Roger Fitch and our friends down under at Justinian

 

Stone the Crow

ROGER FITCH ESQ • THURSDAY, MAY 11, 2023

The sexual battery verdict against Trump ... Further peril pending ... Clarence Thomas in the pocket of reactionary benefactor ... Secret gifts sink the remnants of SCOTUS' ethical standing ... Ousting the veto power of state governors ... Voting limitations run riot ... Roger Fitch in Washington  

"Trump's selling point ... has long been his criminality. The MAGA base was compelled by the idea that only a true villain could get them what they want because he would flout all rules and laws in his pursuit of their authoritarian goals. So to claim Trump is 'innocent' is not to deny that he committed a crime, so much as it is to assert that he should be above the law" - Salon   

"Evangelical leaders justified their support for Trump by comparing him to King Cyrus, who ... liberated the Jews from Babylonian captivity, despite himself being a Persian ruler who did not believe in the god of Israel ... Trump, like Cyrus, was seen as an 'imperfect vessel' ... God was using him for the greater good … to hand political and cultural power back to white conservative Christians" - Guardian 

"The belief is that God uses a wicked man as a tool of divine destiny and will" - Salon 

Donald Trump has been found liable for sexual battery and defamation in a New York civil damages case brought by the writer Jean Carroll. The events occurred in the mid-90s in a Bergdorf-Goodman dressing room. 

The defence called no witnesses (Trump was, however, deposed), and it took the jury only three hours to find that he "sexually abused " and defamed Carroll, awarding $5 million in damages.

The wicked ex-president will soon face greater peril in another New York court: the hush-money criminal case. In an own-goal, Trump's D-list Florida lawyer foolishly sued NY State's star witness Michael Cohen, in a local federal court. 

If that case proceeds, Cohen's discovery motions would likely produce damning evidence of Trump's direct participation in the hush-money scheme.

In addition to suing the witness, raging against the Manhattan prosecutor and insulting the judge hearing his case, Trump wants venue for his Manhattan indictment moved to Staten Island, the only New York borough he won in 2020. 

In fact, Judge Juan Merchan seems abundantly qualified: in addition to his position as a judge of the state's Supreme Court (in New York, a trial court), he presides in mental health matters. 

≈   ≈   ≈

Clarence Thomas is a lucky fellow. 

Though born poor and black in a small Gullah community in Georgia, his first language Geechee, he's come a long way. 

Assisted, perhaps, by the liberal affirmative action policies he so despises, he made it to Yale Law School. After graduation, he, like all the conservative members of the present Supreme Court, worked in Republican administrations.

Despite an undistinguished record as the Reagan-appointed chair of the Equal Employment Opportunity Commission, the then 43-year-old Thomas was appointed by George Bush père to a lifetime appeals court position. 

Then, after 19 months as an indifferent circuit judge, he was nominated for the supreme court seat of the retiring, and truly-distinguished, African-American lawyer Thurgood Marshall.

At this point Thomas's ascent hit turbulence, with numerous accusations of sexual improprieties during his spell at the EEOC, most notably, the complaint of one employee, the black lawyer Anita Hill.

Republicans played the colour-card to wedge him on the court, and the lucky judge squeaked in with the votes of 52 senators, at a time when there were 56 Democrats and only 44 Republicans. 

On the court, Thomas has pursued a legal philosophy so reactionary that, until recently, he seldom found himself in the majority and rarely were his dissents joined by other justices. He was a lonely figure who famously never spoke at oral arguments. 

Thomas did what he wanted ethically. He didn't report gifts or favours, as the law required, until 2004 when the LA Times disclosed his extraordinary gifts from Dallas developer Harlan Crow; thereafter, Thomas continued to receive Crow's favours, he just didn't disclose or report them - problem solved!

Clarence and Ginni Thomas: on the take

Now it seems Clarence Thomas's luck may have run out. A series of investigations by ProPublica has revealed that the connections of the justice and developer have only intensified over the years. 

Slate called it quid pro Crow. Now, evidence is emerging that Harlan Crow has actually benefited from his gifts.

