Isaac Laquedem

"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.

The failed promise of Donald Trump

            Even before Willis Carrier invented the electric air conditioner in 1902 and made it possible for the government to sit in the District of Columbia through the summer, our nation’s capital fostered ideal conditions for political inbreeding.  Bright young people took posts staffing Congressional offices and committees, got to know one another, and then either went to work for federal agencies on their way to becoming lobbyists, or moved back home to enter elective politics for themselves, keeping the insular system in action for another generation.

            Much like a refrigerator, every now and then the system needs a deep cleaning.  About every 30 to 40 years America’s voters bring out the Electrolux and point it at the capital.  I'd buy American and say that they bring out the Hoover, but for what happened in 1928.

            The Carter Administration (1977-1981) was the voting public’s most recent attempt at invigoration, when the president brought in a large team of Washington outsiders to leaven the Potomac party.  Earlier housecleanings occurred, not so extensively, under Dwight Eisenhower (1953-1961), Theodore Roosevelt (1901-1909), James Garfield (1881), and Andrew Jackson (1829-1837).    

            The first revolutionary president was Andrew Jackson, a frontiersman who followed the six aristocrats who had started the country off, and who espoused the interests of the common man (women did not then vote) against those of the ruling classes.  He viewed the Second Bank of the United States, a federally-chartered creation directed by Philadelphia aristocrat Nicholas Biddle, as the political plaything of the powerful, and in 1832 he vetoed a measure to extend its charter.  He stated in his veto message that the bank was “unauthorized by the Constitution, subversive to the rights of States, and dangerous to the liberties of the people.”  (I’m going to need a separate post to unpack everything in Jackson's message.)

            James Garfield, the second of our reformers, did not even want the job – he went to the Republican convention to nominate John Sherman, and in the middle of his speech someone shouted out, “We want Garfield!”  He was nominated on the 36^th ballot, defeating among others the war hero and past president Ulysses Grant.

            President Garfield chose three graduates of Harvard or Yale for his cabinet of seven.  Unusually for his time, he also picked three men who came from humble circumstances.  One was an autodidact, and another ceased his schooling at 15.  He opened the top ranks of government to people outside the usual American ruling classes, and would likely have been even more reforming had he not been assassinated in 1881.

            Theodore Roosevelt was not elected as a reformer.  The New York political machine got him chosen as William McKinley’s vice president for the 1900 election to get him out of his position as the governor of New York.  When McKinley was assassinated in 1901, Roosevelt owed his presidency to no one.  He quickly set about breaking up large business combinations and promoting the rights of labor.

            Let’s look at the 40 years since the Carter Administration ended.  Our ballots included George H.W. Bush or his son George W. Bush in 1980, 1984, 1988, 1992, 2000, and 2004.  Our ballots included Bill Clinton or his wife Hillary Clinton in 1992, 1996, and 2016.  Our ballots might reasonably have included Hillary Clinton or Jeb Bush in 2008 and 2016.  The election of 2020 was only the second since 1976 that had neither a Clinton nor a Bush on a primary or general ballot.  It’s hard to say that the system changed much during a period when two families supplied the candidates for forty years of elections.

            Across First Street NE from the Capitol, the Supreme Court has been busy defending the sinecures of the inside-the-Beltway establishment, most notably in its 2010 decision in the Citizens United dark money case.  The court held that the government could not limit the amounts that corporations, labor unions, and independent political groups could spend on political speech, regardless of the ultimate source of the money, on the basis that corporations and labor unions were “people” entitled to the protection of the free speech clause of the First Amendment.  Funds from shadowy sources have come to play a large part in national politics ever since.

            Returning to 2016: among the 17 serious Republican candidates were three who had never held any government position, either elective or appointive: Carly Fiorina, Ben Carson, and Donald Trump.  Each portrayed his or her inexperience in government as a virtue, Mr. Trump most successfully.  In his campaign speech of August 18, 2016 in Charlotte, North Carolina, after listing some specific campaign promises, he said:

As you know, I am not a politician. I have worked in business, creating jobs and rebuilding neighborhoods my entire adult life.  I’ve never wanted to use the language of the insiders, and I’ve never been politically correct – it takes far too much time, and can often make more difficult.

Sometimes, in the heat of debate and speaking on a multitude of issues, you don’t choose the right words or you say the wrong thing. I have done that, and I regret it, particularly where it may have caused personal pain. Too much is at stake for us to be consumed with these issues.

But one thing I can promise you is this: I will always tell you the truth.

I speak the truth for all of you, and for everyone in this country who doesn’t have a voice.

I speak the truth on behalf of the factory worker who lost his or her job.

I speak the truth on behalf of the veteran who has been denied the medical care they need – and so many are not making it. They are dying.

I speak the truth on behalf of the family living near the border that deserves to be safe in their own country but is instead living with no security at all.

Our campaign is about representing the great majority of Americans – Republicans, Democrats, Independents, conservatives and liberals – who read the newspaper, or turn on the TV, and don’t hear anyone speaking for them. All they hear are insiders fighting for insiders.

These are the forgotten men and women in our society, and they are angry at so much on so many levels.  The poverty, the unemployment, the failing schools, the jobs moving to other countries.

I am fighting for these forgotten Americans.

            His specific campaign promises, which I did not quote here, are unremarkable.  President Trump failed at some and broke others, as is the wont of politicians.  His peroration, however, recalled the language of Andrew Jackson, of Theodore Roosevelt, of Franklin Roosevelt.  He cast his appeal to Americans in the heartland (if you live there) or the flyover states (if you don’t) who believed, with some reason, that the elites of both parties sought their votes but not their welfare.  And it is that aspect of his presidency that I describe as his failed promise, not “promise” in the sense of his commitment to his voters, but “promise” in the sense of the hope that they thought he was offering.  In the end Mr. Trump turned out to be a purveyor of both failed promise and broken promises, rather as if Andrew Jackson had committed to the public that he would close down the Second Bank of the United States to protect farmers and small businesses from its rapacity, and then upon being elected had bought bank stock and put his son-in-law on the board of directors.

Rep. Marjorie Taylor Greene stamped out

Twitter shut down the personal account of Rep. Marjorie Taylor Greene, stating or implying that its system of artificial intelligence had detected a "fifth strike" in her tweets that in the AI's (and hence Twitter's) view are misleading enough about Covid to cause harm.  MSN's article on her partial expulsion from the Twitterverse (she can still use her official House account) demurely contrasts one of her tweets with an observed fact about Covid deaths: 

Shortly before her weeklong suspension from Twitter, she claimed in a tweet that the virus was “not dangerous for non-obese people and those under 65”. According to the Centers for Disease Control and Prevention (CDC), people under 65 account for nearly 250,000 of US deaths involving Covid-19.

It's pleasing to see Twitter acknowledge that it's more than just a passive publisher of misinformation, similarly to its action in January last when it expelled Donald Trump.  Am I perhaps too cynical in noting that it didn't expel Mr. Trump until after January 6 when it became clear that the coup attempt had failed?  Twitter's management, like the Supreme Court, may align with Finley Peter Dunne's famous line, "No matther whether th' Constitution follows th' flag or not, th' Supreme Coort follows th' election returns."