Stick to Prosecuting Trump for Real Crimes

 

I get that this is not a fashionable view on my side if the aisle, but I really thing the Manhattan District Attorney should refrain from prosecuting Trump over the Stormy Daniels payments and let others prosecute him for real crimes.

And yes, I understand that Trump supporters will call prosecution for real crimes politically motivated and threaten to riot over them, too.  That is not an excuse for making a genuinely politically motivated prosecution on dubious charges.  Sticking to real crimes will not mollify Trump supporters, but it will make their complaints look less legitimate to the general public, and, in any event, it is the right thing to do.

And no, prosecuting Trump for the Stormy Daniels payments is not in any way like prosecuting Al Capone for tax evasion.  Prosecuting Paul Manafort for tax evasion was like prosecuting Al Capone for tax evasion.  Both men were good enough at covering their tracks, and in Capone's case, intimidating witnesses, that tax evasion was about all the government could prove.  Donald Trump is terrible at covering his tracks and has a whole parade of witnesses to testify against him.  Tax evasion is an extremely easy crime to prove and did not require any stretching of existing law.  The Manhattan DA appears to be stretching the law almost to the breaking point to bring charges.  There are plenty of much more serious offenses that do not require any difficult legal gymnastics to establish.

Nor is this about establishing that Trump is not above the law.  The serious prosecutions, in DC and Georgia, are about whether Trump is above the law. This case is more like the case of the Hillary Clinton e-mail server -- an attempt to place Trump below the law. There are innumerable technical crimes that people break every day, most of which appropriately go unprosecuted.  Trump supporters warn Democrats that two can play at that game.  I think it safe to say that most of us on our side of the aisle roll our eyes at that threat.  Republicans have been playing that game for thirty years!

Consider the Clinton presidency.  Republicans in Congress did everything from shoot a pumpkin in an effort to prove that Vince Foster was murdered to investigate the use of government personnel to answer letters to the White House cat.  And, of course, ultimately impeached Clinton over an affair with the White House intern.  I was much impressed at the time with Alan Dershowitz' book Sexual McCarthyism, which addressed what is properly an impeachable offense. Impeachable offenses, Dershowitz said, should be limited to abuse of public office, or very serious private crimes, like murder.  

Dershowitz goes on to say that a sexual impropriety should not be treated as an impeachable offense, and any claim that the real issue was not the sexual impropriety, but some technical crime to cover it up should be treated as disingenuous.  I believed that then and believe it now, whether the technical crime was Bill Clinton committing perjury in a civil deposition,* or Donald Trump paying hush money to a porn star. Ken Starr ultimately send Monica Lewinsky's dress to a crime lab and ordered a blood sample from Bill Clinton to prove that he lied under oath about the affair.  This sort of thing is normally saved for serious crimes -- real crimes -- like rape.  And now  one hears people demanding that Trump submit to a physical examination to see if there was an affair. No then, no now.

Dershowitz then goes on to say that a financial impropriety should also not be grounds for impeachment.  I am a little hesitant there.  How serious a financial impropriety is he talking about?  Clearly a candidate living beyond his means, being late on bills, even having bounced checks and bills turned over to collections can be dismissed as a private vice, rather like a consensual affair, and not a matter of public concern.  At some point mere financial mismanagement starts to look more like an attempt to defraud creditors, and at some point does become the stuff of criminal investigation.  At that point it becomes a legitimate public concern.  I confess to not having any clear sense at what point fraud becomes a serious public concern, much less grounds for impeachment or indictment.  And that would include the question of whether Trump's myriad financial improprieties cross over that line.

And then there is the matter of Hillary Clinton's e-mail server, another case of a technical crime that was ultimately not prosecuted.  Recall that this grew out of Republicans' investigation of the Benghazi attack in hopes of finding some misconduct to attack Hillary's political career.  They did not find such misconduct, but did discovery that Hillary had sent State Department e-mails on a private server, and suddenly the matter became the most heinous offense in the history of our Republic.  Donald Trump led crowds in chants of "lock her up."  The server somehow became the number one issue of the entire election. The FBI investigated the episode and declined to bring charges because, in fact, mishandling of classified information is a common occurrence.  Though it may be a technical crime, the investigating team found that actual prosecutions for mishandling of classified documents invariably included some aggravating factor such as intent, large enough volume that intent can be inferred, obstruction of the investigation, or disloyalty to the United States.  

