Isaac Laquedem

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.

Wendell Phillips reminds us that history sometimes rhymes

The recent stalemate among the House republicans over their choice of speaker and the current threats of Speaker McCarthy to refuse to raise the ceiling on the national debt so that the nation can pay its bills brought to mind this delightful observation from a while back:

"A few years ago * * * the Republican party dared to refuse the appropriations for support of government - the most daring act ever ventured in a land that holds Bunker Hill and Brandywine.  They dared to persevere some twenty or thirty days.  It seems a trifle; but it is a very significant straw.  Then for weeks when Banks was elected, and a year ago, again, the whole government was checked till the Republicans put their Speaker in the chair."

Does that bring to mind Newt Gingrich shutting down the government, or Lauren Boebert holding up the organization of the House in January?  The author of the quoted words was Wendell Phillips (1811-1884), the famous orator and abolitionist.  They're from a speech that he gave in Boston on February 17, 1861.  The four omitted words represented by the three asterisks give the joke away: they are "while Pierce was President."

The House Democrats should pick a republican for speaker, but not just any republican

About a year ago, a republican political strategist named Sarah Longwell wrote in The Bulwark that the republican party was facing an ‘extinction event’ that resulted from Donald Trump having converted it into the MAGA party. The flailing efforts of the republican House majority to elect a speaker yesterday and so far today also are another sign that the extinction event has descended on the party.

Its schism into the group of the shamed and silent and the smaller and louder Trump-MAGA group brings back memories of the 1854 fracturing of the Whig Party, with some important differences, the largest of which is that the Whig Party fell apart over an irresolvable policy dispute: should slavery expand, continue, or be eliminated?  No common ground among the factions was available, as the policy difference was over a stark yes-or-no question.

By contrast the modern republican party gave up any pretense of policy ambitions years ago under Newt Gingrich’s leadership.  It has no policy; its modest platform for the 2020 election could be described as “policy” only in the way that a fig leaf can be described as “clothing.”  But where can the remaining rational republicans find a home?  On philosophical grounds they can’t join the Democratic Party, and without a billionaire or two as a funding source and a media presence (their henhouse won’t stand without a Fox to advertise it) they can’t start a new national party.  The two-party system needs two strong and responsible parties, and the republican leadership is too frightened of its cohort of crazies to make the effort to return it to reason.  Maybe what saves the system is not right-wing repentance but a variant of the solution played out in the Utah senate race, where the Democrats tried to elect a rational conservative to replace Mike Lee, something like the plain-bellied Sneetches temporarily donning stars.  The Democrats could contribute to bringing the opposition toward reason by picking a few moderate republican representatives and then voting as a bloc for those representatives, one after another, until one of their candidates from across the aisle attracts the votes of 10 sane republicans.  Odd as it would be for the Democrats to vote for a republican for speaker, doing so is their one way to get a speaker of the House who won't have had to make promises to the Boeberts and Gosars of the republican caucus.

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.

 

The Alito Court finishes its first year with a bombshell

Earlier today, to the surprise of none, the Supreme Court released its opinion in Dobbs v. Jackson Women's Health Organization.  The court overruled Roe v. Wade, 410 US 113 (1973) and ruled that the United States Constitution does not prohibit states from regulating or prohibiting abortions, even as soon as one day after conception.  The majority opinion, in which five justices joined, is one of three constitutionally significant opinions that the Alito court issued this term.

"The Alito court?" you say.  "Not the Roberts court?"  Don't we customarily refer to the Supreme Court by reference to the chief justice, such as "the Rehnquist court" or "the Warren court"?

Well, yes, until now.  Pundits have today focused on the majority opinion, written by Justice Samuel Alito, and the dissenting opinion, a joint production of Justices Breyer, Sotomayor, and Kagan.  The two important opinions in the case, however, are the concurring opinion of Justice Clarence Thomas and the sort-of-concurring opinion of Chief Justice John Roberts.  Justice Thomas's opinion points the way toward returning the United States to the 18th century.  Chief Justice Roberts's opinion reveals that the Supreme Court is no longer the Roberts court; it is the Alito court.

