Monday, July 4, 2022

BTRTN: To Indict, or Not to Indict...Thoughts on the Fourth of July

Will Merrick Garland bring criminal charges against Donald Trump, or not? Today, Steve urges that the will of the people be heard on the day we celebrate the will of the people being heard.


When the history books are written, some future Alexis de Tocqueville could well point to a five-day period in June, 2022, as the inflection point when the centrifugal force of polarization of the United States began pulling the nation apart at the seams. Or, we can hope, as the week when Americans finally woke up to the fact that their government was wildly out of touch with the will of the majority of citizens, and decided to do something about it.

On Friday, June 23, the United States Supreme Court overturned Roe v. Wade in a decision that despite having been previously leaked, still managed to absolutely stun a nation that overwhelming believes that women should have access to abortion.

Then, on Tuesday, June 28, a previously unknown White House staffer appears to have tilted the odds that, for the first time in American history, a former President of the United States will be charged with criminal activity conducted during his time in the White House.

Each, alone, represents a super-charging of partisan animosity: in the one case, progressives are furious at a Supreme Court of dubious legitimacy stripping away a Constitutional right articulated and affirmed by previous Courts. The flagrant hypocrisy of three Trump-appointed Justices, who lied to Senators about their beliefs on Roe, puts a Bunsen burner of contempt under the outrage about the decision itself.

In the other bombshell, the possibility that an Attorney General appointed by a Democratic President would bring criminal charges against a former Republican President is the ultimate in “uncharted territory” in a decade that seems to have been devoted solely to the exploration of uncharted territory. Imagine the right-wing rage as Fox News accuses “politically-motivated” Democrats of a "witch hunt," using the powers of government to torpedo Trump’s chance at re-election?

And just think about the reaction of progressives if – after the stunning evidence compiled by the House January 6 Committee – Attorney General Merrick Garland fails to bring charges against Trump.

Either way, Merrick Garland is holding a match, and a neutron bomb of societal rage is set to be triggered.  The only question now is which one.

To accuse, or not to accuse. That is the question. And only one person gets to make that fateful decision.

It's crazy, isn't it? In this government "by, of, and for the people," only one person gets to decide whether criminal charges will be filed against Donald Trump.

And some of the most intense polarization is among Democrats themselves on the very question of whether Garland should bring charges. A number of thoughtful left-leaning people are deeply concerned about what would happen if Garland pursues charges against Donald Trump… and they point out a number of powerful reasons why such an action could backfire.

For starters, many are worried that no matter how strong the case, it is very far from certain that Garland could secure a conviction. In our hyper-polarized society, it is likely that at least one of twelve jurors would be sufficiently pro-Trump to hang a jury. Then, of course, Donald Trump would proceed to scream vindication, equate the “failure to convict” with “full exoneration,” and once again -- as he did with both failed impeachments -- label the prosecution a baseless, politically motivated sham... a "partisan witch hunt." These liberals worry that Trump would emerge stronger from such a trial, and in a vastly improved position to retake the White House.

Other Democrats point out that a conviction would not be a slam dunk even before a jury of the most even-handed and non-political citizens imaginable. The error of making any conclusions based on the hearings of the January 6 Committee is that Democrats and ostracized Republicans Cheney and Kinsinger have controlled the entire process, with no opposing counsel challenging their allegations, no cross-examination of witnesses, no defense witnesses who could offer alternative explanations that create reasonable doubt.

This worry becomes acute when you realize that a verdict of “guilty” carries the burden of proving not just that a crime took place, but that it did so with criminal intent. The New York Times published a front-page article on June 19 titled “A Key Hurdle for Prosecutors: Proving What Trump Believed,” which asserted that:

“If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew – or should have known – that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.”

If Donald Trump was – as former Attorney William Barr openly speculated – “detached from reality” – then how is Trump's intention to be proven? If Trump truly believed that the election was stolen from him – however baseless this delusion was – his state of mind was one of someone fighting for what he felt to be true, not propagating lies that he knew to be untrue. Was he lying, or simply speaking preposterous untruths? There is a difference, and the difference is “criminal intent.” Trump’s lawyers will mount a defense asserting that plenty of “experts” found “evidence” of “election fraud,” and that Trump “listened to the opinions" of advisors who thought the election was fair as well as those who thought it was fraud – and then he made a judgment, something presidents do all the time. 