One of the reasons the e-mail server had legs was the sense that lower-ranking officials were routinely punished for the sort of thing that Hillary did, while bigwigs get off. That is both true and not true.  Anyone calling for prosecution of Bill Clinton for lying in a civil deposition or Hillary Clinton for sending State Department e-mails on a private server or Trump for concealing hush money to a mistress ignore the fact that the choice is not necessarily one between criminal prosecution and going unpunished.  

Many things that are technical crimes are handled through civil or administrative penalties.  The Justice Department, investigating Hillary Clinton's server, found that, in fact, lower ranking employees were not prosecuted for the sort of mishandling of classified information that Hillary had done.  But lower ranking employees did not escape punishment in such cases.  Rather, they received administrative penalties such as reprimand, writeup, demotion, loss of security clearance and, in extreme cases firing.  The real injustice is that administrative penalties of this sort are not available against political appointees, so there really is no intermediate step between prosecution and no penalty.

Something similar applies to lying in a civil deposition and concealing evidence in a civil lawsuit.  Technically, these may be crimes, but as a practical matter, they are almost never prosecuted as such.  But this is not the same as saying that such actions go unpunished.  They are subject to a wide range of civil penalties, up to and including dismissal against a plaintiff or default against a defendant.**  A wide range of campaign finance violations are also handled as civil matters, as are many cases of fraud and other white collar crimes.  The New York Attorney General treated the Trump Organization's frauds as a civil matter.  The Manhattan DA could likewise have sought civil penalties if he truly thought the Stormy Daniels payoffs were worth pursuing.

Admittedly, there is the example of John Edwards, in the 2008 election, which is remarkably similar.  Edwards had an affair with a campaign staffer while his wife was dying of cancer and had a child by her.  Some of his wealthy friends paid roughly a million dollars to hush up the affair.  These were prosecuted as undeclared campaign contributions, which was widely seen as a stretch. The jury declined to convict, but Edwards saw his political career ruined and fell into ignominy and disgrace.  

So prosecuting Trump for a similar offense is not wholly unprecedented, but it is still a serious stretch and impossible to read any way other than as a politically motivated vendetta. If done before Trump is indicted for real crimes, this will undermine the credibility of much more serious charges.  If done after, it just looks like piling on. Let it go and stick to real crimes, like trying to overturn an election.

This is well put.

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*Bill Clinton went on to lie to a grand jury about the affair, a much more serious crime, but still ultimately in an attempt to conceal an affair that should never have been the subject of grand jury proceedings.  

**Something like that happened in Bill Clinton's case. The original lie took place during a deposition in a civil lawsuit for sexual harassment by Paula Jones.  The judge dismissed the suit as not meeting the legal standard of sexual harassment, but Clinton ended up paying damages -- something that presumably would not have happened in the absence of his lies.

A Personal Note

 Well, well, well.

I now have the dubious distinction of having had one of my blogposts flagged for content after sitting peacefully for eight years.*  I didn't even know Blogspot had community standards!

Nor do I know how the post cam to Blogspot's attention after eight years.  Looking through viewing history, no one seems to have looked at the post recently, except for me to see what that fuss was about.  Does Blogspot have a search engine that finally came across the post after eight years?

I am not sure whether the post was flagged for violence or sex.  Given that it was a review of a Masters of Rome novel, it could be either.

And I must admit, knowing that Big Brother is apparently watching me makes me want to test the limits and see what Blogspot does and does not let you get away with.

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*To be clear, the post was not taken down.  It just has a warning that you have to pass to see it.

Further Thoughts on the Deep State and Rule of Law

I believe it is true that when Trump and the MAGAverse say "Deep State" they are generally referring to the rule of law, and that they see our national security bureaucracy as oppressive mostly because it seeks to hold them to the rule of law.  Another quote (broadly popular on the left) throws further light on the subject:: 

Certainly one can call this quote overly cynical. I believe that the opposite ideal, 

is one that probably everyone would agree to in theory, no matter how poorly we may do at living up to it.  

But I do think that seeing the law as something that protects one's in-group and binds out-groups, though never expressly articulated, is a good working definition of authoritarianism.  And there is no doubt that the deep state is an inherently authoritarian institution in the sense that it is based on a top-down command structure and innately coercive and, as such, inherently dangerous.

