Random Thoughts on the War in Ukraine

 

So, some random thoughts on the war in Ukraine, since it has been a while.

First of all, I do understand people who say it is a mistake to judge the counteroffensive solely in terms of territory taken, that we are spoiled by the accounts from last fall when Ukraine made sweeping gains in a very short time, that Russian defenses are hard to overcome, etc.  But in the long run, the answer has to be so what.  Yes, be patient.  But in the long run, if an offensive does not take territory then it has failed by definition.

In a strange way, some if this is sort of encouraging. The fact that the Russians have put their energies into fortifying defenses instead of capturing any more territory seems to suggest that have given up on taking any more.

Even more encouraging -- nuclear weapons seem to be off the table.  Early in the war, someone said that the Russians were unlikely to go nuclear unless the Ukrainians did something really crazy like bombing Moscow.  Obviously that wasn't going to happen!  Well now it is happening, quite regularly, though on a small scale, and the nuclear threat is nowhere in sight.  

But otherwise, I see nothing very encouraging. The ground war looks like an endless deadlock.  The prospect of Ukrainians pushing Russians out of the entire country seems impossibly remote.  And even if that did happen, there is no reason to think it would be the end of the war.  Russia's ability to keep raining down bombs seems infinite. The only way to stop it would the the sort of massive strategic bombing to destroy Russia's military infrastructure that really would lead to a nuclear response.  Nor does there seem to be any end to Russia's ability to blockade ports and destroy grain supplies.

Finally, by all accounts, many if not most Russians by now agree that the war was a mistake. Many will even agree that it was launched on false pretenses. When Yevgeny Prigozhin launched his bizarre, ill-fated putsch, he prefaced it by saying in no uncertain terms that the war was a mistake and launched on false pretenses.

But again, so what?  There is a huge difference between saying that a war was a mistake, and even that it was launched on false pretenses, and saying that you want to lose.

But her emails! A Stroll Down Memory Lane

 

But her emails!

The most obvious parallels between something a Democratic candidate did and something a once and future Republican candidate is the matter of Hillary Clinton's e-mail server and Trump's classified documents at Mar-a-Lago.  I the interest of equality before the law, Republicans say, why wasn't Trump treated the same way as Hillary.  Democrats and Republicans accused of the same crime should be treated the same in order to avoid a two-tier system of justice.

The obvious response is that each case is unique, that differences are not limited to the party affiliation of the accused, and that equality before the law requires assessing each case on its individual merits, not establishing a rigid quota system between the parties.  In other words, bumping and shooting both fit in the category of assault, but they are not equally serious and should not be treated that way just because the individuals accused belong to different political parties.

So, let's go back and look at what those differences are, exactly, which means remembering what Hillary Clinton actually did.  The Inspector General wrote a report for anyone with enough patience and fondness for alphabet soup.  Since I had better things to do with my life, I read over a review of the report and listened to a Lawfare podcast which interviewed both the author of the report and Peter Strozk, who handled the Clinton e-mail investigation as well as the Trump counterintelligence investigation.

A history of events

It is generally remembered that the Clinton e-mail investigation began with the Congressional Benghazi investigation.  Congressional Republicans were looking for some dirt on Hillary regarding an attack on our embassy in Libya when she was Secretary of State.  As part of the investigation, Congress asked for Hillary's State Department e-mails and received the shocking response that the State Department did not have them; that she kept them on a home sever.  

And to be clear, that was a definite no-no.  Under the Freedom of Information Act (FOIA), the Secretary of State is supposed to send State Department e-mails on the Department's official server to preserve them as public records, so Hillary was clearly in violation of FOIA from the start.  But FOIA is not a criminal statute, so her violation was not a crime.  Instead, the State Department directed her to sort out her private from official e-mails and turn over the official ones.  Since there were over 60,000 e-mails on the server, hand-sorting them was not a realistic option.  Instead, Hillary's lawyers used a search engine to separate private from official e-mails and turned over the official ones.  Hillary's lawyers ended up deciding that 30,490 e-mails were official and turned them over and that 31,830 were personal and kept them.  This happened in December, 2014.  Since the use of a private server was improper, though not criminal, the Inspector General of the intelligence community did a review and discovered classified information among the e-mails.  This was a crime, so investigation was referred to the FBI.

But her emails!

This was actually quite similar to what happened with Trump.  In his case, he took a large volume of written records home in violation of the Presidential Records Act.  This was also a violation of disclosure laws, but, like FOIA, the Presidential Records Act is not a criminal statute, so there was no crime.  The National Archives demanded the records, with the same condition in place that only official, and not personal, materials had to be turned over.  Trump turned over part of the official records.  National Archives personnel discovered classified materials among the records and referred the matter to the FBI.  No unequal treatment there.