It is a Catch-22: how do you prove a man is lying when he has manufactured an alternative media universe that provides constant reinforcement that his manipulated version of reality is actually true?

Garland must of course deal with the question of what exactly what Trump is being charged with. Is it the “corrupt obstruction of an official proceeding,” by attempting to upend the formal tally of Electoral votes? is it “conspiracy to defraud the United States,” based on his efforts to overturn the election? Is it "seditious conspiracy," for motivating the January 6 mob to take up arms against the government? Jury tampering? Or, as Pat Cipollone supposedly warned if Trump succeeded in achieving his goal of joining the mob at the Capitol on January 6, “every crime imaginable?” With each, Garland must not only prove that a crime has been committed, but that it was done so as a willful act with knowledge of illegality. The trick will be to prove Donald Trump knew these actions were illegal when it is clear that he simply kept looking until he found clowns who would tell him that what he wanted to do was legal.

Many Democrats take an extraordinarily pragmatic approach to this calculation, urging that the only real purpose of a criminal conviction is to severely damage Donald Trump’s ability to win the presidency again. Here's a little-known and rather unsettling fact: there is no law barring a convicted felon from running for President. Indeed, a felon can run for Federal office from prison. But there is no doubt that conviction of a felony – and possible jail time – would be a crushing blow to Trump's ability to re-take the White House in 2024.

Which is why some Democrats believe that the case being brought against Trump in Georgia for attempting to interfere with the election is the one to focus on. Most important: like Watergate, the evidence in Georgia is a recorded conversation. There is no need to rely on witness accounts, circumstantial evidence, or the recollections of White House staffers. It is the easier case to make, should proceed on a faster timeline, and some legal experts believe that the Georgia case is the one that is most likely to result in a jail sentence for the former President. This line of logic concludes that Garland should let Georgia do the heavy lifting and only proceed with the far more charged, complex, and risky DoJ prosecution if Georgia does not result in a conviction.

Among the most thoughtful in the “don’t indict” camp are those who point out the wisdom of Gerald Ford’s willingness to jeopardize his own chances for election to the White House when he issued a “full and complete pardon” to Richard M. Nixon. Ford envisioned that the spectacle of a former President on trial for crimes against the United States would rip the nation further apart at a time it needed healing.

If you think that the idea that Ford’s “best interests of the nation” logic is flawed or specious, consider this fact: Bob Woodward, Carl Bernstein, and Teddy Kennedy – and many other Democrats – came to believe over the long view of history that Jerry Ford made a wise decision. It helped the nation move on from Watergate. The selfless Ford, however, lost to Jimmy Carter in 1976.

Today, we have to face the ugly reality that filing charges against Trump could create open season for every future President to weaponize the DoJ to search and destroy political opponents. Think this sort of venomous “tit for tat” is unlikely? Just watch what happens if the Republicans take over the House in the mid-terms.. there are sure to be bills to impeach Joe Biden within days after the new Congress is installed in January. It’s possible that every President going forward will be impeached if the opposing party controls the House of Representatives. Our politics are just that ugly and just that vindictive.

There is one final reason Garland might elect to not pursue criminal charges:  the reputational risk– both personal and to the institution of the DoJ -- of failing to convict. There’s a statistic that the Southern District Court of New York has a conviction rate of 95% of its cases, and when you hear that, your first instinct is to exclaim, “wow, they must be great lawyers!” Then you realize that their strategy is to not bring charges unless they are absolutely certain that they can secure a conviction. That’s sort of like learning that the reason the New England Patriots have the most Super Bowl wins is because they were given the choice of opponents, and they elected to play the New York Jets seventeen times each season.

Reputational risk is a fair hypothesis for why the new District Attorney of New York, Alvin Bragg, is not prosecuting Donald Trump’s company, a decision that caused two veteran Southern District prosecutors to resign in protest. Fear of failure appears to be a more decisive consideration than doing the right thing.

