Isaac Laquedem

One of Donald Trump's upcoming trials commemorates Benjamin Harrison's "spectacularly corrupt administration"

Donald Trump will go to trial on March 4, 2024 in federal court in the District of Columbia on the charges related to his attempts to overturn the 2020 election result.  Why March 4?  It's a Monday, and long trials often start on Mondays.  But Judge Tanya Chutkan, who chose the date, may have intended to make a sly historical reference.  Elected presidents are inaugurated on January 20 now, but before 1937 they were inaugurated on March 4.  March 4 is thus the anniversary of the inauguration of all the elected presidents from John Adams to Franklin Roosevelt in his first term (1933).  It was on March 4, 1889 that Benjamin Harrison (5'6", 160 pounds) was inaugurated.  Harrison's "spectacularly corrupt administration" (the words of historian Heather Cox Richardson) produced a collapse of the stock market and the Panic of 1893.

Celebrations of Benjamin Harrison are few and far between.  Judge Chutkan has figured out an appropriate commemoration, and Mr. Trump will get to play the leading part.

Fulton County's indictment of Donald Trump and friends, analyzed

            The 41-count indictment that a Fulton County grand jury handed down today is riveting in its narrative and notable in its detail.  Isaac has read it with great interest.  The grand jury’s accusations are not vague in time and place, nor are they more vague than necessary in describing the witnesses to the 161 numbered acts in furtherance of the election plot.  Those in Mr. Trump’s inner circle who are yet uncharged will read the indictment attentively to determine which of their friends are “Unindicted Conspirator One,” “Unindicted Conspirator Two,” and the other eighteen or so of the unnamed additional conspirators.

            All 19 defendants were charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act.  This charge is particularly ironic, or perhaps poetically just, when applied to Rudolph Giuliani, as he came to fame in the 1980s for using the federal RICO Act to dismantle the core of the New York mafia; as a federal prosecutor he obtained indictments against a long list of the mob’s leaders and lieutenants, convicting most of them.

            The indictment has some Easter eggs within its bulk.  I’ve alluded to one, which is the game of guessing the identities of the unindicted conspirators.  Another is to examine who got indicted with whom.

            The indictment has 41 counts and names 19 defendants.  Every defendant was charged with violating the Georgia RICO Act.  No defendant, however, was charged with violating even half of the 41 counts, and no count except the RICO charge names more than 7 defendants.  Messrs. Trump and Giuliani lead the pack with 13 charges each, sharing in 7 of them.  The runner-up in the indictment list is more obscure; he is Ray Stallings Smith III, a lawyer at a small firm in Atlanta whose practice includes election law.  He faces 12 charges, including all 7 of the charges that name both Mr. Trump and Mr. Giuliani. 

            At the other end of the spectrum lie Jenna Ellis, Jeffrey Clark, and Mark Meadows, who face only one charge each in addition to the all-hands-on-deck RICO charge (Count 1). Ms. Smith’s [thank you, Kari Chisholm, for catching the error] Ellis's charge (Count 2), which she shares with attorneys Giuliani, Eastman, and Smith, is that she participated in inveigling members of the Georgia Senate to appoint impostor electors.  Mr. Clark’s charge (Count 22), which he faces alone, is that he criminally attempted to knowingly make the false statement that the Justice Department had ”identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia,” asking for permission from acting attorney general Jeffrey Rosen and acting deputy attorney general Richard Donoghue to send that message to Georgia’s governor, speaker of the house, and president of the senate.  Count 28 names only Mr. Trump and Mark Meadows and charges them with having unlawfully “solicited, requested, and importuned” Brad Raffensperger, the Georgia secretary of state, to unlawfully alter the certified vote.

            So who did get indicted with whom?  (It sounds rather like high school gossip.)  Three of Georgia’s fake electors are among the indicted.  They are the only ones charged with Counts 8, 10, 12, and 14.  Two of them are the only ones charged with Counts 16 and 18.  Those six counts all relate to preparing and signing the false certifications.  They form a distinct group of charges and defendants. 

            A second group of defendants share Counts 9, 11, 13, 15, 17, and 19.  They are Messrs. Trump, Giuliani, Eastman, Chesebro, Smith, and Cheeley, and those counts relate mainly to the attempts to file the false elector certifications. 