Instead of saving the personal e-mails just in case, Hillary ordered Paul Combetta, her IT manager, to reduce her storage time to 60 days.  This happened some time in late 2014.  Since there was no subpoena or preservation order in place, this was not illegal, though it may have been ill-advised.  Combetta neglected to do so.  Then, on March 2, 2015, the New York Times, which right wingers rather absurdly keep thinking is in the tank for the Democrats, published a story reporting on Hillary's private server.  The Committee then issued  preservation order and a subpoena of all its contents.  (Did they not know before?)  And Combetta, realizing he had neglected to implement the new retention policy, deleted the existing e-mails with a program called BleachBit, which Trump persistently and incorrectly interprets as a literal acid wash.  Needless to say, that was a huge mistake!  It also points up the importance of not conducting official business on a private server.  Keeping servers separate avoids the whole problem of mixing up personal and official messages.

The FBI, through a thorough technical inspection of the server, was able to retrieve 17,488 e-mails -- some personal, some official -- in addition to the ones Hillary had turned over.  It was not able to determine how many were among the ones deleted and which were automatically deleted by the server's retention policy -- another good reason not to use a personal server for official business.  

Point of comparison: When Trump received the letter from the National Archives telling him to turn over presidential records, he sorted through them, deciding which official records to turn over and which ones to keep.  Even when he received a grand jury subpoena for all classified documents in his possession, he carefully sorted through, deciding which documents to turn over and which to keep, and deceiving his lawyers into believing that he had turned over all records when he had not

What was in the e-mails?

Of the 30,490 e-mails provided, 69 chains contained classified information. Of the additional 17,488, 12 chains contained classified information.  This meant a total of 81 chains with classified information, and a total of 193 individual e-mails.  They were classified at various level.  Strozk, on the podcast, offers some additional context.  The classified information generally did not originate with Hillary.  (I am not clear whether any did at all).  It usually originated lower in the State Department and made its way to the top.  No headers indicated that the e-mails contained classified information.  It is not clear whether the lower-level employees realized that they were sending information to a home server, nor is it clear whether Hillary recognized that the information she received was classified.

While the content cannot be disclosed, the most sensitive materials appear to have been about subjects that required a prompt response and did not have time to send on the State Department's antiquated secured system. The point was not made clear, but this suggests that even in the absence of a private server, this information would have been sent without adequate security.  State Department personnel tried to avoid classification problems by talking in oblique hints about what they were discussing.  Often, that was not good enough.

So far as I can tell, no actual documents were attached to the e-mails or stored on Hillary's server.  A few e-mails contained a (c) indicating confidential.  Hillary said that she did not recognize the meaning of the (c) and thought it was numbering paragraphs.  The FBI, including Storzk, were skeptical. (If it was numbering paragraphs, were were (a) and (b)?).  But being skeptical is one thing.  Proving beyond reasonable doubt that Hillary was lying is another.  And in any event, confidential is the lowest level of classification, including a great deal of not-particularly-sensitive material.  Mishandling of confidential information is normally treated as an administrative, rather than a criminal, matter.

Again, compare Trump, who took home 337 documents clearly marked classified.

The decision whether to prosecute

James Comey, famously (or infamously) made a public statement that all prosecutions for mishandling of classified documents involved at least one of four aggravating factors:

1. Deliberate action
2. Volume so large that deliberate action may be inferred
3. Disloyalty to the US or
4. An attempt to obstruct the investigation

Keep in mind this was not an argument that these requirements were part of the statute.  Nor was there any specific court precedent saying that prosecution was allowed only under these four circumstances.  But there was an unarticulated precedent in the sense that all prosecutions for mishandling of classified documents had involved one of these four factors.  Comey simply articulated what had once been unarticulated.  Presumably it will be the explicit, rather than implicit, standard for prosecution in the future.  

The Inspector General's Report and Lawfare review offer six factors:

1. Whether the information was marked as classified
2. Whether the information was used for official purposes
3. Whether the defendant knew the information was classified
4. Whether there was a personal warning that the information was classified
5. Whether the action was deliberate
6. Whether there was obstruction

It seems to me that (1) official markings, (2) knowledge the information was classified , and (5) intent all fit within the first Comey factor of intent.  Warning and obstruction seem to fit in the fourth Comey factor of obstruction.  The use of the information is something different and significant that doesn't quite fit in any of the Comey factors, but I will apply them anyhow, and squeeze in use somewhere.