It's not just hospitality and holiday, yacht cruises or stays at Crow's tacky retreat in the Adirondacks, but things of more material value, e.g real estate and cash contributions for family members, like his wife Virginia "Ginni" Lamp. Justice Abe Fortas was forced-off the court for far less in 1969.

Thomas was only following in the footsteps of Nino Scalia, who chalked up 89 free hunting trips with rich donors (and litigants), and actually died in bed at an $800-a-night hunting lodge in Texas. 

≈   ≈   ≈

There are now 28 states where the legislature has a veto-proof majority, and 21 of them are controlled by Republicans who pass legislation at will, e.g.  Florida, where the Republican governor DeSantis and a rubber-stamp legislature create chaos while enacting blatantly unconstitutional legislation.

North Carolina may be the most outrageous state. It already had a Republican majority in both houses, but there's a Democrat governor, and the general assembly lacked the supermajority needed to overrule him. 

Now, a previously-loyal Democrat has been persuaded to change sides, giving the Republicans the exact two-thirds supermajority needed to override vetoes by the governor. Did money (lots) change hands?

The only thing that stood in the way of complete Republican control had been the NC supreme court. In 2016 the justices began to be selected on a partisan basis, and at first Democrats and Republicans on the seven-seat court were evenly-balanced, with Democrat-endorsed justices recently holding a 4-3 majority. 

Then, last November's elections gave Republicans a 5-2 court and quelle surprise, the newly-Republican court immediately revisited and retrospectively blessed the highly-partisan legislative gerrymanders that federal courts and the state's previous high court had found unlawful. 

A little history. In 2018, the US supreme court ruled (in Rucho v Common Cause) that partisan gerrymanders were "non-justiciable political questions" best left to the states. 

The then-Democrat-majority NC supreme court accordingly struck-down the Republican gerrymanders, based on the NC constitution's prohibition against partisan gerrymanders. 

It is this precedent that the Republican-majority NC supreme court reconsidered and overruled. 

The NC legislature had already collaterally attacked the previous court's decision by arguing in the US supreme court (in Moore v Harper, still pending), that, under a newly-contrived "independent state legislature theory", a legislature's election decisions are exclusive, trumping the governor and state administration, and even the state's constitution and supreme court rulings interpreting it.

The veto-proof state assembly can now confidently implement voting limitations from 2013 that the 4th circuit found "target African-Americans with almost surgical precision", as well as voting restrictions struck down in 2018 by North Carolina's state courts. 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Our Man in Washington

ROGER FITCH ESQ • THURSDAY, APRIL 6, 2023

Lawyers, guns & money ... Trump turns his indictment into a cash cow ... More guns for Republicans ... Gun originalism ... Judicial manipulation ... Torture memos ... Review of detainee treatment ... Wisconsin Supreme Court on the move ... Roger Fitch reports 

"What kind of person can charge another person, in this case a former President of the United States ... with a Crime, when it is known by all that NO Crime has been committed, & also known that potential death & destruction in such a false charge could be catastrophic for our Country? Why & who would do such a thing? Only a degenerate psychopath that truely [sic] hates the USA!"  - Donald Trump tweet

"Paying hush money to a porn star is the broken tail light of white collar crime - not something you can afford when there's a body in the trunk" - Caitlin Flanagan, in the Washington Monthly

"[I]f Trump has to pay a fine, he will likely steal the money from his campaign funds, lie in official records to disguise the payment, and start the criminal wheel turning again. One constant feature about Trump is he's always committing new crimes to take the place of the ones he’s already gotten away with" - Elie Mystal in the Nation 

≈   ≈   ≈

Tuesday, April 3, 2023 was a Big Day in the States. 

Democrats gained a majority on the Wisconsin Supreme Court, ending fears of dirty judicial tricks in the 2024 elections, and offering hope of breaking the Republicans' gerrymandered lock on the state. 

Chicago elected a progressive Democrat mayor.

The recidivist Donald Trump was criminally charged in Manhattan (see annotated indictment and Statements of Facts).

Outside court, his foolish lawyers vilified the prosecutor. 

