Distinguished persons of the week: They did their jobs
Columnist|
June 26, 2022 at 7:45 a.m. EDT
After five hearings, the House Jan. 6 select committee has surprised, delighted and impressed defenders of democracy. The members have been entirely professional and thoroughly dedicated to pursuit of the truth. They managed to present concise and exquisitely planned “episodes" to tell the story of an astounding conspiracy to overthrow American democracy.
Plainly, the members — especially Reps. Liz Cheney (R-Wyo.) and
Adam Kinzinger (R-Ill.), who essentially sacrificed their future in the party
(at least the current GOP) — and the staff have demonstrated that, given the
right mission and the right people, lawmakers in defense of democracy can
uphold their oaths, investigate wrongdoing and educate the American people. (It
sure helped not to have MAGA Republicans on the committee to interrupt, disrupt
and obstruct the investigation.)
However, without Republican witnesses to cooperate — from White
House attorney Eric Herschmann to Arizona House Speaker Rusty Bowers to former
vice president Mike Pence’s staff to the three Justice Department lawyers who
testified Thursday — a full portrait of the coup attempt would be impossible.
They cooperated, told the truth and thereby assisted in uncovering the greatest
betrayal by former president Donald Trump and his cronies in American history.
(This makes Watergate look like a Boy Scout jamboree.)
And yet the people who will stand out to me, who showed courage above and beyond what ordinary Americans should be expected to do, were Ruby Freeman and Shaye Moss. As they related in their testimony, for doing their election duties honorably and competently, they were threatened and said they were defamed. Their lives and the lives of Freeman’s mother (whose house was targeted) were endangered; their careers were destroyed and their lives turned upside down. They lost the sense of safety and security all Americans are entitled to enjoy in their homes and communities.
Contrast their conduct with that of former officials and current
lawmakers who can return to comfy lives and lucrative careers but shirk their
obligation to testify in public (e.g., Pence, former White House chief of staff
Mark Meadows, former White House counsel Pat Cipollone, Republican House
members). They have chosen to deny calls for help, presumably just to preserve
their future in the GOP.
Unlike those cowering figures, Freeman and Moss went in front of
cameras — again exposing themselves to the wrath of the mob — and testified
about the traumatic events surrounding the attempt to overthrow the 2020
election.
Much of the country has been debating since Trump arrived on the
scene (and frankly, before) the ongoing threats to democracy from right-wing nationalists,
the vulnerability of our institutions and the dysfunction of our government.
Trump utterly failed the country; his successor is stymied by a
radicalized opposition determined to see him fail. The Senate is gridlocked by
a minority party wielding the filibuster to, among other things, preserve voter
suppression and subversion laws. The Supreme Court has been overtaken by rank,
radical partisans whose decisions cannot be defended on the merits and whose
public utterances and tone lack any semblance of “judicial temperament.” We
seem stuck because structural advantages for the minority (the Senate, the
electoral college, the right-wing Supreme Court) make real reform impossible.
But Freeman and Moss remind us that ultimately democracy depends
on our fellow Americans’ civic virtue, a nearly extinct phrase. Our system
cannot function without citizens who take their obligations seriously,
demonstrate strength of character and are willing to make sacrifices for the
common good. Just as our military serves selflessly, we need civilians to step
up to the plate in defense of truth and democracy, decency and decorum. We need
more people like Ruby Freeman and Shaye Moss in public life if we are to muddle
through a dangerous and disturbing period in our history.
For their decency, courage, honesty and patriotism, we can say
well done, Ruby Freeman and Shaye Moss. And thank you.
The Supreme Court radicals’ new precedent: Maximum
chaos
By Dana Milbank
Columnist|
June 25, 2022 at 1:28 p.m. EDT
Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.
In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”
Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.
The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.
Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.
Ruth Marcus: The radical conservative majority’s damage to the Supreme Court cannot be undone
The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.
Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.