Intentional Act:  Intent is a subjective state of mind and can therefore be very hard to prove.  I suppose normally it is inferred by surrounding circumstances.  When Reality Winner folded over a document and smuggled it out in her pantyhose, that looks very much like intent. When Jack Texiera painstakingly hand copies classified documents to show to his friends, that also looks very much like intent.  When Hillary Clinton received an unmarked e-mail discussing sensitive information in an oblique manner and responded she had the defenses that she did not know the information was classified because it was not marked as such and did its best to be vague, and besides, she did not initiate the exchange.

As for Trump, my first thought was that he was packing his things with undue haste (undue because he did not start packing as soon as he lost the election, but only after the January 6 insurrection failed, leaving him only two weeks to move) and might have accidentally included some classified material.  Accidents of this type are common, after all, even among Presidents who start packing on time.  In fact, all Presidents appear to have taken home some classified materials by mistake, which probably means we need to set up a more effective process.  So my first thought was that Trump might have the defense that he accidentally packed the wrong things in haste.

But then the DOJ came out with a piece of evidence I did not have on my bingo card -- a recording of the defendant saying, "This is secret.  Look, look!"  That sounds like pretty strong evidence of intent.

It also encompasses the second factor cites by the Inspector General -- whether the documents were used for official purposes.  Hillary's e-mails were always to State Department employees with proper classification on State Department business.  Trump took his documents home, apparently as souvenirs, and at least twice showed them to people with not clearance.

Large volume.  Again, this is a subjective decision.  What is a "large volume"?  Is 81 e-mail chains and 193 total e-mails out of over 30,000 a large volume?  What about 337 classified documents spread out over 78 boxes (or more)?  And does it matter that 337 documents is more than 337 pages, since many were multi-page documents?  Still, I would say that Hillary's e-mail server does not seem to have been primarily dedicated to confidential information.  It was entirely a (non-criminal) violation of FOIA, but the classified material was a small percentage of the total.  As for Trump -- well, likewise, interspersed among the total contents of the boxes, 337 documents does not seem like so much.  But it still seems like a lot.

Disloyalty to the United States.  Despite some lurid speculations, there is no evidence of it in either case.  Nor is there any evidence in either case that the classified materials accidentally fell into hostile hands.  There is no evidence that Hillary's server what hacked, even as the State Department was hacked.  And the Mar-a-Lago storage facility did not meet government standards of security, but the security cameras in place make any hostile access seem most unlikely.

Obstruction.  We have what looks like an open-and-shut case of obstruction in Trump's case.  When the National Archives demanded that Trump turn over the records he had taken home, Trump turned over 15 our of 78 (or more) boxes.  When Trump received a grand jury subpoena, his first impulse was simply not to comply.  When his lawyers told Trump that he must comply, Trump privately sorted through the boxes and chose which ones to let his lawyer see.  He also strongly hinted that his lawyer should remove anything that was really damaging.  He turned over an incomplete set of documents, and also moved some boxes out of Mar-a-Lago.  The search revealed 102 additional documents.  The only thing missing is a tape of Trump saying, "Let's obstruct this investigation."  

What about Hillary?  Obviously the act of deleting over 30,000 e-mails upon receiving a subpoena looks really bad. At first glance, this looks like a clear case of obstruction.  But closer investigation makes things less clear.  First there is Paul Combetta's testimony.  Combetta is the IT guy who testified that he received instructions to delete personal e-mails before receiving a subpoena or preservation order, and forgot to act until after.  This sounds very much like a loyal soldier agreeing to be the fall guy.  But Storzk and the Inspector General found confirming evidence:

• The FBI subpoenaed all Clinton's e-mails with any other government agencies likely to receive classified materials.  It compared the received e-mails to the ones Hillary voluntarily provided and found they matched.  The match was not perfect -- the 17,488 retrieved e-mails did include official business.  But the records were close enough not to create any impression of deliberate obstruction, as opposed to error.
• There was nothing particularly inflammatory about the work e-mails the FBI retrieved.  Twelve contained classified information, but only at a low level of classification.  This is not to deny that there was highly classified information in the e-mails. They included "sensitive compartment information," four "special access program" and one that was "merely" top secret.  But all of these were among the e-mails Hillary voluntarily provided.  The deleted ones were merely "secrete" or "confidential."  This creates an inference of error, rather than obstruction.  
• The FBI also found messages to Combetta several months before the preservation order telling him to reduce storage time for her personal e-mails to 60 days.  There was other extrinsic evidence as well supporting Combetta's account.