Garland may decide that a failed prosecution of a President of the United States would destroy the reputation of the DoJ, and refrain from pursuing an indictment.

In short, there are any number of reasons why Merrick Garland might decide to not press charges against Trump.

But what should Merrick Garland do?

How about this idea, inspired by the fact that it is July 4. 

Why don't we let the people decide? 

Merrick Garland should not take this momentous decision away from the American people. He should put the case before them in a Grand Jury to seek indictments, and if Trump is indicted, Garland must prosecute Trump to the full measure of the law.

The reason is simple: that is the essential American premise of equal justice under the law.

The United States system of justice does not hesitate to prosecute young Black men for minor drug charges. But our system of justice seems to think twice before taking on the rich and powerful. The rich and powerful have the attorneys who can fight back.  The rich and powerful have the resources to contest, muddy the waters, delay, appeal, tie up resources, and try the case in the media before it ever reaches a trial. The rich and powerful can ruin that 95% conviction rate.  They can embarrass the prosecutors and create risk that the D.A. won’t be re-elected.  They can make that one failure to convict the lead in the D.A.’s obituary. 

On June 28, the remarkable Cassidy Hutchinson made it far more difficult for Merrick Garland to avoid pressing criminal charges against Trump. She made it clear what was happening at the White House during the famous 187 minutes, and her stunning quotes that demonstrated keen awareness among White House senior staffers of the likelihood that crimes were being committed... both Rudy Giuliani and Trump’s Chief of Staff Mark Meadows sought pardons for their actions. If the President’s Chief of Staff feels he needs a pardon, it’s a damn good bet that the reason for the concern was discussed with the President. 

On Thursday, June 30, The New York Times ran a breathy lead editorial under the title “Hutchinson Changes Everything.” Yes, and no. Cassidy Hutchinson is heroic, to be sure, but she did not provide a “smoking gun.” A “smoking gun” is unambiguous proof of guilt. It is listening to a tape of Richard Nixon’s voice approving a secret plan to have the CIA direct the FBI to terminate its investigation into the Watergate break-in all while Nixon was telling the American people that he had done nothing to impede the FBI investigation.

A smoking gun would be if somebody turned on the recording mechanism on an iPhone in the Oval Office just as Donald Trump instructs a lackey to contact the leader of the Proud Boys, or announces that “I know we lost the election, but we have to pretend we won,” or perhaps just as Trump thunders, “I don’t care if it is illegal, we have to stop those electoral votes from being counted.”

Ms. Hutchinson provided graphic and vital testimony, but no smoking gun. 

At the end of the day, there are only two things that will cause Merrick Garland to press charges on Donald Trump.

One would be the “smoking gun.”

The other would be to hear the overwhelming outpouring of outrage from American citizens who are tired of a criminal justice system that aggressively targets young Black men but is frightened of taking on the really big cases for fear of failure.

Merrick Garland needs to let the people decide.

And today, on the Fourth of July, Merrick Garland needs to hear from "we, the people."

He needs to hear that it is not his job to worry about whether America will suffer from societal division if he prosecutes a former President.

That it is not in his purview to worry about whether Donald Trump will emerge stronger politically if he is charged but not convicted.

And Merrick Garland needs to hear that he should not wait until somebody hands him a “no brainer” smoking gun to proceed with pressing charges against Donald Trump. 

The January 6 Committee has done its job. It has presented more than enough evidence for us to believe that it is likely crimes were committed by the former President of the United States. 

As such, we are not terribly interested in whether Merrick Garland concurs, or whether Merrick Garland thinks that a trial of the President is good for our politics, good for our society, or good for his reputation.

It is time to let the people judge.  Let’s pick twelve Americans, vetted and agreed by all parties to appear fair-minded, open to objectively weighing the evidence, and then let’s hear what they conclude. We are more interested in their opinion than Merrick Garland's.

Let twelve Americans weigh the evidence.

Because there are now mountains of evidence that Donald Trump committed crimes in his attempt to hold onto power. There is now evidence that Donald Trump knew that persons in his January 6 mob were carrying weapons when he directed them to the Capitol. We have evidence that he had been told that his scheme to demand that Mike Pence overturn the election was illegal. There is the audio recording of Trump attempting to defraud the United States of America by pressuring Republican Georgia officials to manipulate the election results. There is the crime of obstructing an official act of the government by directing a violent, armed mob to storm the United States Capitol. There is the fact that he sat and did nothing to protect the United States Capitol and its legion of government employees from the murderous rage of the mob he convened and incited.

There is a mountain of evidence that Trump was being advised by experts that he was dead wrong in his assertions of election fraud. There is a mountain of evidence that Trump wanted his mob to disrupt the official business of the United States Congress. There is a reasonable expectation that a President of the United States -- who swore an oath to preserve, protect, and defend the Constitution -- should know the Constitution well enough to know that the Vice President does not have the power to overturn an election.

And yes, he either knew the actions he took were illegal – having been told by his legal experts – or he damn well should have known. Something tells me that twelve ordinary Americans are not going to accept a delusional aversion to reality as an acceptable rationale for breaking the law.

This is no time to hide behind invented and unachievable legal standards, no time to worry about political consequences, and no time for timid people or tepid resolve.

Merrick Garland has one job: enforce the law of the land.

If Donald Trump is not held accountable for his attempted coup of the United States government, Merrick Garland will have committed an egregious abdication of official government responsibility that is on a par with Trump’s own flagrant flouting of his Constitutional oath.

It is time for our opinion to be heard.

It is time for every American who cares in "equal justice for all" to write to the Department of Justice and demand that criminal charges be brought against Donald Trump.

We cannot expect this broken government of ours to do the right thing on its own. We now know that our leaders are more concerned about their jobs, their reputations, and their power than they are about doing the right thing.

The only thing they notice is when we rise up and tell them what they must do.

We, the people.

Write to Merrick Garland today. Tell him to do his job. Tell him to do the right thing. Make sure he hears the will of the people.

Do it today.

It’s the Fourth of July. It is the day that the will of the people is heard.


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  1. Steve another great piece// but I fear it’s too late. There’s no indication DOJ is close to deciding whether to seek indictment. Meanwhile, recent reports are that Trump is close to declaring for 2024. Without GA and/or DOJ indictment, he just sloughs such things off as “politically motivated hatred”

  2. You say "In this government "by, of, and for the people," only one person gets to decide whether criminal charges will be filed against Donald Trump." Not quite.

    The federal criminal process insures a US attorney [in this matter, almost certainly the Attorney General] will decide to begin. At that point, you are no doubt correct -- but the US attorney making such a choice only begins the process. Before it goes further, a group of "the people" will need to agree. The Fifth Amendment to the Constitution of the United States provides in part that “(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury....”

    A federal grand jury has 23 members selected from registered voters. If 16 of the 23 are present, they can hear from the US attorney, view materials and hear witnesses presented to them, and ask for additional materials or witnesses. If the grand jury process is known, "the person being investigated by the government may be given the opportunity by the grand jury to appear before it" or request the grand jury consider other materials or witnesses. Unlike the petit jury at trial, members of the grand jury can ask questions of the US attorney and witnesses.
    Eventually, the grand jury will deliberate among themselves and then have a secret vote on any indictment. Twelve or more grand jurors must agree before an indictment is returned, and "even the government attorneys may not be informed of what took place during the grand jury’s deliberations and voting."

    I have no idea if a grand jury has or will be called. But "the people" will be represented before there is any trial.

    1. somebody said that a prosecutor could get a grand jury to indict a ham sandwich. I think that's true.

  3. John, Thank you for clarifying. My article should have been more clear in saying that only Merrick Garland gets to decide whether charges are even presented to a Grand Jury... and that I am very concerned that he will not even take this step if he fears that he cannot secure a conviction. Thanks very much!

    1. Thanks for the original essay. I enjoy thinking about the topics you raise, and my instinct as a former debater and obnoxious teenager who wanted to be "right" sometimes kick in and urge a response.

      Descriptions of Garland's time as a US attorney, head of FBI, and federal judge are that he listens carefully, considers deeply, and then makes and carries out a decision. He's not going to make a decision based on public opinion generally. I have no clue what the choice will be and am pretty certain Garland won't go into detail about his decision making. So, all I can do is sit and wait.


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