It’s Over

 It is Over

The GOP needs a better candidate

 

The former president’s legal problems continue to mount. There were three recent and significant developments in his various criminal cases that spell the end of his candidacy for President in 2024.

 

The judge in the D.C. criminal case brought by special counsel Jack Smith issued a protective order largely tracking what the prosecution requested that substantially limits the former president’s ability to try his case in the media or use the power of the pulpit to influence or intimidate those who might hear the case or testify against him. He can only comment on evidence already made public in other proceedings. He cannot share or keep copies of the documents the prosecutor shares with his defense team. He cannot make public statements about potential witnesses, the prosecution team members or court personnel. These are usual limits in federal criminal cases and violations will be dealt with promptly and harshly. The former occupant of the White House has a hard time keeping his mouth shut about those who cross him, and I expect he will see the inside of a jail cell if he violates the terms of the order. 

 

The next shoe to drop was the draft of a law review article written by two leading conservative Republican law professors, one of whom is a co-founder of the Federalist Society which recruits and trains conservative judges, promotes conservative judicial candidates and provides legal research that in used to promote conservative values and positions. The current “originalist” philosophy used by conservative jurists to interpret the Constitution only to determine what the founding fathers meant when drafting laws originated in the Federalist Society. All the former president’s judicial appointments to the Supreme Court are Federalist members, as are Justices Clarence Thomas and Samuel Alito. 

 

The draft law review article traces the origins of Article Three of the Fourteenth Amendment which reads as follows:

 

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

 

The authors conclude this provision is self-executing which means the former president does not have to be convicted of “insurrection” or giving aid to the enemies of the Republic to be declared ineligible to hold the office of president, even if elected. What this means is that state election officials can determine he is not eligible for a place on the ballot, even if he wins his party’s primary elections or is nominated to run at its convention. All they must conclude, based upon available evidence is that he “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The burden would then switch to him to prove in a court of law that he did not do either of those things before he could appear on the ballot. Should enough states prevent him from appearing on their 2024 election ballots to preclude him being able to secure the necessary electoral votes, his candidacy would be over. Republicans in Congress do not have the numbers to remove this disability. For a party claiming legitimacy under the Constitution, this is a hard mountain to climb.

 

The final blow to the former president’s political life is the indictment issued by a grand jury in Georgia. This state court proceeding, unlike the federal cases in Washington, D.C. and Florida, is not subject to a presidential pardon or interference by the Federal Government. The indictment charges the former president and 18 of his lawyers and aides of illegally trying to change the results of the presidential election that Joe Biden won in Georgia. It uses a legal proceeding used to go after large scale criminal enterprises such as organized crime families and street gangs.

 

The Georgia indictment tracks much of the now familiar evidence of the former president and his legal team to get Georgia officials to change the result of Georgia’s election win for Biden. It alleges a broad conspiracy to send slates of fake electors from Georgia and other states to Congress and have then Vice-President Mike Pence recognize them instead of the legally constituted electors when certifying the Electoral College vote. It also charges perjury, voting machine tampering and other criminal acts. The indictment lists 161 specific acts the former president or his co-conspirators took to further their scheme to steal the presidential election in Georgia and elsewhere. 

 

These developments clearly lead rational observers on the right and left to conclude that the GOP needs to pick someone other than the former president to challenge President Biden next year. If only the hard right who control the GOP could see the light. 

 

Indictment Trouble

 The latest indictment spells trouble

Former President Donald Trump¹s second federal indictment for trying to overthrow our democracy, which dropped on Tuesday, is a “speaking indictment.” It spells out what the defendant allegedly did and why those acts are illegal in simple, easy-to-understand language. I encourage everyone to read it. 

The new charges center on several conspiracies to overturn the result of 2020 presidential election. The indictment contains four charges, a conspiracy to defraud the United States, a conspiracy to obstruct an official proceeding, obstruction of and an attempt to obstruct an official proceeding and a conspiracy to obstruct the right to vote. It covers the period leading up to the 2020 election through January 2021.

First, some definitions.

 
A conspiracy is an agreement between two or more people to commit a crime. The criminal acts do not have to be successful or reach the desired outcome, there just must be an agreement and an actual criminal act or acts to try and achieve the desired result.

 
An indictment is just an outline of why the government believes a crime has been committed. It is not proof of guilt or a conviction. Under our system of laws, one charged in an indictment is presumed not guilty until the government proves the defendant¹s guilt beyond a reasonable doubt in a court of law.

 
An indictment is filed after the government presents actual evidence, testimony, and documents, to a grand jury made up of citizens like you and me which is sufficient to convince a majority of the grand jurors that crimes have probably been committed by the defendant.

 
The newest indictment is interesting for what it does and does not contain. It does not charge the defendant with treason or sedition. It specifically mentions that the defendant has a First Amendment right to tell lies about who won the election and to use legitimate means to challenge election results without crossing the line into criminal behavior. It alleges that the chairman of the Republican National Committee helped to further the criminal conspiracy involving the use of fake electors from several battleground states. It tells us that a co-conspirator was willing to use the military to suppress protests if their scheme was successful. The evidence outlined in the indictment showing the defendant¹s knowledge and acts comes exclusively from Republicans who were the defendant¹s close associates or employees. The indictment does not name or charge the other co-conspirators, but the words and actions attributed to them leads easily to their identities. They know who they are and now have the option of testifying for the government in exchange for reduced sentences or facing charges in this or a separate case and facing significantly more time behind bars.

 
The evidence outlined in the indictment shows that the defendant lost the 2020 election and knew that he lost that election. It says he falsely claimed that the battleground states where he lost, including Wisconsin, were the result of massive voter fraud to “create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”After exhausting all legal means to challenge the election results, the defendant and his co-conspirators then allegedly agreed to use illegal means to obstruct the government from counting and certifying the election votes, to obstruct the congressional proceeding on January 6 to certify the election results and to deprive citizens of the right to vote and have those votes counted. 

The means used allegedly included the false claims of election fraud to try and get state legislatures to overturn their election results; the creation of slates of fake electors in those battleground states, including Wisconsin, which were to be forwarded to Congress and Vice President Mike Pence so that he could recognize them instead of the official electors sent by those states and throw the Electoral College vote in favor of the defendant; trying to convince Pence to change the result of the election in the certification proceeding on January 6; and inciting the crowd assembled at the Capitol on January 6 to riot and prevent Congress from certifying the election result and naming Joe Biden as the newly elected president. 

Those of us who watched the public hearings conducted by the House Oversight Committee investigating the insurrection on January 6 saw most of the evidence outlined in the indictment as many of the defendant¹s administration officials testified about the events they witnessed and his conversations they overheard.  

This case ultimately involves holding the defendant accountable for trying to overthrow American institutions which have insured the peaceful transfer of power between administrations since the inception of the republic. We have arrived at this moment, in part, due to the failure to hold similar attempts to overthrow our democracy to account. Those included failing to hold the ringleaders of the Confederacy responsible for the Civil War and Gerald Ford¹s pardon of Richard Nixon before he could be tried for Watergate and other misdeeds while in office. 

It is time for us to put this mad quest for power to rest and let those who would subvert our democracy know their efforts will not be tolerated.