So, basic conclusion, the investigation of Hillary Clinton's e-mails was not a frivolous one and appears to have been completely appropriate and not partisan in its origins.  But the decision not to prosecute was also well in line with existing precedent.

And as for Trump -- if he had cooperated, chances are good that no charges would have been brought.  But he chose to obstruct.  So he was charged.  

Volume V: Part 3, the Trump Tower Meeting

 

So, with Donald Trump under indictment and both Big Ones having dropped, it seems almost anti-climactic to go back to the Senate Intelligence Committee of Trump/Russia, but here we are.

The investigation is also rapidly declining in juiciness, moving now to Trump's business ties to Russia, and the to Trump Tower meeting, which has been examined in exhaustive detail and determined not to have gone anywhere.  Still, there are some redacted portions that have to make you wonder.

Volume V makes the point, not emphasized in the Mueller Report, that the people who approached Donald, Jr. about potential dirt from the Russian government were long-time business associates. Presumably this had a disarming effect on Junior and made it hard for him to think of the whole business as anything improper, let alone sinister.  The section goes on for over 140 pages, from 259 to 406, much of it decidedly dull.

Junior was approached by Emin Agalarov, son of Aras Agalarov, both associates of the Trumps who had done much to arrange the Miss Universe competition in Moscow and to make ultimately failed negotiations for a Trump Tower in Moscow.  

Aras Agalarov

The Agalarovs have significant ties to Russian organized crime including "individuals involved in murder, prostitution, weapons trafficking, kidnapping, extortion, narcotics trafficking, money laundering and significant other criminal enterprises," and also with the Russian government, including individuals who targeted the US elections (p. 261).  In other words, they are fairly typical Russian oligarchs. This is followed by three and a half pages redacted, so the usual caveat applies that whatever his hidden is never as juicy as you imagine.  They also know the individuals involved in the Trump Tower meeting, although neither father nor son attended (p. 267).  

The report gives all  back-and-forth about the negotiations for the Miss Universe contest in Moscow, the only part of which is any way interesting or significant is that Trump was very eager to meet with Putin while in Moscow for the pageant, although no such meeting ultimately took place.  

It also traces Trump's movements in Moscow in great detail, presumably to see if there was any possibility of a sex tape used for blackmail. Trump was only in Moscow for a day and a half, and one night, and was out in public for most of the time.  He arrived at 2:45 p.m. on November 8, 2013 and spent the afternoon and evening in public, retiring at 1:00 a.m.  He did spend the night at the Ritz Carlton, but not in the Presidential suite.  His bodyguard, Keith Schiller, said that they were approached by a man who offered to send five prostitutes to their room, and that they refused (p. 294).  Schiller made clear that he saw such an offer as dangerous and was firm in his refusal. Trump left a gap in his public schedule the next day in hopes of a meeting with Putin that did not materialize.  The gap was roughly from 4:00 p.m. to 7:30 p.m., when the pageant began. Trump attended the pageant and an after-party, staying till nearly 3:00 a.m. and then catching a plane back to New York.

So, there were two times during the visit that Trump was unsupervised -- during the night that he stayed, and the following afternoon before the pageant.  His bodyguard stepped in to block any prostitutes during the night, and the following afternoon was spent in anticipation of meeting with Putin.  It is not impossible that some prostitutes visited during one of those times, but it seems unlikely.

Emin Agalarov

Following the pageant, the Trumps and the Agalarovs attempted to negotiate building a Trump Tower in Moscow (described in painstaking detail), but it fell through by the end of 2014.  It is neither surprising nor sinister that the Agalarovs voiced support when Trump announced his campaign for President.  More interestingly, Emin Agalarov's agent Rob Goldstone (recall that Emin is a singer), approached VK, a Russian social media company, f about setting up an account for the Trump campaign.  As with any Russian company, VK is closely intertwined with the Russian government.  VK also has ties to the Russian intelligence services and the Internet Research Agency (IRA), a/k/a the Troll Farm.  Three mostly redacted pages follow, although ultimately the Committee did not find any significant interaction between the Trump campaign and Russian social media.

The Agalarovs arranged the Trump Tower meeting between the Trump campaign and government officials, although they did not attend.  It still seems a bit suspicious that Aras (Russian oligarch, probably target for NSA surveillance) passed the message through his son (oligarch's son, singer, less probable target), who sent the message through his agent Rob Goldstone (entertainment agent, British national, permanent US resident, not any sort of target).  Goldstone told the Committee that his alarming language ("This is obviously very high level and sensitive information but is part of Russia and its government support for Mr. Trump") was based on his supposition and not on any direct information from Emin.  