A fundraising carnival was already underway. Within 24 hours of indictment, America's worst and most corrupt president raised $4 million from his rube supporters, likely to be spent as Elie Mystal surmised.  

Of Trump's many legal problems, four criminal cases present the gravest danger: "hush-money" payoffs; purloined classified documents; election interference in Georgia; and the January 6 insurrection. 

Hush-money seemed least important, yet even before arraignment, Trump was attacking the NY County prosecutor, the "degenerate psychopath" Alvin Bragg; he's a Democrat, and black, useful for Trump's dog whistles to racist supporters. 

After court, Trump insulted the judge, Juan Merchan, who (perhaps unwisely) had withheld a gag order.

Much has been made of the initial "hush-money" payments. In fact, the case centres, not so much on the legality of payments as on fraudulent statements and falsification of records that offend New York State laws, some rising to felonies when designed to cover up a crime, e.g, violations of federal election law. 

Judge Merchan: family threatened by the Trumpenvolk

Congressional Republicans attacked the prosecution and called the charges "political", ignoring the fact that the same transactions formed the basis for Michael Cohen's conviction during the Trump administration - a prosecution in which Trump was identified as the unindicted co-conspirator.

Sadly, aside from the 14th amendment's bar of insurgents, the US constitution is silent on criminality of federal officeholders, impeachment being the sole remedy for rotten presidents. Twice, candidates have stood for president while in prison.

Meanwhile, it's all hands on deck in the House of Reps, as Republicans endeavour to save Trump's skin and spoil Biden's presidency. Sharing responsibility for this are five Republican house groups, which artlessly compare themselves to the five Mafia families that once shared-out organised crime in New York City. 

≈   ≈   ≈

In the kakistocratic Republican red states, ever more extreme gun legislation is proposed. Oxymoronically called "gun rights", the laws are designed to promote and spread gun ownership/use, no matter the mass shootings. Their lodestar is the supreme court's appalling 2022 Bruen decision (see below). 

Where elections are concerned, no Bill is too wild for consideration. 

In the Texas legislature, proposed legislation would give the election supervisor (a  Republican) the authority to overturn election results in Harris County, the state's most populous county (circa five million) and the third most populous county in America. 

Time is short: millions of Houstonians are voting Democrat.

Red state courts are drafted into the cause: judicial corruption reached its logical conclusion in North Carolina, where a newly-elected Republican-dominated supreme court plans to rehear and overturn a decision made only a few months ago by a Democrat-majority court, all in order to reinstate Republican gerrymanders the last court struck down. 

≈   ≈   ≈

Thomas: gun originalism

In the wake of the supreme court's dreadful Dobbs and Bruen decisions, there's a new demand for historians schooled in 18th century sexual practices, and weaponry, respectively. 

The results of Clarence Thomas's gun originalism are everywhere.

In US v Rahimi, a Fifth Circuit panel comprising Trumpistes James C Ho and Cory T Wilson and Reagan appointee Edith Jones put a horrifying gloss on Bruen.

In the initial opinion, written by Wilson, the court ruled threats of imminent domestic violence cannot deprive an offender of his weapon; in a revised opinion, Judge Ho dug the hole even deeper. 

Ho is a case-study in Republican judicial manipulation. He was appointed in 2017 to a seat on the 5th circuit vacant since 2013, when a Carter-appointee took senior status. Republicans blocked filling the seat until Trump could appoint a "movement" lawyer.

When Ho was appointed, the former Texas SG already had a reputation as an extreme right-wing lawyer with the Dallas-based First Liberty Institute, the "Christian conservative" legal group that employed Trump-appointed Texas federal judge Matthew J. Kacsmaryk.

Ho was vigorously opposed in the US Senate, not least for his part in the Torture Memos: he wrote a pro-torture memo for Assistant AG Jay Bybee (now a 9th circuit judge) in 2002 when both were employed by the Justice Department.

Ho's memo Possible Interpretations of Common Article 3 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, falsely claimed the Convention Against Torture (CAT) "distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment".