But at the same time, calls to defund the deep state are rather like calls to defund the police -- an invitation to chaos and disastrous in the real world.  Eliminating our military footprint overseas will not eliminate war, simply replace our military footprint with someone else's.  Eliminating intelligence gathering will simply blind ourselves while others retain their sight.  Unilateral disarmament is not peace, but merely preemptive surrender.

In short, our goal should not be to end the deep state, but to tame it.  But how?  There are three options:

1. Shrink the deep state
2. Subordinate the deep state to the rule of law
3. Subordinate the deep state to elective officials

These things are not mutually exclusive, but there can be tension among them, and a need to set priorities.

Glenn Greenwald and others like him seem to think that subordinating the deep state to the rule of law is a futile project, and we should focus on shrinking it.  Hence their alliance with Trump, because he appears to want to shrink the deep state since he cannot control it.

Is this a good priority?  And I suppose the only answer I can give is that is above my pay grade. I am certainly open to the idea that our deep state is too big and needs to be shrunken.  And certainly I am open to the idea that any time the deep state's capacity increases, it will find ways to use it, even expanding its surveillance and spreading into areas where it does not belong.  So there is much to be said for shrinking the deep state to the minimum necessary.

But would place priority in subordinating the deep state to the rule of law. This means that I do not see subordinating the deep state to the rule of law as futile, although I do see it as a difficult and unending project that will always run into more challenges.  

So why would I consider subordinating the deep state to the rule of law as more important that shrinking it?  Isn't it true (as Greenwald would doubtless say) that a smaller national security bureaucracy has less capacity to harm than a large one?  Well first of all, I do not know whether a national security bureaucracy shrunk far enough to cease being dangerous would be large enough to do its necessary job. Hateful as this may be to some on the anti-anti-Trump left, a national security bureaucracy large enough to be dangerous may be a necessary evil.

And second, since we are talking about priorities here, which is worse, a large but law-bound national security bureaucracy, or a small but lawless national security bureaucracy?  Can there be any doubt?  Lawless, coercive organizations can be small and still be dangerous. In my last post I discussed the tradeoff between giving the deep state "independence" and subordinating it to elective officials.  Give government agencies too much "independence" and they go rogue.  Subordinate them too much to elective officials, and they become a private praetorian guard.  The only safe option is to subordinate both elective officials and the unelected bureaucracy to the rule of law. The deep state should be subordinate to elective officials when acting within the discretion they are given by law.  It should remain independent of elective officials to the extent elective officials wish to circumvent the law.

And much the same tradeoff applies to the size of the national security bureaucracy.  Make it too large, and there is a very real risk that if will grow beyond the constraints of the law and go rogue.  But a small deep state is much more likely to become a private praetorian guard and therefore also dangerous.*  And make no mistake, that is exactly what a leader like Trump wants to do.

Giving Glenn Greenwald at al the benefit of the doubt, they appear to see Donald Trump's conflict with the national security bureaucracy as an attempt by the President to reign in a lawless deep state.  In fact, it has always been an attempt by the deep state to reign in a lawless president.

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*Hence the general rule within authoritarian societies, that the small, elite force such as the secret police are more dangerous than larger ones, such as the army.

In Which I Try to Understand Trump's Left Wing Supporters and Why I Think They Are Wrong

To be clear, I am not a follower of Glenn Greenwald.*  I stopped following him some time during the Obama Administration, not so much because I disagreed with him, but because I found him too depressing to bear.  Nonetheless, I agreed with his basic view that Obama had sold out to the national security state (the Deep State, as its enemies now call it), and that to do so was, perhaps, inherent in the office. I found Obama disappointing on civil liberties.  I was broadly open to the view that the national security state had captured the presidency and there was no escape.

So why have I sold out and become a supporter of the Deep State (the national security state) now?

But her e-mails!

