The Committee is Establishing Trump's Criminal Liability
The Committee is Establishing Trump's Criminal Liability
And it's not subtle.
Happy Friday my beautiful babies. Cue my intro music. First off, I cheated on all of you this week and got published somewhere else. If you’re interested in the legal argument for firing John Durham, click here. If you are interested in the January 6th hearings from this week, read on.
So, there was a general consensus about the two January 6th hearings that were held this week:
The one from Monday was decidedly less “newsy” and dramatic than the one from prime time last week.
The reason for that became more clear on Thursday, when we got a ton of new information and the Committee took a significant step in building a legal case against Trump.
The way it played out was really interesting to me. At the first hearing on Monday, there was a lot of testimony from people who were close to Trump during the election. Basically, every single person testified that Trump had been informed multiple times that he had lost the election.
Everyone from Bill Barr (7.8) to Jason Miller (9.4)1 was trying to tell Trump that he had lost. Barr, in fact, reportedly told Trump to his face that his election fraud claims were “bullshit.” Testimony from White House lawyers also similarly show that the Campaign understood early on that Trump wasn’t going to win the election. He had been told over and over again that it wasn’t a matter of fraud, but just simple math, and there was nothing the Campaign could do about it. No legal claim would change the outcome, because the election wasn’t really all that close.
On election night, Trump decided to ignore a lot of these people, and instead followed the advice of a drunk Rudy Giuliani (8.7) and declared victory. From then on out, the stage was set, and Trump clung to his “stolen election” claim.
The commentary from Barr on Monday was a little alarming, because he told the Committee that he was worried that the President was becoming “disconnected” from reality. This was kind of obvious, but it was legally significant: Trump does have a plausible legal defense of his actions if he can convince a jury that he truly believed in his claims of election fraud. Basically, if Trump endlessly testifies about how he really believed the election was stolen from him, his own delusion can serve as a legal defense.
I wanna do a little aside here, but I think it’s helpful. In a lot of legal cases, what’s called your mens rea is really significant. Basically, your “intention or knowledge of wrongdoing” must be shown to prove that you violated the law. With the Trump Administration, we’ve heard this term (or iterations of it) a lot. For instance, when Donald Trump, Jr. (9.5), sought out a meeting with the Russians (9.7) in Trump’s 2016 Campaign, he was violating 11 CFR § 110.20, seeking something of value from a foreign national during a Campaign.
During its investigation, Robert Mueller’s Special Counsel team considered indicting Donald Trump, Jr., and Paul Manafort (6.1) for violating this Regulation. They ultimately decided against bringing an indictment, because they weren’t sure how a jury would interpret an “other thing of value,” and if stolen emails from Hillary Clinton would fall into that category (double side note: That sort of caution is what a prosecutor is supposed to practice, in contrast to Durham’s investigation). Another significant component was Trump, Jr.,’s mens rea; i.e., did he actually know he was breaking the law and did he intend to do so? People on Mueller’s team disagreed and wanted to indict Jr., as well as the whole Campaign. Mueller himself ultimately said no (probably correct).2
Knowledge of wrongdoing is a really significant component in other aspects of the law, namely financial fraud. A lot of Democrats were angered by the all-but shuttered investigation into Trump’s finances by the Manhattan District Attorney, Alvin Bragg. Even though two prosecutors hired by the DA’s office believed that Trump had committed financial fraud by inflating and deflating the value of his properties, Bragg shut down the investigation.
A lot of Bragg’s actions deserve criticism, but the core of his argument is pretty sound: It is extremely hard to bring a tax fraud case against Trump because he does not do his own taxes. Basically every financial decision he makes is deferred to an accountant (or someone with a similar position). That’s why his Chief Financial Office, Allen Weisselberg (7.0), has been indicted (along with the Trump Organization itself) and Trump hasn’t. It is different in other aspects of the law, but knowledge of wrongdoing is really significant and with someone like Trump (who does not use email and supposedly swallows meeting notes), it can be difficult to prove.
That’s why the hearing on Thursday was so significant: The Committee fully established that the attorneys working for Trump not only knew that their scheme was illegal and unconstitutional, but they also established that this was communicated to Trump.
I want to be clear here, but in terms of Trump’s liability for his actions on January 6th, this is a legal bombshell. One of the main concerns I had on Monday was that I heard a lot of people testifying, “We told Trump he lost the election,” and then Trump then proceeded to fire those people because it wasn’t what he wanted to hear. After Bill Barr told the Committee that Trump was disconnected from reality, and I could see a legal defense forming in my head:
So, what the Committee is doing is significant: They are jumping over a major legal hurdle and proving that Trump was fully aware of the illegal nature of his scheme, and wanted to do it anyway, because all he cared about was staying in power.
Significant in this scheme are the actions of John Eastman, an attorney who “worked” for the Campaign before and after the election. Eastman has tried to cover up a lot of his actions with the Campaign under attorney-client privilege, but judges across the country have ruled against him, most notably because “more likely than not,” Eastman helped Trump engage in a crime.
The testimony about Eastman and the text messages we got from him was particularly alarming. Eastman was fully aware of the fact that his scheme was illegal. He admitted this to Trump. Then, he texted Giuliani after the insurrection that he “decided” he should be on the pardon list, if that’s a thing.
All of this goes to Eastman’s state of mind, but it is a continuously big problem for Trump: If his attorney clearly knew his scheme was illegal and communicated that to Trump, the latter’s ability to say, “I was simply following the advice of my attorneys,” gets thrown out here. It is one thing to say, “Well, my accountant does my taxes.” It is another to say, “I told my accountant to violate tax law, and he did it for me.” Trump is close to that line. Also, a fun side note: Apparently Eastman coordinated with Fox News host Mark Levin on this legal “strategy.” So, yeah. This is all just different tiers of terrible.
On Thursday we got some horrific video from the Capitol siege. On Monday we heard about how Giuliani (8.7) was drunk. But on Thursday, the Committee clearly established Trump’s legal vulnerability in the case. Really insane.
Should-Reads:
Pretty easy to see now, but Trump’s choices show that he was able to smell the bullshit he was peddling.
Not only was Trump’s scheme illegal, but it was also a grift.
Today, in, “Put a pin in this later:” Democratic donors bought out a conservative talk radio station in Miami that was peddling misinformation to listeners.
Barbara McQuade talks about a lot of the legal stuff I mention above, only she is way more gooder at it than me.
Tom Nichols says the quiet part out loud: Biden has actually been a good President, if you subtract the things that are out of his control (inflation, gas prices).
A great piece on how Juneteenth is the other half of the 4th of July.
If you are into it, there is a great Juneteenth episode on this season of Top Chef.
Folks, that is really it from me until July 8th, although I may decide to pop back in at some point. I hope you all have a great summer holiday season, and that we all begin to normalize taking a break from late June to early July.
So, I’m introducing something that I think will be helpful here: I’m rating each person based on their Trump sycophancy on a scale of 1-10, just so we can highlight how significant it is that someone like Jason Miller or Ivanka Trump testified privately against him. And to use a guide, a 0.1 would be me, a 9.5 would be Donald Trump, Jr., and a 10 would be Mike Lindell. Spoiler: No one in Trump’s circle gets below a 5.0.
A thing that always sticks out to me about Mueller’s investigation is that Paul Manafort was Trump’s Campaign manager at the time, was well-experienced, and knew that what was happening at that meting was illegal. The problem arises when you concede that Manafort clearly had his own ambitions while the Campaign was going on, and they didn’t always align with Trump’s.