This was cited by Bybee in his infamous memo, Standards of Conduct for Interrogation under [the US Torture Act].

Bybee's still-shocking memo (mostly by John Yoo) concluded that, notwithstanding US obligations under the CAT, the Torture Act reached only the most "extreme" and "heinous" acts, those causing pain "akin to that which accompanies physical injury such as death or organ failure".

This advice led directly to CIA torture overseas, while the US also failed to fulfil its CAT obligations at Guantánamo, according to a newly-published review of detainee treatment by the UN Rapporteur. 

≈   ≈   ≈

Recently, the US urged the International Criminal Court to hold Russians to account for war crimes and torture in Ukraine, though the US routinely obstructs the ICC when Americans or Israelis are involved. 

It seems only yesterday that congress passed the belligerent "Hague Invasion Act", and Donald Rumsfeld threatened "consequences" for NATO headquarters in Belgium unless its government shut down war crime and torture claims against American officials, including himself.

From Roger Fitch and our friends down under at Justinian.

 

The morning after

ROGER FITCH ESQ • TUESDAY, FEBRUARY 28, 2023

The trickle down judiciary ... Novel legal theories the order of the day ... No precedents required ... Trump's debauchery of the courts is coming home to roost ... Forum shopping for "Trump judges" ... Gilead fermenting ... High noon for the Murdochs ... DeSantis' torture taint ... Roger Fitch's Letter from Washington 

Washington is pretty quiet. The supreme court has not announced any major mischief, and the Republican majority in the house have barely started their strategy of wild goose chases and investigating Democrats. 

Democrats usually lose the house due to gerrymanders that give Republicans control with a minority of the voters, but this year, Republicans actually won: by 6,675 votes.

At the moment, congressional Republicans are more interested in spoiling the January 6 investigation conducted by the previous house, and Speaker McCarthy set that in motion by handing over the January 6 committee's video surveillance footage to Tucker Carlson, who may be forced to share it.

The Fox choice aside, Democrats expressed concern that revealing security arrangements in the Capitol endangered all members of congress and their staff.

The selection of Fox is understandable: Rupert Murdoch's American venture has attained quasi-official standing as a party propagandist, a position his media outlets failed to achieve in Australia or Britain. 

In the US, Fox is openly acknowledged by Republicans as the party's representative and spokesman, a status firmly established during Trump's "Fox White House".

Fox has a long history of Republican alliance. In 2000, the network arranged for John Ellis, a "freelance political adviser" to head their elections night "decision desk", and it was Ellis who (prematurely) called the election for his first-cousin George W. Bush; Fox was the first network to "call" the election, a curious American practice.

In 2020, however, calling Arizona and the election for the Democrat Biden proved disastrous; millions of outraged Trumpenvolk took their custom elsewhere, mainly to the execrable Newsmax.

Carlson and Trump: a big laugh

Out of desperation, the Murdoch talking heads took up the cry of a "stolen election", knowing it was untrue, and attacked by name the election equipment company Dominion Voting Systems.

Fox's duplicity has now been revealed during discovery for the resulting $1.6 billion libel suit by Dominion, and Schadenfreude abounds. 

≈   ≈   ≈ 

Americans are still debating the 10 worst supreme court moments of 2022, and watching for signals of this term's impending decisions, some possibly partisan.

The number-one worry for democracy, as well as Democrats, has been the now-argued Moore v Harper, pushing the alarming independent state legislature doctrine. It's a new theory, although the late CJ William Rehnquist posited its existence in the notorious Bush v Gore of 2000.

It may be what Jack Balkin calls an off-the-wall idea, but it's a theory with legs, thanks to a $90 million infusion of "dark money", i.e, secret and unregulated. 

A foul odour still lingers from the last supreme court term. It's the diabolical second amendment test enunciated by Clarence Thomas in the appalling Bruen case. Following the bizarre logic of Thomas, the hyper-reactionary 5th circuit knocked out gun restrictions against men under domestic violence orders, on the basis that there were no such orders against men in the 18th century. More here. 