            A third group of defendants are Sidney Powell, Cathleen Latham, Scott Hall, and Misty Hampton, the only ones charged with Counts 33 to 38.  Those counts describe the efforts to obtain or break into the voting machines of Coffee County.  Ms. Powell was a visible advocate for Mr. Trump’s cause, but the indictment relegates her to a minor part in the Georgia portion of the broader conspiracy.  Based on the structure of the indictment, Donald Trump and Rudy Giuliani were at its center, and Mr. Smith wasn't far from the core.  The skills of high school gossip tell us not who's going out with whom, but who's going down with whom.

"Exit, pursued by an alligator"? Donald Trump's legal team learns that a sad tale's best for summer

The Trump legal team's response to the Justice Department over Mr. Trump's request that the court appoint a special master to review the documents that the government recovered from Mar-A-Lago, filed today in federal court in Florida, is not up to the usual low standard of the team's legal work.  The hilarity begins on page 1, when Mr. Trump's lawyers call it "extraordinary" that the Justice Department believes that the Justice Department should be "entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President's possession of personal and Presidential records in a secure setting."

On the next page the lawyers do acknowledge that something called the Presidential Records Act exists, one sentence before they step off of the bridge into the moat of alligators:  "Thus, there is no question and, indeed there is broad agreement, that the matters before this Court center around the possession, by a President, of his own Presidential records."  Not content to swim with the alligators, the lawyers then offer themselves as nutriment for the carnivorous:  "Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize 'Presidential Records' (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents."

Where do the alligators come in?  Let's take their missteps one at a time. 

First, it is traditional, and in fact statutory, for the Justice Department to investigate possible federal crimes.

Second, while Mar-A-Lago may be a "secure setting" in the sense that the doors lock and the security cameras work, it is not a secure setting in the way that the SCIF in Congress is a secure setting.  ("SCIF" stands for "Sensitive Compartmented Information Facility."  There's one in the White House and another in Congress.  They tend not to be found at country clubs.)  And Mar-A-Lago has become known for lapses in security: in March 2019, a Chinese "business consultant" managed to enter Mar-A-Lago with a bagful of electronics and get past five Secret Service agents and into the reception area, all while Mr. Trump was still the president and had a robust cadre of Secret Service agents on the property.

Third, the lawyers inexpertly said that the case is about the possession, by an [ex-]President, "of his own Presidential records."  Are they "his own Presidential records"?  In one syntactical sense, they are; that is, they are records about Mr. Trump's four years as president.  In the legal sense, however, they are not "his own Presidential records," for the Presidential Records Act, 44 USC §2201 ff, states that "The United States shall reserve and retain complete ownership, possession, and control of Presidential records."  The Presidential Records Act also states that when a president leaves office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President."  The law is quite clear that the Presidential records of Mr. Trump's term don't belong to him; they belong to the nation, and the Archivist is entitled to hold and preserve those records.

Fourth, they erred badly in suggesting that the affidavit supporting the search warrant improperly referred to the possibility that the FBI might recover classified documents from Mr. Trump's office at Mar-A-Lago - because the FBI did recover classified documents.  

Why do Mr. Trump's lawyers sign their names to such shoddy legal work?  One possibility is that they know their client has no real defense, and they're serving not as his lawyers so much as his public relations agents.  Another possibility is that they themselves don't know how bad their arguments are, but they're the best of the lawyers that are still willing to tie their reputations to Donald Trump.  (Rope, meet millstone.) 

The third possibility is that they themselves are among the alligators, hoping to dine well on Mr. Trump's legal troubles and then to get out before the final crash, rather like the guests at the legendary ogre's feast who ate and drank well, realizing only too late that the ogre would dine on the last remaining guests.

Gutta cavat lapidem, non vi sed saepe cadendo

"Dripping water erodes rock, not by force but by persistence."

January 2021:  The Department of Justice subpoenas cell phone location data from Google to identify who was in the Capitol on January 6.

May 12, 2022:  The January 6 committee issues subpoenas to Rep. Kevin McCarthy and four other House Republicans.

June 22, 2022:   The Department of Justice executes a search warrant at the home of former Acting Assistant Attorney General Jeffrey Clark, taking his computer and cell phone.

June 22, 2022:   The Department of Justice simultaneously seizes the cell phone of Trump lawyer and Big Lie advocate John Eastman.

July 2022:  Trump associate Roger Stone and his wife agree to pay $2.1 million to the IRS to settle their liability for back income taxes.

August 3, 2022:  It transpires that the grand jury investigating the January 6 insurrection issued subpoenas to former White House counsel Patrick Cipollone and Patrick Philbin.

August 8, 2022:  The FBI executes a search warrant on Donald Trump's quarters at Mar-A-Lago.

