#414 Musings Beyond the Bunker (Wednesday July 27)
Good morning,
A couple of weeks ago I proposed that, upon completion of the public testimony before the January 6 Committee, the Justice Department proceed with a two-pronged strategy:
1. Go after all the White House players, enablers, conspirators, and those who incited violence and/or worked to overturn valid election results.
2. Declare openly that Trump committed criminal acts but that the Attorney General has determined that (a) prosecutorial discretion warrants that all attentions be brought to bear of successful prosecutions of everyone around the president and that obtaining a conviction against Trump would be difficult, and (b) the damage of a trial of a former president outweighs the possible benefits of a conviction and the questionable success of a prosecution.
A FREE PASS?
This brought a lot of responses. Bob Held asks whether not prosecuting Trump allows him a free pass to run again. Yes, it does, but I believe the tide of support is turning against him. Georgia prosecutors seem locked and loaded and on top of their game. Others may follow. But I think that a prosecution at the federal level will allow this narcissist to claim the martyr status he so relishes and allow him to run on that basis. Remember that the second impeachment trial resulted in his amassing hundreds of millions of dollars being sent by loyal supporters. Best to let the States of New York and Georgia proceed, while the federal authorities go after the enablers and advisors in the Trump circle. Prosecuting those in his administration who gave fuel to his unfounded claims and didn’t resist his most egregious actions will inform future generations of advisors to future would-be autocrats. We need to let these future generations of advisors know that their actions bear consequence.
JUSTICE IS WARRANTED
Duke Hagenburger agrees with the general premises of my analysis but still desires greater justice. He believes that Trump must be made to pay for his crimes, beyond the public pronouncements and humiliation he would endure under my plan. Duke thinks that starting a prosecution may lead to an acceptable plea deal. Perhaps, but I think Mr. Trump is a wily fellow that will not accept a plea. He instead would view such negotiations as part of his martyr narrative. Duke does share the view that the State court actions may well keep him preoccupied and may effectively “neuter” him from running again.
TO PROSECUTE OR NOT
David Lash agrees that ultimately there will be a political decision not to prosecute Trump, which he thinks is fine, given that a prosecution “could go south.” He does not share my view that any sort of public announcement, pardon, or humiliation will accomplish anything. In David’s words, “One-third of the population supports the guy. The odds are that one-third of jurors will feel that way. He will turn that into a nightmare and will be wholly unleashed. You can try to humiliate him all you want, but it won’t work. He’s a narcissist, he won’t get it or he won’t accept it. He tells the world he was exonerated and one-third of the world believes him, see Muller Report (which was a humiliation that he simply ignored, which he will do again). You can yell all you want about how his criminality was clear, but he won’t be bowed. He will still paint himself as a martyr and a hero. I agree the Dems need to run on more than Trump is a criminal, whether he’s convicted or not. They need a platform. They need to bring legislation to the floor and run on their attempts to do the right thing, even though nothing will get passed. And they need to get rid of the filibuster, even if it is just to protect voting rights. The voting rights issues, and the ‘independent legislature’ idiocy, could undermine our democracy.”
Agreed on all counts.
FOURTEENTH AMENDMENT AND DISQUALIFICATION
Meanwhile, Bradley Tabach-Bank suggests that Trump and his compatriots can be denied holding office in the future through operation of the Section 3 of the 14th Amendment, which states in pertinent part: “No person shall be a Senator or Representative in Congress…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…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…”
While I think this is a brilliant argument and that the case appears fairly straightforward, especially the rejoinder that includes giving “aid and comfort…”, I think it is a stretch to think this could effectively be pursued. It unclear enough that it will take up endless inches of newsprint and wall-to-wall coverage of the ambiguity and seeming unfairness, not to mention multiple lawsuits, as to be unworkable. That said, the case can be made, as was done in this thoughtful article from January 2021: https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6
GAMING THE SYSTEM
Here’s a curious alternative from Bradley Tabach-Bank: “My perhaps naive idea is that Garland should indict Trump for insurrection. After the case goes to the jury, Biden should, in the interest of the Country, and following the precedent set by President Ford, offer Trump a presidential pardon, with the proviso that it will be withdrawn once the jury returns a verdict. Trump is then immediately faced with the choice of either refusing the pardon and taking a chance on going to prison for many years, or accepting the pardon, thereby admitting his guilt and suffering the commensurate constitutional prohibition from ever holding office. My guess is he will take the deal.”
MEANWHILE, THE LAST WORD
The last word goes to the co-author of The Los Angeles Times article I cited on on the case for prosecuting Trump, Dennis Aftergut:
“Thank you for quoting Larry Tribe's and my LAT piece. Nothing but respect for your different perspective; you may well be right politically, and that may be more important than our different perspective.
What stops me from agreeing is my belief in the first principle of the rule of law -- that no one is above it. Including those who may demonize the prosecutors as political, and do it effectively. That demonization is, as you say, really dangerous and might persuade many Americans, to the country's detriment. Have to believe, however, that a conviction would carry more weight with the majority. And because the venue would be DC, HIGHLY confident that a conviction would result.
In case of interest, a similar piece to the LAT op ed in The Atlantic yesterday with Stuart Gerson and Don Ayer, two former high Republican DOJ officials, one once an Acting AG, the other a DAG.”
This guy’s smart, as are Tribe, Gerson and Ayer. Maybe they’re right. Certainly they are right on the law. But, right as they may be, I’m still sticking with the politics being the reason to concentrate on his enablers rather than Trump—for now.
DAD JOKES
There is a great series of these jokes, two guys on lounge chairs outdoors, drinking coffee and riffing. Here are some favorites:
1. Did you hear about the guy who evaporated? He’ll be mist.
2. I want to know what “IDK” means, but everyone keeps telling me “I don’t know.”
3. How does NASA organize a party? They planet.
4. Why are toilets so good at pokier? Because they always get a flush.
Have a great day,
Glenn
From the archives: