Trump’s enablers and apologists.

February 15, 2023

          For twenty-four hours after January 6th, 2021, Republicans experienced a spasm of regret and self-awareness that prompted them to condemn Trump’s incitement of the insurrection. Their temporary candor and momentary resolve quickly faded when they realized that Trump’s base would not abandon him. One by one, Trump’s critics reversed course. Some defended Trump, serving as apologists who sought to convince the American people that the violent insurrection was a simple misunderstanding by law-abiding, patriotic Americans. Others slipped away in silence, unwilling to draw Trump’s ire by speaking the truth to investigators and the public. But all serve as enablers whose post-insurrection actions advance a common goal: To protect Trump from the consequences of his crimes by concealing the facts, obstructing investigations, and obfuscating the truth.

          Tonight, three Trump enablers are in the news for their efforts to protect, excuse, or defend Trump from the consequences of his actions: Mike Pence, Evan Corcoran (a Trump attorney), and Nikki Haley (a 2024 GOP presidential contender). Let’s take a look at the most recent cohort of Trump advisers who inexplicably continue to protect a twice-impeached, corrupt, disgraced former president whose name will forever stain their legacies.

Mike Pence refuses to comply with a subpoena to testify before federal grand jury.

          Special counsel Jack Smith issued a subpoena to former Vice President Mike Pence, requiring him to appear before a federal grand jury investigating Trump’s efforts to overturn the 2020 presidential election. Politico reported that Pence would resist the subpoena by arguing that the “speech and debate clause” of the Constitution immunizes Pence from testimony before a grand jury regarding the count of electoral ballots. (“Senators and representatives … shall not be questioned in any other Place [than Congress about] “any Speech or Debate in either House.”)

          Pence’s refusal to testify before a federal grand jury is maddening on several levels.

• First, Trump did his best to help a violent mob in its effort to hang Pence on January 6^th. Most people would hold a grudge, but Pence is too focused on becoming president to allow something like an attempted extra-judicial execution to come between former friends.

• Second, Pence has already told his version of the events at issue for profit in his obligatory pre-presidential book.

• Finally, Pence is refusing to testify before a grand jury by invoking a privilege reserved for legislators even though he refused to testify before the January 6^th Committee on the ground that he was NOT a member of the federal legislature.

          Professor Laurence Tribe and former prosecutor Dennis Aftergut lay bare the cynical, hypocritical, and baseless ground for Pence’s objection to testifying before a federal grand jury in their article in Slate, Mike Pence’s real reason for challenging Trump special counsel subpoena. The article is worth reading in its entirety, but its thesis is that Pence will not prevail on his claim that he is protected by the speech and debate clause.

          Tribe and Aftergut note that the speech and debate clause will not protect anything that Trump said to Pence on, during, or after January 6^th because Trump’s comments do not constitute “speech or debate” in the House by a Senator or representative. That ground should be sufficient to dispose of Pence’s objections.

          But in a brilliant analysis by Aftergut and Tribe, they provide another devastating ground for rejecting Pence’s defense to the subpoena. They note that Pence resisted appearing before the January 6^th Committee by invoking the “separation of powers” doctrine, claiming that Congress could not compel a member of the executive branch to testify before Congress. So, which is it? Is Pence a “member of the legislature” entitled to the protection of the “speech and debate” clause, or is he a member of the executive who cannot be compelled to testify before Congress? As Tribe and Aftergut conclude:

What’s worse is that Pence is trying to have it both ways legally. . . . Heads, he wins; tails, the law’s search for truth loses. [¶] His purpose is transparent. It’s not to protect our legal institutions but to protect himself and his ambition to run for the White House. . . . [C]ount on Pence to produce high-minded public statements about how his only goal is to once again preserve and protect the Constitution. This time, don’t believe him.

          In the process of protecting his vanishingly small chance of becoming president, Pence is willing to frustrate the search for truth and insulate Trump from accountability for inciting an insurrection and attempting a coup. Pence peddles his high-minded, faith-based rationalizations while lying through his teeth about his motivations.

Special counsel Jack Smith invokes crime-fraud exception to compel Trump attorney Evan Corcoran to testify.

          Trump has somehow convinced a parade of attorneys to put their professional reputations on the line and engage in unethical conduct to protect his criminal conduct. The “body count” of attorneys who have been disbarred or are in the process of being disbarred seems to grow weekly. The latest fool to be duped by Trump is Evan Corcoran, an attorney who drafted a declaration signed by another Trump lawyer that falsely stated that Trump had returned all classified documents. Special counsel Jack Smith wants to know where Evan Corcoran obtained the information that “all classified documents had been returned,” and Corcoran is refusing to disclose that information based on the attorney-client privilege. See NYTimes, Prosecutors Seek Trump Lawyer’s Testimony in Classified Documents Case.

          In fairness to Corcoran, if a client instructs an attorney to refuse to testify about privileged communications, the attorney has no choice but to follow the client’s instructions. The bad news for Corcoran is that the statement that “all classified documents have been returned” is a statement of fact and was not made for the “purpose of providing or obtaining legal advice”—a foundational predicate for invoking the attorney-client privilege in federal court.

          Indeed, as former member of the Mueller team Andrew Weissman has pointed out, federal Judge Beryl Howell decided a nearly identical question in the Manafort prosecution. In that case, Manafort asserted the attorney-client privilege, an assertion that was overruled (in part) because the relevant communication from Manafort to his attorneys was made “with the expectation and understanding that the [attorney] would convey that information to the government.” See Order dated October 2, 2017, Misc. Action No. 17-2336 (BAH).

          The above background is important for two reasons:

• First, one way or another, Evan Corcoran will be compelled to identify who told him that all classified documents had been returned. (Hint: It was Trump).