 

Yesterday we learned more about the pardon list

Amusement and consternation followed the revelation earlier this week that retired law professor John Eastman, one of the team that worked to undo the 2020 election in the waning days of President Trump's term, had sent an e-mail to Mr. Trump's personal attorney Rudy Giuliani shortly after the January 6 insurrection.  Professor Eastman wrote, "I've decided that I should be on the pardon list, if that is still in the works." 

What "pardon list"?  Who was working on it?  The Select Committee had hinted two weeks ago that several lawmakers had asked for pardons.  Yesterday's hearing opened the door a little further when witnesses testified that six staunch House supporters of President Trump had asked for pardons: Mo Brooks of Alabama, Matt Gaetz of Florida, Andy Biggs of Arizona, Louie Gohmert of Texas, Scott Perry of Pennsylvania, and Marjorie Taylor Greene of Georgia.

How many more names were on the White House pardon list?  I think we're going to find out.

When it absolutely, positively has to be in the vice president's hands overnight, call Senator Ron Johnson

Senator Ron Johnson of Wisconsin has received some unwanted fame after being outed yesterday as a bit player in the attempt to steal the 2020 presidential election.  His role was to deliver to Vice President Pence envelopes with the ballots of fake electors from Wisconsin and Michigan.  One of his staffers, Chris Riley, texted an aide to the vice president just after noon on January 6, before the count started, telling him that "Johnson needs to hand something to VPOTUS please advise."  When he told the aide that the "something" was an alternate (i.e., fraudulent) slate of electors, the aide told Mr. Riley not to give the envelope to the vice president.  Asked for comment, Senator Johnson said merely that he had "no idea" who had delivered the fraudulent ballots to his office, leaving the inference that his office attempted to deliver the ballots to Mr. Pence as an incidental sort of constituent service and not as any part of a scheme to steal the election.

Senator Johnson has not posted anything yet on his official Facebook page about the spotlight that the January 6 committee cast yesterday on his role as a minor political bagman, but his constituents aren't waiting for him to respond.  They've flooded his recent posts on the Keystone XL pipeline and the danger of vaccinating babies against Covid with comments on his newfound national notoriety. 

The pithiest comment about the Wisconsin portion of the plot came from the executive director of the Wisconsin republican party, who on January 4 texted someone the message "Freaking Trump idiots want someone to fly original elector papers to the senate President.  They're going to call one of us to tell us just what the hell is going on."  We'll learn more when the hearings resume tomorrow.

A song for Rudy Giuliani and his pardon list

John Eastman, a retired law professor, told the January 6 Special Committee that he had e-mailed Rudy Giuliani shortly after the January 6 insurrection, writing "I've decided that I should be on the pardon list, if that is still in the works."  He joins the ranks of 29 Congresspeople (only one so far has been outed) who requested pardons in the last days of the Trump administration. 

Who kept the pardon list?  Mr. Giuliani, who was President Trump's personal attorney at the time?  Jared Kushner, the president's son-in-law and backstage gatekeeper?  Or someone else inside the White House?  Whoever it is, it deserves a bit of verse.  This one's to the tune of "I've Got a Little List" from Gilbert & Sullivan's operetta "The Mikado":

 

If someday it should happen that a pardon must be sold,

I‘ve got a little list, I’ve got a little list

Of conspirators and plotters whose misfortunes are now told,

And who all want on my list, who all want on my list.

There’s the crazy law professor who thinks Pence can pick the Prez,

And the Congressmen and women who repeat what Eastman says,

“Ordinary tourists” who invade the House’s floor,

The folks who take them up and down the stairs the day before,

Promoters of the Big Lie – well, I’m sure you get the gist,

They all want on my list, they all want on my list.

 

Footnote for fans of Professor Eastman:  His Wikipedia entry ends with this intriguing note:

Other

On January 7, 2021, Eastman edited this Wikipedia article to portray his post-election role in a more favorable light. His editing was reverted due to conflict-of-interest rules of Wikipedia, and on January 9 he appealed on the article's talk page, where some changes were approved but others were denied.^[118]

An old Boomer's "delete" button

Last week former president Donald Trump denied the claim of reporter Maggie Haberman that he had flushed documents down a White House toilet.  Ms. Haberman makes the claim in her forthcoming book, Confidence Man, according to a report from Axios.

Mr. Trump is famous for not using e-mail and avoiding computers, both of which have more modern means of deleting unwanted information - hence the thought that inspired today's caption.