Certainly a lot of one-time Greenwald fans, myself included, would respond by flipping the question.  Why have Greenwald and others like him seemingly become such Trump fans? Do they seriously think that Trump is a civil libertarian?  After all, if we have a deep state, then ICE and Customs and Border Patrol are presumably part of it, and Trump has been eager to take the gloves off both agencies.  He pardoned the vile Joe Arpaio, as un-civil libertarian a figure as one can imagine.  Recently released depositions by the January 6 Committee detail Trump's desire to use the military to suppress the 2020 riots and even to recall and court martial retired military officers who criticized him.  These are hardly the acts of a civil libertarian!  Even Trump's credentials as a military non-interventionist are in question.  He tried to economically strangle the governments of Iran and Venezuela (something Greenwald would presumably criticize in any normal president), dropped the Mother of All Bombs (MOAB) on Afghanistan, and came perilously close to starting war with Iran on several occasions.

So why the affinity?  Presumably Greenwald would answer that, although Trump has been bad, he is less bad than any other President, especially GW Bush.  He would presumably also say that the real danger to civil liberties is not in any particular leader, but in the national security state, that Trump sees as an avowed enemy and wants to dismantle.  

And I suppose I should give credit where it is due.  Trump may call for jailing his opponents, but that is just empty talk.  And he really does want to dismantle any national security agencies that have targeted him. Greenwald has reacted with indignation that the national security state has sought to undermine a duly elected President. The indignation is justified when Trump wants to do something that is within is discretion as commander-in-chief, such as withdraw troops from a particular area.  

But Greenwald et al miss two important points here. Point number one is that if you are going to uphold the power of a duly elected official, it is incumbent on the official to respect the results of elections.  If you are going to talk about the duty of national security officials to be subordinate to duly elected officials, then duly elected officials had better recognize that they are subordinate to the voting public and accept election results.  Greenwald appears to dismiss Trump's refusal to accept his loss as a minor matter.  Maybe he ultimately thinks that respecting the authority of duly elected officials is, after all, less important than undermining the power of the deep state.

 But this ignores another important point as well.  Greenwald is quick to point out that Trump is not so bad, from a civil libertarian standard, as GW Bush.  But what made Bush so bad?  It wasn't that he let the Deep State run amuck and ignore the authority of a duly elected President.  Bush's fault -- as expressed through Dick Cheney, David Addington, and John Yoo -- was the exact opposite.  He claimed for a duly elected President unlimited power over the Deep State -- power unbounded by any treaty or statute. 

In other words, what we need to curb the power of the Deep State is not to subordinate it to duly elected officials, even if those duly elected officials recognize themselves as subordinate to We, the People and respect election results.** No, what we need is to acknowledge that the Deep State, duly elected officials, and even We, the People are still all subordinate to a common superior -- the rule of law.  (Hence the quote above). And we need to recognize that elected officials and the deep state can both be threats to the rule of law. And we need to think when the President and the Deep State clash (as they invariably will), that we should stop reflexively siding with one or the other, but side instead with the rule of law.*** 

This is a difficult balance to make. Subordinate the national security state too far to the President and it becomes his private police force. Give the national security state too much independence and it goes rogue.  But in the case of Trump, the answer is not difficult. The reason Trump has not trampled on liberties the way that GW Bush did is that the deep state stopped him.  Read the depositions if you doubt it.  Trump's objection to the Deep State was always first, that his power over it was never as absolute as he wanted and, second, that it investigated him.  In other words, that it upheld the rule of law.

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*Note: I am using Greenwald as a shorthand for the pro-Trump far left that so resembles the pro-Trump far right.
**And that is why people on my side of the aisle find ourselves in a most uncomfortable alliance with Dick and Liz Cheney.  Because Cheney's theory of unbounded executive power always contained the qualification that this power was inherent in a duly elected executive who respected election results.

***And I should also add that I think a lot of Trump's leftwing supporters really want to dismantle the national security state altogether and see Trump as the man for the job.  But I think that, the world being what it is today, the national security state is a necessary evil.  I also think that they are quite wrong in thinking that Trump wants to dismantle the Deep State, as opposed to turning it into his private praetorian guard.

How Much of It Is a Crime: The Separation of Powers

Clearly there is more information on the January 6 insurrection than any normal person could possibly read, much less understand.  I hope to read the final report at some later time.  In the meantime, the obvious question is, assuming (as I think we must) that there is not enough evidence to charge Donald Trump in connection wit the actual violent insurrection, how much of his effort to overturn the election is a crime.

So far as I can tell, the answer lies in the matter we all learned in high school civics -- the separation of powers.  Specifically, the distinction between legislative, judicial, and executive power.  Because these are different.