Recall that at the time, the Trump campaign had no idea that the Russians had hacked the DNC or the Clinton campaign, or that they had plans to release the information in a damaging manner.  Their focus was primarily on the Clinton Foundation, which they had all manner of lurid speculation about.  Junior's immediate thought appears to have been that the Russians had some negative information on the Clinton Foundation.  One can imagine that Junior was thinking in terms of something the Russians learned in their direct dealings with Hillary as Secretary of State, and it may not have occurred to him that there was anything improper, let alone illegal, about accepting such information.  One person who did recognize the offer as potentially dangerous was Paul Manafort, who warned the others not to expect anything to come of the offer, and that the Russians had an agenda of their own and should not be trusted. Donald, Jr., Jared Kushner, and Paul Manafort, met with the Russian delegation.

Natalia Veselnitskaya

Volume V sets forth the meeting, including the leadup and the aftermath, in excruciating detail, including where the Russians were waiting before the meeting, and where they went afterward to discuss it.  It also give information (much of it redacted) in the Russian delegation.  Its leader, Natalia Veselnitskaya, is a Russian lawyer most noted for her advocacy against Magnitsky sanctions and championship of sanctioned individuals.  The report details her connections to the Russian government and intelligence services, with over four pages redacted, except to comment that former FBI director Louis Freeh is now a lobbyist for the Russian government against the Magnitsky sanctions.  (I didn't know that!).  Accompanying Veselnitskaya was Rinat Akhmetshin, a Russian-American lobbyist with suspected ties to the Russian government and intelligence community, including a hacking and dumping history (four and a half pages blacked out). Akhnetshin knew Sam Patten, a Trump campaign official, but not Manafort.

As for the meeting itself, Volume V does not add anything that was not already known.  Veselnitskaya lobbied against the Magnitsky sanctions, denounced their author, Bill Browder, and attempted (not very successfully) to tie him to the Democrats and the Clinton campaign.  No one considered the meeting to have been productive.  Junior specifically asked about the Clinton Foundation and received nothing.  Five days later, the news of the Russian hack of the DNC came out.  Goldstone found the whole thing "eerily weird."

All of this was known before the Committee report.  The Committee released one "eerily weird" nugget not known before.  Paula Shugart, president of the Miss Universe organization, said that Goldstone had told her that he went to the meeting because the Russians "supposedly had emails from the Democrats and dirt on Hillary and then it turned out to be something about adoptions."  (p. 379). When the report of the hacks came out, Shugart thought it sounded like exactly what Goldstone was talking about (p. 380).  This is the only evidence anyone has found tying the Trump Tower meeting to the hack and leak -- an tenuous tie, and a questionable one, but there it is.

There does not appear to have been any follow-up, other than a few more attempts by Veselnitskaya to lobby against the sanctions after Trump was elected.  Maybe there was nothing more.  On the other hand, as was so often the case, the Committee had no access the the Russian side of things. We know that about five hours after Trump made his "Russia if you're listening" remark, but Russian intelligence really did escalate its attempts to hack Hillary Clinton directly.  We do not absolutely know that this was cause and effect, but the timing is suspicious.  It strongly implies that the Russians learned that Trump was open to their help and gave it.  

Could it be that this meeting showed the Russians that the Trump campaign was open to their help and influenced their future actions?  There is not way to tell.

What is NOT a Two-Tiered System of Justice?

 

Presumably many conservatives will take offense at that proposition, so let me modify it by one word.  Authoritarianism consists of exactly one proposition . . . 

Actually, though, when you break it down, this really consists of four propositions:

1. The law protects our in-group
2. The law does not bind our in-group
3. The law binds out-groups
4. The law does not protect outgroups

There are authoritarians the world over, of course, but I am most familiar with the American variety.  The United States is founded uniquely on a hostility toward government and demand for personal freedom, so what goes for Americans may not apply in other countries.  

And current Republican outcry over a two-tier system of justice makes quite clear that to American authoritarians, the most important of the four propositions is the second -- the law does not bind our in-group.

That explains a lot.  It explains why so often you just scratch a libertarian and find an authoritarian lurking beneath.  It explains why it is so easy to conflate anti-state with anti-other. It explains law and order types' sudden conversion to civil libertarianism the minute a right winger gets in the crosshairs of the law.  And it explains Republicans' endless bleating about a two-tier system of justice.

