Trump's Criminal Docket

February 10, 2022

[Audio edition here]

          New reports of criminal activity by Trump and his campaign continue to emerge every day. Exposing Trump’s criminality is good—but not enough. The DOJ must actually prosecute some of the crimes committed by Trump. Let’s look at the latest and then consider the cornucopia of crimes from which Merrick Garland can pluck the ripest fruit.

          On Wednesday, the National Archives asked the DOJ to consider the circumstances surrounding the removal of fifteen boxes of documents from the White House to Mar-a-Lago at the end of Trump’s tenure. All of the documents are records that belong to the public under the Presidential Records Act. If their removal was willful, that is a felony. But if Trump removed classified documents from the White House, that could raise issues beyond the Presidential Records Act. See The Washington Post, National Archives asks Justice Department to investigate Trump’s handling of government records.

          The Washington Post has also reported that Rudy Giuliani asked a Michigan prosecutor to “turn over” voting machines from Antrim County, Michigan. Antrim County was the site of a flawed election count in 2020 because the county clerk— a Republican—failed to update voting machines to reflect last-minute changes to the ballot. The mistake was corrected before Michigan’s vote was certified, and the county clerk said that the error was an honest mistake that she “owned, acknowledged and accepted.” But Giuliani seized on the mistake as proof of massive fraud.

          Whatever the circumstances of the mistake, neither Giuliani nor the county prosecutor had any authority to turn over voting machines to the Trump campaign. Though Giuliani failed in his effort, the attempt to seize machines that contained voting records may have been a felony. See DOJ, Justice Department Guidance on Federal Statutes Regarding Voting Methods and Post-Election “Audits”. (“Section 301 of the [1960 Civil Rights] Act requires state and local election officials to “retain and preserve” all records relating to any “act requisite to voting” for twenty-two months after “any general, special, or primary election” . . . for “President, Vice President, [or] presidential elector.”)

          I could go on, but you get the point. Indicting Trump for running the criminal enterprise known as The Trump Administration should be like falling off a log. But for reasons that confuse and concern almost everyone, the DOJ is apparently not moving forward with any criminal investigation of Trump—despite Merrick Garland’s assurances otherwise. Let’s set the attempted coup aside for a moment—a public crime that deserves immediate prosecution. What about the 2016 campaign finance violation in which Trump is an unidentified co-conspirator—a crime for which Michael Cohen went to jail? And what about the attempt to extort Ukraine by withholding $400 million of military aid to gain political advantage over Biden? And what about the dozen instances of obstruction of justice identified in the Mueller Report?

          Garland may have concluded that none of those many crimes deserve to be investigated or prosecuted. If so, he should tell the American people. As Randall D. Eliason has noted in his op-ed in WaPo, the statute of limitations will expire on February 14, 2022, on the first instance of Trump’s obstruction of justice. (Asking FBI Director James Comey to drop his investigation into Michael Flynn and instead investigate journalists who were using confidential sources.) See Randall D. Eliason, Yes or no on Mueller report criminal charges? Don’t let Trump just run out the clock. As Eliason writes,

          A decision not to prosecute Trump for obstruction may be defensible. But if that’s the decision, the Justice Department should defend it. It shouldn’t leave the country wondering whether it just ducked the issue by allowing Trump to run out the clock.

          It is no excuse that Garland “has a lot on his plate.” So stipulated. But that does not justify the absence of progress on any of the dozens of indictable offenses committed by Trump. And the complete silence from the DOJ is not proof that Garland is “putting together an airtight case” as some readers frequently remind me. The absence of evidence is not evidence—except when we know that every investigation leaks into public view when subpoenas are issued and witnesses are interviewed. In this case, the absence of evidence is proof that Garland is doing nothing to investigate Trump. Readers frequently cite the investigation by the House Select Committee and investigations by state attorneys general as proof that Garland is doing something. Of course, that argument is a non sequitur.

          Time is running out on the ability to prosecute Trump for his crimes. Taking time to put together a case is reasonable and understandable. Allowing the statute of limitations to expire is malfeasance. At this point, Garland’s inaction is Joe Biden’s responsibility. If Merrick Garland is not up to the job of prosecuting a man who has publicly committed a half-dozen felonies, Biden should appoint someone who is up to the task. The American people—and the Constitution—deserve nothing less.