First of all, acts of the legislature are not, and cannot be, a crime.  This is set forth in the Free Speech and Debate Clause of the U.S. Constitution, "[F[or any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place."  In other words, no speech or vote in Congress can be a crime, including a vote to certify the losing candidate as President.  Certainly, such a vote can be invalidated by the federal courts as unconstitutional.  The courts can also stay unconstitutional legislation pending review.  And any member of Congress voting to overturn the people's choice would have to answer to the voters at home.*  But it cannot be a crime, nor can it be civilly actionable.  

I can only further assume that urging members of Congress to certify the losing candidate as President is merely lobbying and, as such, also not a crime, absent some evidence of bribery of threat.**  And presumably an offer of a campaign contribution or endorsement is not considered a bribe, nor is the threat to back a primary challenger a threat.  Presumably most state constitutions contain similar protections.  I can only assume, therefore, that absent a bribe or threat pressuring state legislatures to overturn the election results might be reversible in the courts, but cannot be a crime.

Most participants seem to have made a similar assumption about court challenges -- that no matter how how outrageous or void of merit, court challenges cannot be a crime.  But other penalties are available.  Lawyers bringing a claim wholly without merit are subject to disciplinary penalties, ranging from being required to pay the other party's attorney's fees*** to disbarment. A suit wholly without merit cannot be a crime, but it may be civilly actionable for malicious prosecution or abuse of process.  And, finally, while lying on the floor of Congress is protected by the Free Speech and Debate Clause, lying under oath in a lawsuit can be prosecuted as perjury.  So suing to overturn an election, though seen by all parties as the first resort, actually carries more legal peril than trying to overturn the results in a federal or state legislature.

The executive branch is a different matter.  Its role is not to make or decide the law, but to carry out (execute) the law.  The executive branch's role in a election is to conduct and count the vote and announce the results. The executive must conduct the vote as the law sets forth and announce the result as the law provides.  Thus, any use of the executive branch to alter or falsify an election result is clearly a crime, at both the federal and state levels.  At a minimum, this is forbidden under 18 USC 595:

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality . . . , in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

That makes it a federal crime for Georgia Secretary of State  Brad Raffensperger to falsify election results and criminal solicitation for Trump to ask him to do so. All states, including Georgia, have similar laws. Trump is currently under criminal investigation in Georgia for this call.

The offense is aggravated by Trump's apparent threat of criminal charges if Raffensperger did not deliver the results Trump wanted. That may rate as extortion under 18 USC 875(d):

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

(Emphasis added).  A telephone call is considered a transmission in interstate commerce. Admittedly this statute would only apply if changing an election result is considered a "thing of value," which I do not know.  Assuming that changing an election outcome is considered a "thing of value," the call would also violate 18 USC 872:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The use of the Department of Justice to overturn the election would also be a crime. Of course, that didn't happen because the Department of Justice resisted.  And, admittedly, the President has wide discretion to explore possible courses of action, including ones that turn out to be legal.  At what point mere discussion becomes criminal solicitation or criminal conspiracy is not always clear.  I will defer to a criminal lawyer on that.

What about the plan for private citizens to submit a slate of fake electors?  There is no specific law against impersonating an elector because no one ever thought of it before. Nonetheless there has been ample speculation about what other laws might be stretched to cover the fake electors.  One of the more plausible candidates I have seen are 18 USC 494, forging a public record:

Whoever falsely makes, alters, forges, or counterfeits any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or

Whoever utters or publishes as true or possesses with intent to utter or publish as true, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited; or

Whoever transmits to, or presents at any office or to any officer of the United States, any such false, forged, altered, or counterfeited writing, knowing the same to be false, forged, altered, or counterfeited—

Shall be fined under this title or imprisoned not more than ten years, or both.

The most obvious defense here would be that the fake electoral certificates look nothing at all like real ones and therefore cannot be considered forgeries.  

Also plausible is 52 USC 20511:

A person, including an election official, who in any election for Federal office—
(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for—

(A) registering to vote, or voting, or attempting to register or vote;

(B)urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or

(C) exercising any right under this chapter; or

(2)  knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—

(A) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held; or

(B)the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held,

shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

(Emphasis added). Of course, this law was not written with fake electoral ballots in mind, but casting them certainly deprives or defrauds the residents of a state of a fair and impartial election.

