data say that for vaccinated people, “the lethal risk is reduced to less than a twentieth of its usual value.” See The Guardian, “Why most people who now die with Covid in England have had a vaccination.” See also, Business Insider, “Vaccinated people are dying from the Delta variant, but in small numbers and almost all are over 50, UK data shows.”
Calculating virulence is a difficult and complicated exercise. See The Atlantic, “Why a Variant’s Deadliness Is So Hard to Define.” Setting aside statistical arguments, we can look at hospitals and emergency rooms to see the difference the vaccines have made. See AP, “Nearly all COVID deaths in US are now among unvaccinated.” Of course, viruses mutate constantly, so conditions may change with more data—and we should be open to wherever the science takes us.
The battle over Bill Barr’s legacy.
Bill Barr granted an interview to Jonathan D. Karl of The Atlantic as part of his effort to rehabilitate his damaged reputation. See “How Barr Finally Turned on Trump.” The interview was Barr’s attempt to portray himself as a courageous insider who prevented Trump from acting on his worst impulses. Surprisingly, Barr’s efforts are gaining traction. I confess that I am befuddled by the willingness of Barr’s former critics to give him a pass so easily. He may have finally refused to cross the line when the line was helping Trump with a coup d'état, but that is hardly reason to forgive Barr’s consistent disregard for the rule of law that preceded his last-minute change of heart.
The latest former Trump critic to come to Barr’s defense is Max Boot in the Washington Post, “Opinion | Bill Barr and other MAGA defectors are heroes for telling the truth about Trump.” Read Boot’s essay if you are inclined, but here is his thesis: “In my opinion, their decisions to break ranks are heroic, but many progressives insist they’re as villainous as ever.” Count me among those who insist that Barr is no hero and is as villainous as ever.
Max Boot’s “forgive-and-forget” approach is profoundly, deeply misguided. Bill Barr did serious damage to the rule of law. It is not enough for him to spin stories of how he secretly stood up to Trump when public opposition was demanded. If Barr wants forgiveness, he must make amends by helping to repair the damage he inflicted. He weaponized the Department of Justice in service of Trump’s political vendettas. He lied about the Mueller Report. He authorized criminal investigations of FBI and DOJ professionals who investigated Russia’s interference in the 2016 election. He said that Obama “spied” on Trump’s campaign. He promoted falsehoods relating to election fraud. If there is no consequence for Barr’s wrongful conduct, there will be no reason for future Attorneys General to serve the Constitution rather than the President.
Trump is still spreading the lies that Barr helped him promote until the very end of Barr’s tenure. If Barr wants to repair the damage that he helped inflict, he can begin by telling the American public now that Trump’s current lies are baseless. That would be a good start on making amends, though still far from heroic.
Concluding Thoughts.
We cannot lose our capacity for outrage. It is exhausting, I know. But private militias and tax fraud and saying that Obama “spied” on Trump’s campaign and that Robert Mueller exonerated Trump are outrageous. If we come to accept those acts as normal, we are lost. We must continue to care, even though it is hard. Democracy is worth the effort.
Talk to you tomorrow!
Thank you, Robert Hubbell, for keeping outrage fresh. Barr is a slimy customer, Gov. Noem makes Sarah Palin seem innocuous by comparison, and tax fraud is one of the most despicable roots of income inequality. Every day is a new assault on our credulousness, and we need your help to see it clearly.
Yes keep on keeping outrage front & center. Although, the constant need for repetition dulls the brain. Really hoping our Democracy thrives & we all move forward. Thanks for your work!