Vindicating the rule of law.

October 14, 2022

[No audio version for this newsletter.]

          The “final” hearing of the January 6th Committee was a masterful exposition of Donald Trump’s criminal culpability for the insurrection and attempted coup culminating on January 6th. There is no substitute for watching the hearing in full, at this link: January 6th Committee Ninth Public Hearing.

          Given the breadth of the Committee’s evidentiary review, I will focus on the high-level themes and major revelations. (Also, as explained below, I am short on time this evening.)

          Here are the most important takeaways from the hearings: (a) the Committee developed a record that makes it impossible for the DOJ not to indict many of the co-conspirators who participated in the attempted coup, including Trump; (b) by increasing the likelihood of accountability for the co-conspirators, the Committee has helped to repair the rule of law in the US and rehabilitate America’s standing among its allies; and (c) the Committee has established the definitive historical record of the attempted coup.

          Other significant points:

1.     The Committee voted to issue a subpoena to Donald Trump.

• The final act of the Committee was to issue a subpoena to Trump. The subpoena is a “place marker,” preserving the Committee’s ability to decide later whether to pursue testimony from Trump.

• Inviting Trump to testify by subpoena addresses the criticism that Trump was not allowed to tell his side of the story. But Trump will never testify, and if he does, he will assert his Fifth Amendment right against self-incrimination.

2.     Disturbing disclosures regarding the Secret Service and FBI.

• The Secret Service and FBI received early warnings of planned violence on January 6th but failed to adequately prepare or respond to the violence. Worse, they may have deliberately ignored or minimized those warnings to provide “soft support” for Trump’s coup attempt.

• The Committee believes that members of the Secret Service were not truthful in their testimony to the Committee.

3.     Trump planned for months to contest the election.

• Trump’s plan to contest the election began in the summer of 2020—months before Election Day.

• New emails and testimony reveal that Trump planned to declare victory on election night regardless of the outcome of the election.

4.     Trump knew he lost but claimed otherwise to the American public.

• Trump was repeatedly told—and repeatedly admitted—that he lost the election.

• Despite knowing that he lost the election, Trump misrepresented the facts and his beliefs to the American public.

5.     Inadequate response by federal law enforcement and military agencies after the assault commenced.

• After Trump refused to defend the Capitol, members of Congress pleaded with the DOJ and Department of Defense for protection and rescue. Both agencies temporized and made excuses for not providing immediate aid to Congress.

• Nancy Pelosi, Chuck Schumer, Mitch McConnell, and Mike Pence worked together to clear the Capitol and resume the count of electoral ballots.

• Nancy Pelosi led the efforts of congressional leaders to stop the violence and defend the Capitol. At times, it appeared that Pelosi was the “acting” Commander-in-Chief because Trump had abdicated his constitutional duty to defend the US “against all enemies, foreign and domestic.”

6.     Criminal referrals.

• It appears that the Committee will make criminal referrals to the DOJ to investigate Roger Stone, Michael Flynn, John Eastman, Jeffrey Clark, and Donald Trump.

7.     What’s next?

• The Committee will share its investigative record with the DOJ ASAP! Why? Because if Republicans take control of the House, they will dissolve the Committee and refuse to cooperate with the DOJ.

The Supreme Court denies Trump’s request for relief.

          The Supreme Court unanimously rejected Trump’s request to allow the special master to review the classified documents seized at Mar-a-Lago. The order is here: Miscellaneous Order (10/13/2022). The order states in its entirety:

The application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit on September 21, 2022, presented to Justice Thomas and by him referred to the Court is denied.

          Three important points are embedded in the short ruling: Justice Thomas did not recuse himself, Thomas referred the application to the full Court for review, and no justice dissented from the order. The unanimous ruling suggests that the Supreme Court will not come to Trump’s aid in future appeals relating to the search at Mar-a-Lago.

          Given that Trump has publicly admitted the elements of espionage and obstruction of justice relating to the classified documents and national defense secrets he stole from the US government, the DOJ should be in a position to seek an indictment in November or December of this year.

Concluding Thoughts.

          The newsletter is shorter this evening because my Managing Editor and I attended a fundraiser for Joe Biden in Los Angeles on Thursday evening. Given security and Covid protocols, a 25-minute speech by the president was a 4-1/2 hour commitment—which was worth every minute! Jill and I attended as guests of a reader who was otherwise occupied on Thursday, and we thank him for his generosity and kindness in allowing us to attend in his place.

          I am not certain what I can write or say about the event, which was billed as “private.” I will limit my observations to information that is otherwise publicly known or available. Here’s the takeaway: Joe Biden is an effective communicator with the common touch. He is spry, fit, and has a twinkle in his eye—especially when telling good-natured jokes. He spoke for 25 minutes with no teleprompter. As in most of his public speeches, he covered a broad range of topics, including disinformation, foreign policy, Putin, Ukraine, nuclear brinkmanship, domestic policy, drug prices, infrastructure and chip manufacturing investment, gun violence, the GOP’s “anti-people platform,” and congressional candidates. At times, when it was appropriate, Biden was passionate and forceful.

          He told one story (repeated in public settings) that highlighted the importance of the work of the January 6th Committee. When he attended his first G-7 meeting after being elected president, he told the assembled world leaders that “America is back.” That statement was met with skepticism, as a leader of another nation said, “Mr. President, how would you feel about the stability of your alliance with the U.K. if a violent mob stormed Parliament and killed police officers on the floor of the legislative chamber?” That single sentence illustrates the immense damage the attack on the Capitol inflicted on America’s global standing.

          The good news is that the January 6th hearings have signaled that American democracy is strong enough to withstand a public investigation of the root causes of the insurrection—however uncomfortable that process may be. If the hearings enable the DOJ to prosecute those responsible for the attack, it will vindicate the rule of law in America and go a long way to reestablishing trust in American democracy—at home and abroad. That would be an ambitious and noble achievement by the January 6th Committee. Every American owes the members and staff of the Committee a debt of gratitude for a job well done!

          I will be in touch over the weekend briefly. As noted previously, my youngest daughter is getting married on Saturday, so Jill and I will be focused elsewhere. I will open the Comments section on Saturday so that you can talk amongst yourselves!