So, in short:

1. An act of a legislature (federal or state) to override the will of the voters is not and cannot be a crime, although it may be struck down as unconstitutional;
2. A lawsuit to overturn an election is not a crime, but is subject to disciplinary penalties if frivolous, and may be civilly actionable;
3. Any attempt by the federal or state executive to alter election results is a crime;
4. Private citizens submitting fake electoral certificates may be a crime.

All of this suggests that the weakest link in the chain of presidential elections is the legislative process.  Federal or state legislators are immune from criminal penalties for overriding the will of the voters and are are also the most subject to political pressure. This makes the legislature the most urgent area for reforms to make clear that such actions are invalid, even if they cannot be criminalized.  And, indeed, Congress has recently passed such legislation.**** 

We will see how it turns out.

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*Although that would probably not be a problem for most of them.
**Taking bribes has been held not to be protected by the Free Speech and Debate Clause.
***Presumably most of the participants are too rich to care.
****It also sets stricter standards about electoral certificates

January 6 Clearinghouse

 

For anyone who wants a comprehensive link to information on the January 6 insurrection, here it is:

January 6 Clearinghouse

How Many Ways Are There to Plead the Fifth?

 The January 6 Committee has released its first 34 transcripts, consisting mostly of various witnesses taking the Fifth.  By way of reminder, four witnesses -- Steve Bannon, Mark Meadows, Pete Navarro and Dan Scavino refused to testify altogether and were referred to the Department of Justice for prosecution for contempt.  The DOJ decided to prosecute only Bannon and Navarro.  Meadows apparently cooperated enough to avoid contempt proceedings, and Scavino (presumably) was not important enough to go after.

During the hearing, committee members mentioned that over 30 witnesses appeared and took the Fifth, as is their right. The hearings played excerpts from some of the most prominent witnesses to take the Fifth -- John Eastman (the lawyer who suggested having the Vice President choose which electors to qualify), Jeffrey Clark (the DOJ official who wanted to endorse claims that the election was corrupt), Michael Flynn and Roger Stone. It seemed a safe assumption that many of the others who took the fifth were less well known.  The release of transcripts reveals this to be true.

Many people have expressed outrage at the obscure and innocuous questions that some witnesses refused to answer.  (Roger Stone would not give his age or place of residence).  Others offered in the witnesses' defense that the Fifth Amendment is all or nothing -- one must either answer all questions or none.  The transcripts do not bear that out.  Some witnesses were actually quite cooperative and others only invoked the Fifth for specific subjects. Much to my surprise, these included Stewart Rhodes, founder and leader of the Oath Keeper, testifying from jail and later convicted seditious conspiracy.  Enrique (Henry) Tarrio, chairman of the Proud Boys, was also surprisingly cooperative despite excellent reasons not to be.*  Both men gave extensive details on their organizations that other members might see as betrayal.

Other witnesses, by contrast, gave general background information but shut down when the conversation moved to particulars.  Some (including Roger Stone) refused to answer beyond just acknowledging the subpoena they received.  Witnesses Phillip Luelsdorff and Robert Patrick Lewis, rather to the consternation of the committee, refused to even acknowledge the subpoena they received.  (Both men, it should be noted, belonged to the same organization and had the same lawyer, Leslie McAdoo Gordon).  

Also significant -- you could get some idea how important the committee thought a witness was by how many members attended the deposition.  For an an unimportant witness, only one committee member would attend, or sometimes no committee members would attend and staffers would conduct the deposition. More important witnesses rated more committee members.  Jeffrey Clark tipped the scales with all nine members present for his first deposition.  (This is the only deposition of the 34 released that Chairman Bennie Thompson attended).  Six members attended the second deposition.  Clark appears to have been the only DOJ employee willing to use the Department to overturn the election result, which does, indeed, make him important. Five committee members attended the deposition of Roger Stone.  Here again, if there was a link between the corridors of power and the insurrectionists in the street, Roger Stone is the most likely suspect, so he was, indeed, important.  John Eastman scored four committee members, as did Julie Fancelli, a donor and rally organizer who I must admit to not having heard of. Alex Jones scored three committee members, as did Jenna Ellis, Trump's election lawyer.  Michael Flynn rated a mere two.  (Sounds like an insult).

