Trump Indicted for Conspiring to Overturn the 2020 Election

[N.E. Brigand]

I think some kudos may be due to Seth Abramson because, as I recall, he was arguing pretty early on that, contra claims that President Trump merely considered appointing Jeffrey Clark to the role of Acting Attorney General, as see, e.g., the summary of that incident in Wikipedia:

Attempted appointment as Acting Attorney General
Also in January, Trump considered replacing Rosen with Clark, because he was disappointed that Rosen would not support his unsupported claims of fraud, while Clark had worked on ways to cast doubt on, or even overturn, the election results. Trump expected that if Clark became acting attorney general, he would reverse the decisions of previous attorneys general and publicly declare that DOJ had serious concerns about the election results. ...

...that all the evidence indicated that Trump did effectively appoint Clark to that role. And the indictment says that's what happened: Clark "accepted the Defendant's offer that he become the Acting Attorney General."

Regardless of what Wikipedia says, that was long known, including by the January 6th committee.

Ah sorry, I guess I had missed that. Kyle Cheney seemed to treat it as new information tonight.

Looking back at this, I think I was mixing up this incident with President Trump's appointment or intended appointment of Sidney Powell as Special Counsel. Wikipedia says that at a Dec. 18, 2020 White House meeting, "Trump suggested naming Powell as a special counsel to investigate allegations of election fraud. Most Trump advisors opposed the idea, while Powell characterized them as quitters. The meeting was reportedly heated and included Flynn's proposal for the president to declare martial law." Abramson wrote in late 2021 (I think it was) that his reading of the evidence was that Trump did indeed appoint Powell to this role (and that unlike the appointment of Clark, the appointment was never rescinded). I don't know if the Jan. 6th Committee or anyone else ever made a final determination on the matter.

Edited to add that Kyle Cheney today noted that Jeff Clark's attorney asserted this week that Clark was indeed appointed as Acting Attorney General, although Clark himself has not testified about this, and "Clark’s former colleagues are skeptical, noting that the appointment couldn’t be effectuated without paperwork and some sort of formal acknowledgment that was never made."

[N.E. Brigand]

Donald Trump has argued that U.S. Presidents must have absolute immunity, and in various cases, his own lawyers have said that, as President, he could himself kill someone (e.g., shoot someone on Fifth Avenue) or order others to kill someone without himself facing any criminal consequences.

I think almost everyone agrees that's nonsense. But if a President Trump launched into a murderous rampage on Fifth Avenue, what would Secret Service agent's obligations be? If a citizen targeted by Trump drew her own gun to defend herself, would the agents be obliged to take that bullet for Trump? Would they be required to shoot back at the citizen? Or if the police arrived and closed in on the serial killing Trump, would the agents be required to defend the President? Would they be permitted to attack the President themselves in order to save other lives?

[N.E. Brigand]

Here is the Special Counsel's brief.

[Voronwë the Faithful]

As several have pointed out, the most important part of the brief is the last part on pages 44-48, in which the SCO gives the court an "out" to rule that there is some immunity but still allow the trial to proceed without further delay.

[Voronwë the Faithful]

This is another important point. Many of suggested that the Fischer case could eviscerate the case against Trump, but I have long believed that the obstruction counts against Trump would survive, even if they would not survive in the vast majority of 1/6 cases.

[N.E. Brigand]

From Donald Trump's latest reply brief to the Supreme Court:

President Ford pardoned President Nixon, but President Nixon faced charges for private conduct, not just official acts. The Legal Aftermath: Citizen Nixon and the Law, TIME (Aug. 19, 1974), [link] (investigation of Nixon included “subornation of perjury, tax fraud, misprision of a felony, [and] misuse of Government funds for his private home”). Moreover, President Ford correctly determined that the prosecution of a former President would be incurably divisive and destructive. Gerald Ford, Presidential Statement (Sept. 8, 1974), [link]. Citing the “years of bitter controversy and divisive national debate,” President Ford stated that “years will have to pass before Richard Nixon could hope to obtain a fair trial by jury in any jurisdiction of the United States,” id. at 8; that in such a trial, “ugly passions would again be aroused, our people would again be polarized in their opinions, and the credibility of our free institutions of government would again be challenged,” id. at 10; and that prosecuting the former President would “prolong the bad dreams that continue to reopen a chapter that is closed,” id. at 13. Thus, Ford made the same judgment as the Framers, see THE FEDERALIST NO. 65—that the prosecution of a former President should not, and could not fairly, proceed in Article III courts.

Seems backwards to me.

[Voronwë the Faithful]

That's because it is. Ford would not have had to offer a pardon, nor Nixon accept one, had Nixon been immune from prosecution. And, of course, Trump also faces charges from private, not just official acts, as his attorneys actually acknowledge elsewhere in the Reply Brief.

[N.E. Brigand]

Busy news day. Rolling Stone reports on how Trump's defense team expects to lose when the Supreme Court eventually rules on his claims of immunity (which hears oral arguments tomorrow) but still feels that they've won by sheer delay: "we already pulled off the heist." And while that has been a general sentiment here including in my own posts, the tone of this one seems too boastful -- comparing your case pending before SCOTUS to a robbery? -- as if they're trying to distract from an expected clobbering. I hope they get one!

[Voronwë the Faithful]

Interesting.

[Voronwë the Faithful]

This sounds encouraging.

[N.E. Brigand]

I think Alito's brain would explode:



Anyway, it sounds like some of the Republican judges are inclined to rule for immunity?

[N.E. Brigand]

Most legal commentators seem to fear that Chief Justice Roberts is the swing vote and that he seems inclined to remand this case to the Court of Appeals to more carefully analyze which of Donald Trump's crimes were official acts and which were private acts, and of course Trump will appeal to the Supreme Court, and they wouldn't hear that until after the election, when Trump may win and then pardon himself in January.

[Voronwë the Faithful]

I agree that Roberts is likely the swing vote, but I don't think it is completely clear what he will do. We'll know in a couple of months.

[Voronwë the Faithful]

One possible result is that that the SCO proceeds on solely the clearly non-official acts alleged in the indictment in order to be be able to move forward without further delay, but Dreeban seemed reluctant to agree to that in the part of the argument that I heard. It may not be his call however.

[N.E. Brigand]

When Donald Trump's attorney said that it could be an official act for a president to assassinate a political rival, I agree that one of the justices should have asked: 

"Mr. Sauer, if you lose this case, your client faces some prison time. But if you win it, President Biden could kill your client and—provided the Senate doesn’t remove him—never face a legal penalty for doing so. Which do you prefer?"

I would add: Biden could also kill every senator to prevent a trial. And also kill the Supreme Court to prevent them from declaring his actions unconstitutional.

Some of the Republican justices seem to hope that comes to pass!

[N.E. Brigand]

Let's see someone write an alternate history based on this:

[Voronwë the Faithful]

Lee Kovarsky's analysis tracks my own pretty closely (and is somewhat more optimistic than most other takes I have seen).

[N.E. Brigand]

Should President Biden hint to the Supreme Court that he's willing to play hardball to force them to do the right thing?

[Voronwë the Faithful]

Should President Biden hint to the Supreme Court that he's willing to play hardball to force them to do the right thing?

No. Emphatically no.

While I am disappointed with some of the oral argument on this case, I am far more disappointed by the response to it.

[N.E. Brigand]

Should President Biden hint to the Supreme Court that he's willing to play hardball to force them to do the right thing?

No. Emphatically no.

While I am disappointed with some of the oral argument on this case, I am far more disappointed by the response to it.

Whereas I fear that nine months from now, if the worst comes to pass, we'll both feel that the responses have been far too mild.