Women, children, and CPAs first!

As the S.S. Trumptanic takes on water, the former president's outside accountants have headed to the lifeboats.

What will New York's indictment of Donald Trump look like? The attorney general has released a draft

Amidst the news of the past week is the news that Letitia James, the attorney general of the State of New York, filed in state court a 115-page document with the unassuming name "Supplemental Verified Petition."  The case in which she filed it, however, is entitled "State of New York v. The Trump Organization, Inc." and includes as defendants three companies controlled by the Trump family, the law firm Morgan, Lewis & Bockius and one of its partners, his accounting firm, his New York land use lawyer, his children Donald Jr. and Ivanka, and the former president himself.

Some months ago it was reported that Mr. Trump was being investigated for inflating the value of his assets for tax purposes that the stories only vaguely described.  I read the initial report as being in insignificant sort of flexible valuation where a property owner might claim one value of the property when refinancing and a lower value when appealing its property tax assessment.

Ms. James didn't spend the 115 pages of her petition to talk about property taxes.  Rather, she laid out in painful detail (painful, if you're one of the defendants) the changes in value that Mr. Trump's organization indulged in, not to save a few dollars its property tax bills but to mislead banks into financing his enterprises.  She asks the court to compel Donald Trump, Donald Trump, Jr., and Ivanka Trump to testify under oath before the office of the state attorney general, and in the case of the elder Mr. Trump, to produce documents and certify that he has produced all the responsive documents, subject, as Ms. James demurely notes on page 112 of her petition, to their right "to invoke the Fifth Amendment Privilege on the record in response to any specific question." 

Ms. James laid out her reasons to compel the Trump family to testify in much the same form as the government does in an indictment.  For example, she notes on page 37 that in 2011 Ivanka Trump rented a penthouse apartment in Trump Park Avenue and was given the option to buy the unit for $8,500,000.  In financial statements from 2011 and 2012, however, the Trump Organization valued the apartment at $20,820,000 and did not disclose that it had granted Ms. Trump the right to buy it for $8,500,000.  In 2013 the Trump Organization upped the unit's value to $25,000,000.

On the same page, the state asserts that in October 2015 Ivanka Trump acquired an option to buy a different Trump Park Avenue unit for $14,264,000 - a unit whose value the Trump Organization had reported as $45,000,000 the year before.  The petition cites to documents that New York obtained from Mr. Trump's accountants.

Why is it important that the Trump Organization made these allegedly false statements to banks with the intent to borrow money?  It's because of 18 USC §1344, the provision of federal law that makes it a crime to "knowingly execute a scheme or artifice to defraud a financial institution" or to obtain credit from a financial institution "by means of false or fraudulent pretenses, representations, or promises."  The penalty is a fine of up to $1 million, or up to 30 years at Club Fed, or both.  The statute of limitations on federal bank fraud is 10 years.

The New York attorney general isn't in charge of enforcing federal statutes.  She can, however, prosecute violation of §175.45 of the New York penal code, under which a person who "knowingly makes or utters a written instrument which purports to describe the financial condition or ability to pay of some person and which is inaccurate in some material respect" commits a class A misdemeanor.  Class A misdemeanors are punishable by up to 364 days in prison and a fine of up to $1000.  The attorney general also has the authority to bring a civil action, such as this one, against persons who "engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conduction, or transaction of business."  (Pages 5-6, citing New York Executive Law §63(12).

A New York Class A misdemeanor is small potatoes compared to the federal punishment, but New York's laws don't stop with §175.45.  Section 190.65 of the New York penal code defines the crime of "scheme to defraud in the first degree" to include "a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person [think 'from more than one lender'] by false or fraudulent pretenses, representations or promises," if the defendant obtains property worth more than $1,000 from the victims.  Committing a scheme to defraud in the first degree is a Class E felony, punishable by up to 4 years in prison and by a fine of up to the greater of $5,000 and "double the amount of the defendant's gain from the commission of the crime."  The petition helpfully describes or identifies the "more than one person" at whom the Trump Organization directed its misrepresentations: "counterparties, including financial institutions, other lenders, and insurers" (page 8); Capital One, a lender (pages 41-42); Deutsche Bank (pages 46-49); and Zurich North American, an insurance company (pages 51-53).

The attorney general's petition is not an indictment, but it does read as if it's fairly close to being one.  If I were any of the persons it names, other than Donald Trump himself, I'd be talking with my lawyers about getting a plea bargain and some immunity in exchange for testifying.