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"Arrest and Indictment"
The GOP embraces the OJ defense.
"Deranged Jack Smith, the prosecutor with Joe Biden's DOJ, sent a letter (again it was Sunday night!) stating that I am a TARGET of the January 6th Grand Jury investigation, and giving me a very short 4 days to report to the Grand Jury, which almost always means an arrest and indictment," — Donald J. Trump, July 18, 2023
As we absorb the news that (1) Donald Trump faces imminent indictment for his attempted coup, and (2) Michigan’s AG has charged 16 fake electors with felonies, let’s take a moment to put all of this in perspective.
The wheels of justice grind exceeding slow, but it now seems likely that within a few weeks, the twice impeached, defeated ex-president will face four separate criminal indictments.
By any rational measure, Trump’s disgrace is absolute, comprehensive, and about to get far worse. As Tom Nichols noted on our podcast yesterday: “It is a ghastly reality that the only job left that Donald Trump could get in this country is president of the United States.”
And yet, his grip on the GOP seems stronger than ever.
Imagine if we had known back in January 2021 that all of this would happen.
This, after all, is what Mitch McConnell seemed to foretell, even as he failed to hold the ex-president accountable. “President Trump is still liable for everything he did while he was in office as an ordinary citizen,” McConnell said moments after the Senate voted 57-43 to convict Trump for his role in fomenting the J6 Insurrection (short of the two-third majority required). “He didn’t get away with anything. Yet.”
We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.
In March 2022, a federal judge found that both Trump and lawyer John Eastman had likely committed felonies, including obstructing the work of Congress and conspiring to defraud the United States.
“The illegality of the plan was obvious,” wrote Judge David O. Carter of the Central District of California. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election.”
Last year, the House January 6 Committee declared that there was sufficient evidence to charge Trump with four crimes: obstructing an official proceeding (Title 18 Section 1512(c).); conspiracy to defraud the government (Title 18 Section 371.); making knowingly and willfully materially false statements to the federal government (Title 18 Section 1001); and inciting or assisting an insurrection (Title 18 Section 2383).
And now here comes Jack Smith, with a set of indictments that will likely overshadow everything that has come before. (ABC reports that the target letter mentions three federal statutes: conspiracy to commit offense or to defraud the United States, deprivation of rights under color of law, and tampering with a witness, victim or an informant.)
Nota bene: But for that congressional investigation, we would probably not be where we are today.
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Jack Smith Is Not Screwing Around
Orange Jumpsuit Man?
BONUS for Bulwark+ members: Mona Charen and I discuss delegitimizing institutions, cults of personality, and the OJ defense.
The U.S. v Donald J. Trump
We don’t know exactly what charges Jack Smith will bring, but as we await the indictments, the folks at Just Security are offering a splendid preview of the possibilities.
Here, we conclude there likely is sufficient evidence to obtain and sustain a conviction of Trump for his three-step plan to overturn the election:
Trump knew he lost the election but did not want to give up power, so he worked with his lawyers and others on a wide variety of schemes to change the outcome. Those schemes included creating fraudulent electoral certificates that were submitted to Congress, implicating statutes such as 18 U.S.C. § 371, which prohibits conspiracies to defraud the United States in the administration of elections.
When all the other schemes failed, Trump and his lawyers ultimately concentrated on using the false electoral slates to obstruct the constitutionally mandated congressional certification of the election on January 6, implicating statutes such as 18 U.S.C. § 1512, which prohibits obstruction of an official proceeding. Their primary objective was to have Vice President Mike Pence in his presiding role on that day either block Congress from recognizing Joe Biden’s win at all or at least to delay the electoral count.
When Pence refused, Trump went to his last resort: triggering an insurrection in the hope that it would throw Congress off course, delaying the transfer of power for the first time in American history. This implicated statutes such as 18 U.S.C. § 2383, which prohibits inciting an insurrection and giving aid or comfort to insurrectionists. (Section 2383 is rarely charged, and as we discuss below, this is a charge DOJ will use only with extreme caution. We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices. Much will depend on the evidence the Special Counsel develops.)
Our own conclusions based upon the publicly available information are bolstered by the analysis of many other authorities:
A federal judge has already found by a preponderance of the evidence that Trump and a co-conspirator (John Eastman) likely violated 18 U.S.C. § 371 and 18 U.S.C. § 1512.
The Select Committee has made criminal referrals of Trump and his co-conspirators to DOJ under those and other statutes based upon voluminous and persuasive evidence summarized and cited in their report.
Subsequent to that report’s issuance, the Committee released a large body of additional evidence containing information that supports prosecution—some of which is publicly analyzed for the first time in this model pros memo.