Seriously, try to imagine the implications of Republicans' quota system of law enforcement if one tried to apply it in an even handed fashion.  When Hillary Clinton was under investigation by the FBI for her server, the FBI would have been required to investigate Trump as well for something -- not mishandling of classified documents, obviously, since he had never had the opportunity, buy maybe for some fraud by Trump University.  If Hillary had been indicted, Trump would also have to be indicted, just to be even-handed.  And if Trump University, after all, proved to be a matter for civil litigation and not quite indictable, well, so much for locking Hillary up.  Anything else would be a two-tiered system of justice.

I realize Republicans will say I am being ridiculous.  If asked to explain why, presumably they would say that Hillary was the candidate of the incumbent party and there should be no restriction on an incumbent administration investigating members of its own party.  The problems is in investigating the other party.  Or, as one Republican said, "Republicans should investigate Republicans and Democrats should investigate Democrats."

Again, can we think this through for a minute?  Do you actually want to give the out-party an unlimited license to crime?  I mean, sure, if Democrats are in power, Republicans should have an unlimited licenses to crime.  But next time a Republican is President, do you want to extend reciprocal privileged to Democrats?

Probably the option most Republicans would prefer would be to pass a law forbidding the investigation or prosecution of any Republican office holder, candidate, or staffer.  (Lobbyists, think tankers, major donors and talking heads will probably find their way in later).  While I have no doubt that this is what Republicans would prefer, it is unlikely to survive a constitutional challenge.  

Alternately, one can argue, as some Republicans do, that the real problem is not that the justice system is politicized, but that it is not politicized enough. Their proposal is to fire any career federal employees with any sort of discretionary power and replace them with political hacks.  The federal government should be openly used as a machine for patronage and persecution.  The obvious response to that is what happens next time a Democrat is in office.

There are two answers to that, one honest and one dishonest.  The honest answer is that if Republicans wield their power right, they can use it to assure that no Democrat is ever elected President again.  The dishonest answer is to say that we are already seeing what it looks like, that the federal bureaucracy is already wholly politicized in favor of the Democrats and Republicans only want the same opportunities.  And no doubt they would say, how can it be any worse than it already is.  That is a very foolish question.  Of course things can always get worse than they are now.  Turn the federal bureaucracy into an agency of patronage and persecution and if you ever slip and let the other side win, you will quickly find out just how much worse it can be.  Once again, the court system (including trial by jury) may be the best safeguard here.

Another alternative is to dissolve the entire public integrity division of the Justice Department and halt any prosecutions for political corruption whatever. That would be genuinely even-handed and would pass constitutional muster, but it is not what most people have in mind when they talk about draining the swamp!  Nonetheless, there are some signs that is what some Republicans are calling for.  Some (don't even want to bother looking for link) are saying that while Trump led chants of "Lock her up!" during the campaign, he did not act on that because after he became President his advisors convinced him of how un-American that would be. Sigh!  Trump based his entire campaign on arguing that bigwigs escaped punishment for actions that were punished for the little guy.  And how the argument is that being a bigwig should, after all, grant an exemption from punishment, at least from the opposing party.  

Finally, I can thing of one approach that might actually work.  It might pass constitutional muster, allow draining the swamp, and not be perceived by Republicans as political persecution.  That would be to establish a special office within the Department of Justice for prosecuting members of the opposing party.  It would not consist of DOJ careerists, since Republicans see those as hopelessly biased.  Instead, members would be nominated by the President and approved by the Senate and would all be required to be members of the opposing party.  (Low ranking staffers would not be subject to confirmation, but could be hired from outside the government)..  Any politically sensitive matter in the DOJ involving the opposing party would be referred to this separate division.  Perhaps a devil's advocate could be established to argue against the investigation.  And maybe, just maybe, MAGA Republicans might actually agree to such a system.

Although I have not doubt that the minute prosecuted a powerful MAGA Republican, they would decide that it, too, was hopelessly biased.

Another "You Bumped Me So I Can Shoot You"

I get that it is asking to much to expect Trump supporters to be reasonable, but at least two things they claim about the indictments are really infuriating.

One is the suggestion that the timing is politicized, and that the Department of Justice should refrain from indicting presidential candidates in the year before the election. It is general DOJ policy not to take any action in a politically sensitive matter in the 60 days before an election.  In a matter so sensitive as a presidential election, there is certainly room to argue that 60 days is not enough, and that the DOJ should refrain from taking politically sensitive actions for 90 days before an election.  In extremely sensitive matters, one can even make the argument for six months.  (That would mean the beginning of May).  