Thomas: holding firm to the 18th century (pic. Reuters) 

One of the reasons the current high court is so attached to the 18th century social setting appears to be the enhanced role that men had at that time. Staying in the past allows the court to conveniently ignore the current society in which they would rather not be living.

The court risks becoming a Taney court, i.e, like that of Roger Taney, the disgraced pre-Civil War chief justice of Dred Scott notoriety. 

≈   ≈   ≈

America's imperial supreme court is being assisted by obeisant courts below. Donald Trump did untold damage to the lower courts, and in a trickle-down effect, lower federal courts staffed by Republican-appointees (mainly Trump's) are pushing novel legal theories that are presently without precedent, anticipating or inducing the support of the far right cabal that now controls the nation's highest court.

In this supreme court, Trump's executive orders received nothing but deference, under what seems partisan rules; Biden's orders, by contrast, have been overturned, and Trumped lower courts are leading the way.

Any uncongenial decisions of courts of appeal are disposed of through the supreme court's shadow docket: orders giving no reasons and leaving fewer precedents for decisions by moderate lower courts.  

The best district courts for Republican-aligned bomb-throwers to upset established law are in Texas. The Justice Department has in fact had to crack down on aggrieved "conservatives" forum-shopping rightwing Trump judges in the state, more here. 

It's too late for one case, where a cherry-picked Trump appointee has actually been asked to declare an FDA approval invalid. Trump judges have already interfered in other federal responsibilities, e.g, immigration law, so why not in federally-regulated morning-after pills and contraception?

The judge, Matthew Kacsmaryk, sits in Amarillo in the Texas Panhandle; he previously worked for the "First Liberty Institute", which frequently litigates "religious liberty" cases before the Supreme Court. 

As law prof Steve Vladeck notes, Donald Trump succeeded in appointing such judges to single-member districts: any new suit filed in Amarillo is sure to go to Judge Kacsmaryk, any suit filed in Wichita Falls goes to Reed O'Connor, and any suit filed in Victoria goes to Drew Tipton, the border control expert. 

Judge O'Connor, you may recall, attempted (unsuccessfully) to kill off the entire suite of Obamacare legislation, and more recently, he declared invalid key parts of the Indian Child Welfare Act. 

That appeal, already heard by the supreme court, could result in a successful attack on native American rights (more here on the ICWA).

Haaland v Brackeen, begun by Anglo parents seeking an Indian child adoption, has been shamefully joined by the states of Texas, Louisiana and Indiana. It's another opportunity for partisan Republican state attorneys general to tell the supreme court's conservative majority what they want to hear. 

Lithwick: honour of the justices remains in question

What will the extremist supreme court's next agenda be? Dahlia Lithwick is concerned about Dobbs and its implications, while Linda Greenhouse worries about the push for religious supremacy. 

For Marcia Coyle, the most frightening trajectory is that of last term's Bruen, launching a gun culture beyond the control of any government.

≈   ≈   ≈

Little seems to happen at America's longest-running injustice, Guantánamo. Lately, however, there have been developments: two prisoners, brothers, have been repatriated to Pakistan; 32 prisoners remain.  

The Rabbani brothers were held for 20 years, although Ahmed's initial detention was one of mistaken identity. They were never charged, and left Gitmo with nothing.

Another recently-released Pakistani, Majid Khan, was charged and pleaded guilty. Khan's horrific CIA torture was publicly aired at his sentencing and resulted in an earlier release. 

He's just been resettled in Belize, with a furnished house, car, laptop and phone, surely the first time the US ever provided reparations for torture. 

Meanwhile, there are credible Arab accusations of torture participation by a young JAG lawyer stationed at Gitmo in 2006. He's been identified by detainees as Lieutenant DeSantis. 

From Roger Fitch and our friends down under at Justinian. february 2023

 

A better coup next time

ROGER FITCH ESQ • TUESDAY, JANUARY 31, 2023

Roger Fitch on the Republican screwballs and anarchists in the House ... Protecting the insurrectionists and the Trumpenvolk ... Democracy attacked by extensive litigation ... January 6 report ... Unlawful interference by lawyers

 The Constitution, Article I, says "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office".