Evidentiary hurdles faced by the Select Committee have been overcome by Special Counsel Smith through the use of his more robust subpoena power and a series of court victories. He has now taken testimony from two of the most important witnesses in the case, former Vice President Penceand Trump’s former Chief of Staff Mark Meadows, and recently interviewed a third, Trump’s personal lawyer Rudy Giuliani. Smith has also taken testimony from an array of other key witnesses including: former White House Counsel Pat Cipollone, his former deputy Pat Philbin, former White House Deputy Chief of Staff Dan Scavino, former National Security Advisor Robert O’Brien, former Senior Advisor Stephen Miller, former Director of National Intelligence John Ratcliffe, former Acting Deputy Homeland Security Secretary Ken Cuccinelli, former aide Nick Luna, former White House Presidential Personnel Office Director John McEntee, and Georgia Secretary of State Brad Raffensperger. While we do not have the grand jury transcripts, we are able to assess the likely testimony based on publicly available information such as that contained in Pence’s book, Meadows’s contemporaneous texts, and prior hearsay evidence that may itself not be admissible at trial. The testimony in DOJ’s possession is likely highly incriminating of Trump.
A bipartisan expert consensus has emerged that charges here are merited and likely. Among the first and most persuasive to make the case was former U.S. Attorney Barbara McQuade, who published a model prosecution memo over a year ago on which we build. Most recently, the consensus has been joined by Trump’s own former attorney general and one-time defender, Bill Barr, and eminent conservative jurist Judge Michael Luttig.
A series of rare convictions of some of the leading insurrectionists under the charge of seditious conspiracy have now laid the groundwork for closely related insurrection charges against Trump.
Party over Country
By now the GOP reaction is painfully predictable. Even alleged “normie” Republicans like Georgia Governor Brain Kemp still say that they will support Trump if he is the nominee.
Once again party loyalties and the demands of tribal fealty trump every other consideration, including the prospect of returning a convicted felon to the Oval Office.
Not to put too fine a point on it: this is quite literally a declaration that they put
party cult over country.
In contrast, consider former Arkansas Governor Asa Hutchinson’s statement:
“I have said from the beginning that Donald Trump's actions on January 6th should disqualify him from ever being president again. As a former federal prosecutor, I understand the severity of grand jury investigations and what it means to be targeted by such an investigation. Donald Trump has confirmed that he is a target of this investigation and will likely be indicted once again.
While Donald Trump would like the American people to believe that he is the victim in this situation, the truth is that the real victims of January 6th were our democracy, our rule of law, and those Capitol police officers who worked valiantly to protect our capital.
Anyone who truly loves this country and is willing to put the country over themselves would suspend their campaign for president of the United States immediately. It is disappointing that Donald Trump refuses to do so.”
“We have yet again another example of Joe Biden’s weaponized Department of Justice targeting his top political opponent, Donald Trump,” Representative Elise Stefanik, the No. 4 House Republican, told reporters on Capitol Hill.
When Mr. Trump and Ms. Stefanik spoke by phone on Tuesday, the former president lingered on the line as they discussed ways to use the Republican-led House committees to try to attack the investigations. Mr. Trump also spoke with House Speaker Kevin McCarthy, who accused the Biden administration of trying to “weaponize government to go after their No. 1 opponent.”
And his rivals for the GOP nomination? Here’s Fox News: “DeSantis launches staunch defense of Trump ahead of possible third indictment: 'I hope he doesn't get charged'.”
DeSantis pushed back on the notion Trump should be "held accountable" if there is evidence he committed a crime by attempting to overturn the results of the 2020 presidential election, telling CNN during a Tuesday interview that it's "wrong" for the country to go "down the road of criminalizing political differences."
Bonus: JVL, Tim, and Will reacted to DeSantis’s low-energy interview with Jake Tapper. You can watch here.
1. Can We Identify the Trump Indictment Timeline?
I think we can also assume that Smith will want to minimize the amount of time between the target letter and the indictment itself. The reason for the target letter is to give Trump a fair opportunity to come into the grand jury if he chooses (he will not so choose, but that’s his decision) and his lawyers an opportunity to meet with prosecutors to try to talk them out of proceedings. Once that opportunity has been meaningfully offered, there is no reason not to move quickly—and every reason to go forward expeditiously. The longer Smith waits, the longer Trump has to lie uncontradicted.
We basically know three things, two of them from Trump, and one of them from the press. From Trump we know (1) that he received the target letter on Sunday, and that (2) it gave him four days to come into the grand jury. From the press, we know (3) that one of Smith’s senior prosecutors was spending quality time with the grand jury last week.
This last fact is important, because it suggests that prosecutors may have already presented their case to the grand jury and have held off only on having the grand jury vote on whether to hand up the charges. In other words, it suggests that the gun is loaded and the safety is off. They don’t need any additional time or steps before pulling the trigger.
Counting four days from Sunday would bring us to Thursday evening. In fact, however, Smith will know well before Thursday evening whether Trump is coming in (he is not). A visit by a former president to the E. Barrett Prettyman courthouse would require significant Secret Service coordination. It couldn’t be a surprise pop-in. It would have to be arranged both with the special counsel’s office and with the court itself….
So I’m thinking an indictment on Thursday or Friday is the most likely scenario. My assumption is that Smith will once again proceed under seal, though he will do so while prepared to move to unseal the charges the moment Trump announces them—which Trump will do immediately. This means the indictment will likely become public on Friday.
Irony is dead, Chapter 62,209,292.