After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”
Opinion: The Supreme Court’s radical abortion ruling begins a dangerous new era
Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”
Alito,
in his (characteristically) sneering opinion in the abortion case, dismissed
Roberts as unprincipled and public opinion as an “extraneous” concern. He
likewise dismissed the pain the ruling would cause, writing that “this Court is
ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He
washed his hands of answering the “empirical question” of “the effect of the
abortion right … on the lives of women.”
The dissent said the majority’s refusal to address real-world consequences “reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.” It is a “radical claim to power,” the dissent went on, to assert “the authority to overrule established legal principles without even acknowledging the costs of its decisions.”
The liberals described the bedlam to come, with suddenly unanswered legal questions about rape, incest, threats to a mother’s life, interstate travel for abortion, morning-after pills, IUDs, in vitro fertilization. “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment,” they wrote.
Molly Roberts: My pregnancy was unlucky. My abortion wasn’t.
Thomas’s gun ruling was much the same, 63 pages of a cherry-picked history of gun laws, with no concern for the real-life effect of allowing millions of people to carry handguns, with virtually no restriction, in the streets of New York or Los Angeles. Breyer, writing for the same liberal justices in dissent, upbraided the conservative majority for unleashing more guns “without considering the state’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision.”
Alito added a concurring opinion to express contempt for Breyer’s points about gun violence, saying “it is hard to see what legitimate purpose can possibly be served” by his mentions of mass shootings and growing firearm mayhem.
The
radicals have cast off any pretense of judicial restraint. Now the chaos
begins.
Did Trump believe his big lie? It’s irrelevant to
proving his guilt.
Regardless
of whether he thought the election was stolen, the place to look for ‘criminal
intent’ is in any illegal acts in the aftermath
Perspective by Ryan Goodman, Norman Eisen and Barbara McQuade
June 22, 2022 at 6:17 p.m. EDT
Former prosecutors and other experts essentially agree that proving criminal intent poses one of the biggest legal challenges to indicting former president Donald Trump for his role in the attacks on the 2020 election. “Mens rea,” Latin for “guilty mind,” is required to convict. This generally means that the offender must have acted purposely, knowingly, recklessly or negligently in committing the criminal act.
It’s tempting, in assessing Trump’s state of mind, to focus on whether he genuinely believed his assertion that the presidential election was “stolen” — that he had beaten Joe Biden and that therefore his subsequent efforts were merely means well within his power aimed at setting things right. If you can prove that he did know that he lost the election — that it was not “stolen” from him — you go a long way toward clearing that criminal-intent hurdle.
Certainly, the House select committee investigating the attack on the Capitol on Jan. 6, 2021, is amassing evidence that Trump knew he had lost.
Numerous Trump aides and lawyers have attested to this before the committee.
But so what. For a number of the possible crimes the committee has identified, it doesn’t matter what Trump believed about the election. Focusing on that aspect misses the true test of criminal intent.
He still had no legal right to use forged electoral certificates or to pressure election officials in Georgia to “find 11,780 votes” that did not exist, or to engage in other extralegal means to try to hold onto power. That includes pressuring the vice president to assume powers he didn’t have. State and federal criminal laws prohibit these things. Vigilante justice is against the law, even if you (wrongly) believe you are a victim.
Trump is going back to Georgia. Did he break the law there?
The most recent hearings of the Jan. 6 committee provide plenty of evidence to prove that Trump and a cadre of his closest associates conspired to engage in electoral vigilantism.
First, soliciting state officials to violate their oaths of office in administering elections is a clear state crime across the country, including in Georgia. And Trump did not merely solicit Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.”
Raffensperger wrote in his book, “Integrity Counts,” that he considered Trump to have been making a “threat” to do him harm, and he expanded on that in his testimony before the committee Tuesday. Were Trump’s lawyers to say at trial, “Yes, but our client thought he had won the election,” they would be laughed out of court.
If Trump’s lawyers were to deny the solicitation and the threat, the jury could simply listen for themselves to the full audio recording of the infamous phone call that Trump made to Raffensperger on Jan. 2, 2021. It’s a smoking gun in the hands of Fulton County District Attorney Fani Willis, who has been investigating Trump’s efforts in Georgia, where a special grand jury was seated last month.