However, in his seminal "Constitution and What It Means Today (1973), Professor Edward Corwin opined that nothing in Article II (executive power) prevents a president forming a cabinet from the chairs of the principal committees of the house of representatives. 

A cabinet post as such is not a "civil office under the authority of the United States", so a cabinet member does not "hold any office under the United States". 

This sensible idea for introducing responsible cabinet government has not been tried, however: it would depend on the president having a majority in the House of Representatives, and this year it was only narrowly won by Republicans, who, with gerrymanders, don't need a majority of voters.

With a small majority, 21 party holdouts, and no Democrat support, the Republicans struggled to elect a Speaker. California representative Kevin McCarthy was finally elected on the 15th ballot, but at what cost?

A lot. A gang of quasi-anarchists got the concessions they sought for their support, and now McCarthy is saddled with "deranged disruptors", and House Rules under which his position can be spilled with one vote. 

Salon observed, with only slight exaggeration, "These are not serious people dedicated to good-faith oversight. They're a nihilistic carnival act run by folks who are desperate for attention. We're in for a gruesome train wreck of a congressional session." 

Perhaps that's why a congress-based cabinet would be a particularly bad idea this year; not only is the president from a different party, but there's a Republican chaos caucus in charge. The people chairing the principal committees will be predators, foxes in the henhouses of Biden government business.

The foxes have cunning kits: Ryan Zinke of Montana is joining the powerful Appropriations Committee. Zinke is returning to congress after a stint as Trump's spectacularly-corrupt secretary at the Interior Department, where he gained a considerable amount of experience in personal appropriation of government property. More here, and on House Rules, here.

Zinke: theft of government property

The Republicans have new subcommittees, e.g, the laugh-out-loud-titled "Select Subcommittee on the Weaponization of the Federal Government".  

It will "launch a wide-ranging investigation into federal law enforcement and national security agencies ... to scrutinize what they said was a concerted effort by the government to silence and punish conservatives at all levels, from protesters at school board meetings to former President Donald J Trump",  as the deferential Times politely reported. 

Just Security and the Bulwark were less respectful. 

The Democrats call the panel the "Tinfoil Hat Committee" and "Committee on Insurrection Protection", but they nevertheless agreed to serve on it. Some, however, will be blackballed in retaliation for the Democrats' rejection of Jim Jordan (now "Weaponization" chairman) as a member of the January 6 Committee.

Representative Jordan, a former wrestling champion and (presently unqualified) lawyer, will also head the powerful Judiciary Committee. 

≈   ≈   ≈

The 80th Congress (1947-1949), one of the few congresses controlled by Republicans before 1994, was famously characterised by President Harry Truman as the "Do-nothing Congress", but that won't be said of the Republican House in the 118th, which plans to do many things: investigate (more here), interfere in the January 6 investigations, and appease the Trumpenvolk with arcane legislation destined for defeat in the Democrat-controlled senate.

As soon as the Republican majority had been sworn in and established their committees, they got right down to business, with their very first piece of futile legislation: stripping the Internal Revenue of the greatly-increased IRS funding introduced by Biden; the increased tax-enforcement resources could gravely harm the party's chief constituency, the rich. 

Santos: Office of Congressional Ethics defanged

The house majority then moved on to "defanging" its Office of Congressional Ethics, to forestall sundry investigations of Republican rogues, e.g, George Santos, more here. These urgent measures were followed by more doomed legislation, fresh meat for Trump supporters such as criminalising participation of doctors in pregnancy terminations. 

≈   ≈   ≈

"[E]ven though January 6 failed, it's become a rallying point for fascists here and abroad. They're treating it like the Alamo, a lost battle that created supposed martyrs that inspire those still fighting to believe they will eventually win ... To the MAGA movement, the insurrectionists are heroes, and they won't hear a word to the contrary" - Salon

Republicans seem to regard the January 6 coup attempt as a dress rehearsal for another (successful) Putsch, and their pseudo-legal sedition continues, e.g, in US courts. A Democracy Docket report details an extensive attack on democracy through extensive litigation brought by Republican election deniers and vote suppressors. Thus far, the courts have protected democracy.