          As always, I hope that I am stupendously wrong in my assessment of Merrick Garland and that I will be forced to issue a humiliating apology. I will do so if and when Garland announces the first felony indictment of Trump.

Things are bad in the GOP. How bad? So bad that Fox News won’t talk about it.

          Things are so bad within the GOP that Fox News has simply refused to mention the most recent series of controversies tearing at the seams of the party. Per Media Matters,

Prime-time stars Tucker Carlson, Sean Hannity, and Laura Ingraham, and popular right-wing hosts like Jesse Watters, Dan Bongino, and the panels of Fox & Friends . . . have not mentioned either Pence’s speech or the “legitimate political discourse” debacle. None of these GOP stalwarts is coming to the defense of Trump or Pence, or championing or condemning the RNC for its support for insurrectionists.

          The bad news for the GOP is that the bad news will keep getting worse. The RNC made an irredeemable mistake that will stalk every GOP candidate through 2024. The entertainers posing as journalists at Fox News can’t defend the “legitimate political discourse” phrase because advertisers simply don’t want to be associated with the controversy. Indeed, as described in the Media Matters article linked above, the silence of Fox personalities on the debacle may reflect nervousness about the impending “upfront meetings” in March. At those meetings, Fox will try to convince insurance companies and drug manufacturers that the Fox platform is a friendly, controversy-free space for selling their wares.

          As reported by the New York Times, the “legitimate political discourse” language was drafted by a Trump surrogate and inserted into the resolution at the last minute. That phrase will remain an albatross around the neck of the GOP forever because Trump will not allow the RNC (or any Trump-endorsed candidate) to disclaim the phrase. Worse, the price of a Trump endorsement is a reciprocal endorsement of the Big Lie in all its glory. That dynamic is driving GOP candidates seeking Trump’s endorsement to ever more ludicrous positions that are beyond the pale for even for MAGA diehards.

          For example, a GOP candidate for Secretary of State in Arizona introduced a bill that would “decertify” Arizona’s electoral votes for Biden in 2020. The move achieved its intended effect—the candidate received an immediate endorsement from Trump. Two hours later, the GOP Speaker of the Arizona House, Rusty Bowers, took action to kill the bill. Bowers said (sarcastically),

Mr. Finchem’s obviously unconstitutional and profoundly unwise proposal will receive all of the consideration it deserves.

          As always, we cannot rely on Republicans to defeat themselves. But Democrats should be relentless in taking advantage of these self-inflicted wounds and the boundless depravity of Trump. If the GOP has crowned Trump king, we must make them own every vile, undemocratic, delusional statement he makes. And then we must explain to all Americans why the Democratic agenda for America will make them safer, healthier, more secure, and more prosperous.

Need some inspiration? Check out New Faces of Democracy.

          After Trump’s accidental victory in 2016, hundreds of thousands of citizens were motivated to become involved in political activism. At the time, most of them believed they were taking small, ordinary steps into civic engagement. But many were setting out on life-changing journeys to defend democracy. Their stories are inspiring and uplifting. Nancy Bynum has documented some of those journeys in interviews that are posted at New Faces of Democracy. If you need a “pick-me-up” or want to see how other activists have endured and succeeded, check out the website.

          I will be interviewing Nancy Bynum this Saturday at 2:00 PM Eastern / 11 AM Pacific on Today’s Edition Podcast with Robert Hubbell. Join us live by downloading the Callin app from the Apple Store (Android version coming soon).

Concluding Thoughts.

          Writing this newsletter on a daily basis is a lot of work—and a labor of love. One of the benefits is that I get to hear from readers every day. Those emails are almost always uplifting and affirming, but I don’t have the time or space to share every story with you. But this one is worth sharing: Earlier in the week, I put out a call for volunteers to serve as poll observers, and I published contact information for several groups. One of the groups was overwhelmed with volunteers—in a good way. The response was so strong that the organization is accelerating its planning for the deployment of poll observers. That is a good news story all around.

          But the part of the story that inspired me is this: It reminded me that people are eager—even desperate—to help in any way they can. They are looking for direction and opportunities to channel their enthusiasm, anxiety, and frustration into something productive. That pent-up desire to help defend democracy should give us confidence and hope about the future. But it is also a challenge. We need leaders who can organize and direct the millions of Americans who are ready to do their part now to protect the rule of law. If you have been waiting for the right moment to step forward, now is the time. Do your part—your nation and your fellow citizens are waiting for you!

          Talk to you tomorrow!