Certainly no such consideration was extended to Hillary Clinton. The FBI investigation into her e-mail server began in July, 2015 -- the year before the election, and about the same time of year as Trump records indictment was dropped.  No one at the time claimed that it was unfair to open an investigation into the Democratic front runner so soon before the election.  FBI Director James Comey announced the decision not indict on July 5, 2016, about four months before the election.  Naturally, he denied that politics played any role.  I myself suspect that politics may have played a role -- and not necessarily improperly.  Recall, at the time Comey made his announcement, Hillary had secured the Democratic nomination and the convention was less than three weeks away.  Since it was unthinkable at the time to run a candidate under indictment, the Democrats would have had under three weeks to choose a replacement, with no mechanism in place for making such a choice.*  The result would almost certainly have been to throw the Democrats into complete disarray and throw the election to Donald Trump.  So politically fraught a decision is not to be made lightly.  I invite anyone to consider the Republican reaction if the DOJ were to drop a Trump indictment, not in July, 2023, but in July, 2024.

Well, Republicans may say, that is different.  Congressional investigators only learned about Hillary's private server the year before the election, so it was not possible to begin the investigation any sooner.  Trump's attempt to subvert the election was known before he even left office, and his keeping of classified documents was known in early 2022. But this ignores the extent to which investigation was delayed by Trump's obstruction. And in any event, can anyone doubt that it an indictment had dropped in 2022, Republicans would have cried political motivation because it affected the midterm election.  All of which comes down to saying that federal prosecutors have about one year in which to indict any candidate for President before their actions are considered politicized.

The other is the ridiculous claim that indicting Trump is criminalizing politics as usual, and that Trump's actions are no different from Hillary Clinton saying years after losing that she considered Trump to be illegitimate.  To anyone who would say that, allow me to pose the following hypothetical.  Suppose (as seems most likely) that the 2024 election is a Trump-Biden rematch. (Likely). Let us suppose that Biden spends the entire election saying that there is no way that he can lose honestly, and that if he loses, it will be the result of illegal, Jim Crow style vote suppression by Republicans.  Let us further suppose that the election is close and comes down to a handful of swing states, any one of which could sway the election, including Michigan.**  We will further suppose that Biden loses Michigan by tens of thousands of votes, but Michigan has unified Democratic control of the state government, so Biden plans to use that to reverse the outcome.

Suppose Biden and his associated start accusing Michigan Republicans of Jim Crow style voter suppression and intimidation and call out two Republican poll watchers by name, falsely accusing them of forcibly turning away minority voters.  Let us suppose that Biden and his followers file dozens of lawsuits to reverse the outcome, all of which are laughed out of court as completely lacking in merit.  Biden than pressures leaders of the Michigan legislature to declare him the winner and choose a new slate of electors.  When they refuse, he has a group of Michigan supporters meet in the Michigan capitol the day electors meet, declare themselves the true electors, and submit certificates declaring him the winner.  Let us further suppose that Biden calls up the Michigan Secretary of State and urges her to "find" just enough votes to reverse the outcome, threatening her with criminal charges if she fails to come through.  And let us suppose that Biden pressures Kamala Harris to unilaterally reject the Michigan electors on the spurious grounds that the Michigan outcome is disputed and either send it back to the legislature to reconsider, or declare him the winner.

Does anyone seriously think that Republicans would shrug all of this off as politics as usual?  Does anyone think that the party that considers it a crime for Joe Biden to so much as talk to his son's business associates would not see any criminality in all of that?

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*Hillary did not name Tim Kaine has her running mate until the convention.

**To be clear, the 2020 election did not come down to Georgia.  Trump would have to sway six swing states to alter the outcome, hence his attempt to reverse the result in all six.

The Other "Big One" in Georgia

 

Fani Willis

Confession: I have not finished reading the Georgia indictment of Donald Trump.  Not only is it 98 pages long, it is less accessible than the federal indictment, being written in dense legalese instead of plain English.  The federal is told in narrative form, or rather in multi-narrative form.  It has sections separately describing what Team Trump was doing in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin (not Nevada, for some reason), followed by a section on the pressure on Mike Pence and a section on the "exploitation" of riots at the Capitol.  Following this are four very brief sections alleging violation of four federal statutes, but never specifying which act applied to which count, or which acts were per se illegal and which were not in themselves illegal, but were taken in furtherance of a criminal conspiracy.  In other words, the federal indictment gives a clear and coherent factual narrative, but does not specify which acts violated which laws.*

The Georgia indictment is a different matter.  It charges 161 distinct acts, all in rigid chronological order, rather than narrative order.  Thus actions associated with, say, appointing a false slate of electors may be interspersed with actions associated with seeking to illegally access voting machines, or attempts to intimidate Ruby Freeman.  On the other hand, the Georgia indictment makes very clear which actions were actual crimes and which were merely taken in furtherance of the overall conspiracy.  And it is not too difficult to tell by context and proximity which actions were taken in furtherance of which crimes.