The full report of the January 6 Committee has now been released, although both the New Yorker and Washington Post  identified significant omissions, e.g, the role of social media.

The report's executive summary stated a devastating case against Donald Trump, in 17 specific findings, referring four criminal charges against Trump to the Attorney General. Also referred: Trump's lawyer, the troubled John Eastman.

No other dodgy lawyers were referred, but many lawyers' testimony was revealed, both as subjects and witnesses; the executive summary also alluded to unlawful interference in the committee's activities by legal counsel for some witnesses. 

Some lawyers are already being investigated by DoJ: in a DC proceeding, a federal court unsealed documents that incriminate several lawyers, including drafts of an autobiography the DoJ quisling Jeffrey Clark is writing, more here. 

Election stealer Jeffrey Clark: Trump's man at the DoJ 

The "Meadows texts" of Trump's chief of staff Mark Meadows (also a lawyer) are already available and read like true-crime reports.

Just Security's January 6 Clearinghouse has the committee's transcripts, and the links to government documents are being protected and mirrored on a repository that should guard against the expected removal of the content by the new Republican congress. 

Perhaps the January 6 investigations will lead to tangible reforms in the law, as happened after the (forced) departure of the last comprehensively-crooked president, Richard Nixon. One reform already in place: the Electoral Count Reform and Presidential Transition Improvement Act, passed in the closing days of the last congress.

Sadly, without personal consequences, the January 6 report means nothing to Republican conspirators; it's just a road map for a better coup next time.

≈   ≈   ≈

Although it's not among offences referred to the attorney general, the January 6 committee report contains plentiful testimony implicating Donald Trump in the fake electors scheme that Special Prosecutor Jack Smith is investigating, along with Trump's theft of cool (classified) keepsakes. A former war crimes prosecutor, Smith has experience indicting presidents, though no American ones. 

Prosecutions of individual Capitol insurrectionists meanwhile continue, and it's clear that seditious conspiracy charges were warranted for some of them. 

 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Trump's tipping point

ROGER FITCH ESQ • TUESDAY, DECEMBER 13, 2022

The stolen documents saga ... The attempted coup ... Legal problems piling up for Trump ... 70 million people in America still believe the dangerous fantasies of a disturbed mountebank ... Criminal servitude beckons ... Roger Fitch reports from Washington 

"No other president has refused to concede that he lost an election, attempted a coup and incited an insurrection and then stolen hundreds of government secrets on his way out the door. He always says there's never been anyone like him, and it's true." - Salon

"Would he really give, say, Kim Jong-Un the names of undercover intelligence agents operating in South or North Korea, thus guaranteeing their assassination? If it meant fending off an indictment, he would ... they're sitting around at Main Justice asking themselves how many assets' lives they might be risking by indicting Trump." - New Republic 

In September, it seemed a tipping point had been reached in the legal pursuit of Donald Trump, with the filing of the NY Attorney General's "monumental" civil enforcement action against Trump, his family, and his corporate organisations. 

His accountants Mazars and banker Deutsche Bank have both parted company with their deadbeat client and provided evidence against him; Paris-based Mazars is probably used to official requests for the accounts of crooked politicians.

The man has so many stolen documents that Just Security set up a "Mar-a-Lago Clearinghouse" one can consult.

Even so, just after the elections, Donald Trump announced with astounding chutzpah that he's standing for president again. As Karl Marx observed, historical facts and figures appear twice, first as tragedy and then as farce. 

Trump proclaimed his candidacy in the glitzy ballroom of his Florida home, an estate as tasteless and garish as the man himself. Ivanka and Don Junior were missing, but the disgraced ex-president was bucked-up by the puzzling presence of the Western Australian mining billionaire Gina Rinehart.

If he succeeds, it will be only the second time an ex-president has managed a second term.

So far, it's all been downhill. 

One investigation in particular - the January 6 insurrection - seems to be moving forward at the Justice Department. Will there be indictments? It seems likely, and for the document heist there's even a model prosecution memo to peruse here. 