But above all, I must admit to a certain childish fascination with how many different wordings the witnesses found to invoke their Fifth Amendment rights.  I began to be interested in that trivial subject during the hearings after noticing that Eastman said, "Fifth," while Flynn said, "The Fifth," and Roger Stone said, "On the advice of counsel, I will assert my Fifth Amendment right to respectfully decline to answer your question."  The depositions released gave a wealth of other wordings. Usually the witness invoked the Fifth, but sometimes the lawyer objected on behalf of the witness.  Often the witness or the witness's lawyer gave an extended invocation of the Fifth Amendment and either offered an abbreviation or was given an abbreviation by the committee. Media members usually invoked the First Amendment as well as the Fifth.  Leslie Gordon, on behalf of her clients, also claimed a rules violation.

Consider, then, the extraordinary array of wordings witnesses and their lawyers chose to say the same thing.

Kathy Berden, Michigan fake elector, "The Fifth, please."

Alexander Bruzewitz, CEO of X Strategies, LLC, "On the advice of counsel, I invoke the Fifth Amendment."

Patrick Casey Live stream and paid content. His lawyer said on his behalf, "Same objections, First and Fifth Amendments."

Dion Cini, Proud Boy, "I plead the Fifth."

Jeffrey Clark, "Fifth." 

James DeGraffenreid, Nevada Republican Party official.  Extended speech on the Fifth Amendment, followed by, "On the advice of counsel, I assert the prior privilege."

Enrique de La Torre, associate of Roger Stone, "I assert my Fifth Amendment right."

John Eastman, "Fifth." 

Jenna Ellis, "Pursuant to the advice of counsel, I will invoke my constitutionally protected right to assert the Fifth Amendment." 

Kimberly Fletcher, founder and president of Moms for America, "I decline to answer pursuant to the rights afforded me under the First, Fourth, and Fifth Amendments."

Michael Flynn, "The Fifth." 

Nick Fuentes, racist and rally speaker, "Upon the advice of counsel and in reliance upon the Constitution of the United States, I most respectfully refuse to to answer that question on the grounds that it might tend to incriminate me."  (Later just, "Fifth Amendment.:")

Julie Fancelli, donor, protest organizer, "I invoke."  .

Bianca Gracia, founder of Latinos for Trump, "I rely on my Fifth Amendment privilege."

Alex Jones, "On advice of counsel, I'm asserting my Fifth Amendment right to remain silent." 

Charlie Kirk, leader of Turning Point USA, "On the advice of counsel I'm invoking my Fifth Amendment right not to testify and decline to answer that question." (Later, "I'm invoking my Fifth Amendment right.")

Antonio LaMotta, member, Veterans for Trump, "I invoke the Fifth Amendment."

Phillip Luelsdorff and Robert Patrick Lewis, member, First Amendment Praetorians, both represented by Leslie Gordon, "Rules, First, and Fifth."  

Joshua Macias, member, Veteran for Trump, "I invoke the Fifth, sir."

John Matze, founder and CEO of Parler, "Same objection; Fifth Amendment."  (Spoken by his lawyer, Brian Kelly).

Michael McDonald, Chairman of the Nevada Republican Party, "Based on the advice of my attorney, I'll be invoking my Fifth Amendment privilege."

Mayra Rodriguez, fake elector from Michigan, "I take my Fifth Amendment right to remain silent."

Mike Roman, official with the Trump campaign, "The Fifth."

Roger Stone, no stock phrase, but something similar to, "Once again, on the advice of counsel, I will assert my Fifth Amendment right to respectfully decline to answer your question."  Always used full sentences and not just one or two words. 

James Philip Waldron, preparer and presenter of Power Point slide on election fraud, gave one explanation of his invocation of the Fifth and then "Same reply."

Kelli Ward, chair of the Arizona Republican Party, "I rely on my Fifth Amendment privilege." (Like Roger Stone, she would not even give background information).

Garrett Ziegler, aide to Peter Navarro, "I invoke my right to silence," or "I invoke my right to silence under the Fifth Amendment."

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*Tarrio was arrested on unrelated charged slightly before January 6, 2021 and took no part in the insurrection, but he as later charged with conspiracy.