It is also immaterial what was in Trump’s head regarding the outcome of the election when he participated in the audacious scheme to falsify alternate slates of electors and get them to Congress to gum up the certification of the election. “President Trump and his campaign were directly involved in advancing and coordinating the plot to replace legitimate Biden electors with fake electors not chosen by the voters,” Rep. Adam B. Schiff (D-Calif.), a member of the select committee, said at Tuesday’s hearing. The evidence provided by witnesses at the hearing backed that up. Arizona House Speaker Russell “Rusty” Bowers (R) testified that Trump and his lawyers repeatedly asked him to remove legitimate electors for Biden and substitute an illegitimate Trump slate. That testimony was supported by additional video testimony from Trump allies including White House and campaign aides and Ronna McDaniel, chair of the Republican National Committee. At Thursday’s hearing, top Trump Justice Department officials testified about Trump’s efforts to promote Jeffrey Clark to attorney general after they refused to sign his draft letter to Georgia election officials advancing the alternate-electors scheme.
What this all describes is the equivalent of submitting a fake verdict form in a judicial proceeding. Whether one truly believed that their preferred candidate won the election, or that the official verdict was flawed, is simply no defense.
The Jan. 6 committee gift-wrapped Trump for Merrick Garland. Is it enough?
It is no wonder so many prominent lawyers associated with Trump refused to participate, as shown repeatedly in testimony Tuesday and Thursday. Even if the lawyers were confident that Trump thought he won and could prove his state of mind in court, it would surely not have cured their misgivings about the illicit methods. Nor should it. Trump’s state of mind in that regard is irrelevant.
The alternate-electors scheme is being looked at by both the Justice Department and the Atlanta district attorney. District attorneys in other jurisdictions where phony certificates were cooked up should also investigate those responsible — including the former president.
Bowers’s testimony showing that Trump and his lawyers John Eastman and Rudy Giuliani engaged in a sustained effort to pressure him to betray his oath of office by taking extralegal steps to overturn the election results would be useful in any Georgia or federal prosecution to show a clear pattern of conduct. So would the testimony of the three Justice Department attorneys who appeared Thursday.
What Trump may or may not have believed about the election outcome was also beside the point when he pressured Vice President Mike Pence to violate his legal duties in the certification of the electoral votes. A lead Justice Department prosecutor told a court that to prove criminal obstruction, Trump would simply have to have known that Pence had a legal duty to recognize the results. As experts have said, the latest evidence presented by the select committee to prove that case is beyond compelling.
Indeed, with its investigatory powers, the Justice Department could develop the evidence even further. That includes considering whether to immunize Eastman, who promoted the idea to Trump that Pence and the state legislatures had powers that they didn’t have. That way Eastman couldn’t invoke his Fifth Amendment right to refuse to testify. He would be compelled to divulge evidence that would probably further incriminate the former president.
What’s more, with those same facts, federal prosecutors may also have a relatively easy case to prove that Trump conspired by “intimidation or threat” to impede an official from “discharging any duties” — a specific charge against both the Oath Keepers and the Proud Boys regarding their involvement in the Jan. 6 attack. Marc Short, Pence’s former chief of staff, testified that the pressure on Pence was “painful” and that, based on the president’s statements, he anticipated a threat to the vice president’s safety. In fact, he went so far as to alert the Secret Service on Jan. 5, 2021.
The
criminal investigation by the Fulton County district attorney has long been
underway and, with a smaller nucleus of facts, may be the first to reach the
stage of indictments. The Justice Department has reportedly launched a multistate
criminal investigation of the false-electors scheme and has issued grand jury
subpoenas that seek communications with any “agent of Donald J. Trump.” The
investigatory powers of both state and federal law enforcement agencies are
substantial, but prosecutors need not make these cases more difficult than they
are. If they focus on Trump’s efforts to engage in vigilante justice, the
intent element of these cases is easily satisfied.