In addition, the January 6 committee is winding up its investigation and on December 21 will release its final report in which a number of people will be referred to DoJ for criminal prosecution. 

Many wonder why US AG Merrick Garland hasn't already indicted the principal offender, Donald John Trump. One explanation may have been the AG's wish to avoid filing charges so close to a congressional election. 

In response to Trump's 2024 announcement, AG Garland has appointed a special counsel. Jack Smith, presently Chief Prosecutor of Kosovo war crimes at The Hague, is a man who should be able to find where Trump has buried the bodies, or documents.  

The ex-president is still in legal peril for the latter, although DOJ is said to believe he stole government documents to gratify his unbounded ego - a mere narcissistic hoarder - rather than for the more plausible purposes of blackmail, treason or cash.

After pausing to assemble staff, Smith has already begun sending out subpoenas. 

After Trump's 2024 candidacy was announced, his situation became more precarious: 

•  An 11th circuit appeals panel (two of the judges Trump-appointed) unanimously shut down the special master that a Trump-sympathetic federal judge in Florida had ordered, a manoeuvre designed to interfere in the FBI's review of government documents the former president had unlawfully retained. 

•  In DC, the government's theory of a seditious conspiracy on January 6 was vindicated in a guilty verdict against the Oath Keepers, with implications, perhaps, for Trump himself. 

•  In Manhattan, the Trump corporate organisations were convicted on all counts of tax fraud, while Trump personally faces far worse in other NY litigation. 

•  More classified documents have been found in a Florida storage unit used by Trump. 

•  DOJ has filed a contempt motion (so far unsuccessful) in Washington, seeking penalties for non-compliance with the grand jury's May document subpoena, with implications for indictment and venue.

≈   ≈   ≈

If a criminal indictment against Trump is inevitable, where would venue lie? 

For the taking and retention of classified and other documents, it could be Florida, his adopted domicile after fleeing his New York legal problems.

Florida would be a logical choice, as it's the state where he freely admits he took government documents that he claims to "own", not just (marketable) classified documents, but also White House pardon records that might implicate laws about bribery, corruption and/or obstruction of justice. 

Judging from a similar DOJ prosecution for retained classified documents, now under way, it will be argued that any evidence Trump may offer as to his intent in retaining classified documents (whatever it may have been) should be excluded as irrelevant. 

The ongoing case is one where the defendant, like Trump, claims classification was under his control.

After earlier revelations that confirmed no man is a hero to his valet, the stolen document saga continues, with the discovery of the additional documents. 

Incredibly, loyalist Republican AGs in 10 states filed an amicus brief in the 11th circuit appeal lost by Trump, alleging bias in the Biden administration's search of Mar-a-Lago. 

How successful would the documents charges be in a Florida venue? The state has a generous supply of  easily-led MAGA supporters (many elderly) who as jurors might prove unable to exercise independent thought where their Great Leader is concerned. 

After the Republican triumph in the state last month, Florida jurors sound even shakier.

Georgia is also a possible venue. Indeed, Special Prosecutor Smith is spoiled for choice. The document case, best brought in Washington, is meanwhile getting stronger daily, as Trump's speeches provide fresh personal scienter.  

In any case, there's a smorgasbord of transgressions to choose from: at least 56 crimes could be credibly charged against the lawless ex-president (handy litigation tracker here), not counting fresh offences like this shake-down of investors in Trump's Truth Social Twitter alternative.

There remains Trump's possible disqualification from office (for insurrection) under the 14th amendment but, short of that, there are many ways a career recidivist might weasel out of the law's criminal net.

If Trump gets on the ballot, even under criminal charge, he might win. In theory, he could be elected while under indictment and serve as president behind bars, as the constitutional requirements for the presidency are quite limited and never mention criminal servitude.

As American Prospect commented: 

"How in the world did we become a country where 70 million-plus people ever thought that this dangerously evil lunatic should be trusted with the most powerful job in the world, and apparently still do?" 

Salon added: 

"He is a damaged, destructive narcissist, beyond all help. But the really disturbing question now is why so many people are eager to believe his dangerous fantasies."