Why?  Let's revisit the history of this case.  Dobbs is a Mississippi official.  Jackson Women's Health Organization provides abortions in Mississippi.  The state passed a law that criminalized abortions from 15 weeks onward, with an exception for medical necessity.  Jackson sued the state to enjoin (prevent) the state from enforcing the law, citing Roe v. Wade as binding precedent.  Jackson won at the trial level and before the appellate court.  The state appealed to the Supreme Court, which granted certiorari (agreed to hear the case) on the narrow question of "whether all pre-viability prohibitions on elective abortions are unconstitutional."  Mississippi told the court that it should "reconsider the bright-line viability rule," and that a decision for the state would "not require the Court to overturn" Roe v. Wade.

Only after the Supreme Court agreed to hear the case did Mississippi change its argument, pressing the court to hold not just that this specific law was constitutional, but that the court should overrule Roe v. Wade entirely.  The court did so.  This fact brings us to John Roberts's opinion.

Chief Justice Roberts concurred in the result: that is, he agreed with the majority that the law was constitutional.  He parted with Justice Alito and his cohort, however, when they struck down the rule of Roe v. Wade.  He agreed with the majority that the viability test of Roe v. Wade "should be discarded," but wrote that a woman's right to terminate her pregnancy -- a right that he specifically acknowledged -- "should extend far enough to ensure a reasonable opportunity to choose, but need not extend any further - certainly not all the way to viability."  He then cited a longstanding principle of judicial restraint: the court should decide only what is necessary to its decision, but not more.  "If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more." [The italics are his.]  To continue to quote the chief justice: "The Court's opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us."

What can we infer from Chief Justice Roberts's opinion?  I think it's fair to conclude that he attempted to drag his five colleagues back from their full-out repudiation of Roe v. Wade, not because of the merits of the case but because of how the judicial process is supposed to work.  He failed.  Not a single justice joined him.  We know from Justice Alito's draft opinion where the majority started from, and we know from Justice Alito's final opinion where the court ended up.  Chief Justice Roberts's concurrence in holding the law valid coupled with his refusal to overrule Roe v. Wade entirely means that the court no longer belongs to him.  It belongs to Samuel Alito.  John Roberts is now merely a passenger along for the train ride, praying that the engineer doesn't speed around a sharp curve.

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.

Theodore Roosevelt had the root causes of today's inflation pegged -- in 1907

Heather Cox Richardson, a professor of American History at Boston College who is now one of the most followed persons on Facebook, today tied together the consolidation of American and international industry into a few large combines that have an outsize effect on prices (i.e., inflation at the consumer level), against which President Biden now fights.  Do corporations charge high prices to cover their high costs?  Professor Richardson points out that in May Shell reported its largest quarterly profits ever, more than $9 billion.  (Pro tip: instead of buying gasoline, buy the stock.)

Where, then, do the causes of inflation come from?  Let's go back to August 20, 1907, and a speech that President Theodore Roosevelt gave in Provincetown, Massachusetts at the dedication of a monument to the Pilgrims.  The speech itself wouldn't be much remembered today (even Isaac isn't old enough to have been there) but for President Roosevelt having unveiled a phrase that echoes to this day: "malefactors of great wealth."  He meant the robber barons of the era and their successors such as John D. Rockefeller and Andrew Carnegie.  He talked about his administration's efforts to break up industrial combines, of the sorts that Professor Richardson wrote about today.  Here's his descriptor, in context: "It may well be that the determination of the Government (in which, gentlemen, it will not waver), to punish certain malefactors of great wealth, has been responsible for something of the trouble; at least to the extent of having caused these men to combine to bring about as much financial stress as possible, in order to discredit the policy of the Government and thereby secure a reversal of that policy, so that they may enjoy unmolested the fruits of their own evil-doing."

A modern politician wouldn't speak in such complex sentences, but would nevertheless recognize the thought: the oligarchs of the United States seek to strain the public's finances as much as possible so that they can discredit the government and line their pockets, untroubled by subpoenas, surveillance, society, and surtax.

New fence installed to protect nation from Samuel Alito

That's what I wish the reason was for fencing in the Supreme Court.  Instead, I'm taking the fence as having a deeper symbolism.  It's a striking visual image of how far the Court has gone to distance itself from the rest of the nation.

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.