• Second, special counsel Jack Smith is invoking the crime-fraud exception to overcome the assertion of privilege—which means that Jack Smith believes a crime was committed. (Hint: Obstruction of Justice, by Trump, in the parlor, with the pipe wrench.)

          Evan Corcoran could voluntarily testify in response to the grand jury subpoena because he knows that the information sought is not protected by the attorney-client privilege. But like our other subjects of today’s newsletter (Pence and Nikki Haley), Corcoran chooses to protect Trump from accountability for his crimes at the expense of his reputation—or because of his ambition to be the one Trump lawyer who somehow achieves fame and avoids disbarment.

Nikki Haley declares candidacy for the presidency.

          Nikki Haley has declared her candidacy for the GOP nomination for president. Haley has adopted and rejected every conceivable position on Trump at least twice. She supports Trump, except when she doesn’t, except when Trump attacks her for not supporting him, except when she wants to be president but doesn’t want to offend Trump’s supporters. Got that? I hope not! It is incomprehensible.

          A key theme of Haley’s campaign is that she “stands up to bullies.” Really? Okay, let’s see what she said after the insurrection on January 6^th. Her first statement, a couple of days after January 6^th, included the following:

He went down a path he shouldn’t have, and we shouldn’t have followed him. And we can’t let that ever happen again.

          While her statement did not rise to the level of a nomination for a “profile in courage,” it was mildly critical of the man who incited a violent insurrection. But a few days later, after Trump’s supporters attacked her for attacking Trump, she said the following to Fox News:

January 6th was a tough day. The actions of the president since Election Day were not his finest. . . . What happened on January 6th was not great. Does he deserve to be impeached? Absolutely not. . . . They beat him up before he got into office. They’re beating him up after he leaves office. I mean at some point, I mean, give the man a break. I mean, move on.

          Hmm. Does that sound consistent with Haley’s tough talk in announcing her presidential run: “You should know this about me: I don’t put up with bullies.”

          Here’s my point: Even in announcing her presidential run, Haley is covering for Trump. Her reference to “bullies” was not a reference to Trump but a reference to “China, Russia, and the ‘socialist left.’” See Mother Jones, “I Don’t Put Up With Bullies,” Says Nikki Haley, Who Worked for One.

          The one bully Haley did not mention is Trump. She continues to give him a pass and continues to tell Americans to “move on, give the man a break” despite his role in a violent insurrection and attempted coup. Nikki Haley will run against Trump while maintaining her posture as a Trump defender and apologist. She has no choice; to admit the truth about Trump would be to admit that she served as a Trump enabler for two years. So she continues to excuse, defend, and protect Trump—like most of her fellow Republicans.

Wisconsin Supreme Court election.

          I noted previously that there is an important election for the Wisconsin Supreme Court in 2023. There are four candidates in the primary, and the top two finishers are likely to proceed to a run-off. Democrats must ensure that at least of the two final candidates is a Democrat. Given the complicated primary system, figuring out how to maximize the effectiveness of contributions to this race is a challenge. If you are interested in learning more about this critical race in a swing state, join Focus for Democracy in an online event on Sunday, February 19th at 5 pm PT/8 pm ET. Below is a short description from the organizers of the event:

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Concluding Thoughts.

          Many readers wrote to say that I was unfair to GOP Majority Leader Steve Scalise when I suggested that he wanted Social Security retirees to work for benefits received under a retirement program. Readers noted that what Scalise really wants is to force people receiving Social Security disability benefits to work in exchange for those benefits. (Scalise said, “We want to strengthen Social Security by ending a lot of those government checks to people staying at home rather than going to work.”)

          I don’t think the clarification saves Scalise. If Scalise was talking about people suffering from disabilities, “ending those government checks” for people “staying at home rather than going to work” because of disabilities seems equally mean-spirited and ridiculous.

          Scalise and his fellow Republicans promote all manner of justifications for “reforming” Social Security disability insurance. Underlying all those justifications is the unwarranted premise that people suffering from disabilities are “faking it” or otherwise “unworthy” of government benefits. For example, in a plan released by a GOP Senate study committee for reforming Social Security, Republicans include this sweeping impeachment of people with certain types of disabilities:

A large percentage of applicants suffer from mental or musculoskeletal problems, which can be difficult to diagnose. Crowding out disability insurance payments for those who need them by sending benefits to those who can and should work is an unjust and immoral use of taxpayer dollars.

          Got that? According to the Republican plan, paying disability benefits to people with “mental or musculoskeletal problems” is an “immoral use” of taxpayer dollars because people suffering from such disabilities “can and should work.”

          The notion that people with “musculoskeletal problems” are underserving of disability benefits is particularly offensive coming from Scalise, who spent six weeks in the hospital from a gunshot wound that inflicted severe damage to his bones and blood vessels (“musculoskeletal problems”). During that six-week hospital stay, Scalise likely received his full salary as a member of Congress. That benefit would not be available to most Americans, who would face financial ruin if they were forced to take six weeks off work. The fact that Scalise has no empathy for people suffering from disabilities after his own life-threatening disability is consistent with the GOP’s Darwinian socialism approach to government.

          So, under either interpretation of Scalise’s statement, I stand by my statement, “The self-evident idiocy of the GOP agenda is beginning to get the attention it deserves in the media.” Don’t believe me? Read Judd Legum’s excellent summary in Popular Information, The truth about Biden, the GOP, Social Security, and Medicare.

      Talk to you tomorrow—with this caveat: I will be traveling for the next several days and will have intermittent access to the Internet. For those of you on the East Coast who stay up late to receive the newsletter, please take a break! My goal will be to keep to my usual publication schedule, but may not be able to do so. Thanks for your understanding!