Both indictments make the false electors the center of the case.

The federal indictment charges the rather vague crimes of fraud on the United States, obstructing an official proceeding, conspiracy to obstruct an official proceeding, and conspiracy against civil rights (specifically, the right to have one's vote counted).  The Georgia indictment is more specific.  Neither the federal government nor any state, including Georgia, has specific laws forbidding people who are not electors from meeting and casting votes for the losing candidate. So the Georgia indictment charged the fake electors with impersonating public official and falsifying official documents.  Sounds reasonable to me.  It also charges everyone who lied about the election to Georgia legislative committees with false statement.  I do not know enough about Georgia law to know the difference between false statements and perjury.  Regardless, witness testimony to a legislative committee is usually given under oath, and is usually prosecutable as perjury or some similar crime for lying, so the indictment seems reasonable.  

Team Trump's attempts to pressure both the legislature and the Secretary of State to overturn the election are charged as solicitation to violate oath of office.  That is certainly reasonable and appropriate for the Secretary of State.  Many of Trump's defenders have defended his urging state legislatures to overturn the vote as protected by the right to petition.  I actually have some sympathy for this view and am not convinced that trying to persuade a legislature to pass unconstitutional legislation is a crime, absent some sort of bribe or threat.

The Georgia indictment also charges a few Georgia-specific crimes.  It was known that a local election official in Georgia illegally accessed voting machines.  It turns out she was acting at the behest of Sidney Powell.  And while the threats to Shay Moss and Ruby Freeman were well documented, up until now they were known mostly as victims.  In fact some of the defendants came to Freeman's door or made unwanted phone calls to her, offering to "protect" her if she would falsely testify that she engaged in election fraud.  Freeman refused.  Her role was actually more heroic than I had been led to understand until now.  Of all the crimes in the indictment, this harassment of an ordinary citizens seems most outrageous.

There are some questionable parts of the indictment as well.  In particular, it alleges actions outside of Georgia, and therefore beyond the authority of any Georgia prosecutor.  It defines rather broadly what constitutes an act "in furtherance" of the conspiracy.  In fact, a common technique among Trump supporters is to ask with mock incredulity whether actions such as asking for a phone number, sending a tweet, urging other to watch TV, renting a room, or encouraging others to attend a hearing are crimes.  The answer, of course, is that these things are not, by themselves, crimes, but can be crimes if undertaken as part of a criminal conspiracy.  Renting a room is not a crime.  Renting a room to commit crimes in -- in this case, impersonating electors and forging electoral certificates -- is an act in furtherance of a criminal conspiracy.  The indictment also alleges a whole serious of actions  involved in planning to assemble fake electors to cast fake certificates that are not crimes but are clearly undertaken in furtherance of a crime.  Likewise, encouraging someone to attend a legislative committee meeting in order to lie to the committee is an act in furtherance of a crime.  But I am inclined to agree that some of the actions alleged, such as sending tweets or encouraging people to watch TV, seem rather remote and dubious. While it is helpful in understanding the indictment for it to specify what acts were taken in furtherance of a conspiracy and what were actual crimes, it also feeds Trump supporters' paranoia more than the rather vague federal indictment.

And, most famously, the Georgia indictment brings in a large assortment of co-conspirators -- 19, to be specific.  All indictments up until now have either targeted Trump alone or named one or two co-conspirators at most, although the existence of others was more or less admitted.  In fact, the federal indictment names six unindicted co-conspirators, five of whom are easily identified and one who remains a mystery.  The Georgia indictment names a great many more.  Some are nationally prominent.  Some are not nationally known, but are persons of some importance in George.  A few are local election officials little known outside their county.  And a few (most notably the ones involved in intimidating Ruby Freeman) are just regular folks.  

And I am inclined to think that naming many defendants is the part of the indictment that raises the most alarm an paranoia among Trump supporters.  Up until now for all the claims of persecution and "they're coming for you next," no one was actually targeted except for Trump himself, along with a few close associates.  Naming so many people makes it easier to tell Trump supporters that they could be next.

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*It is also clear from the federal indictment that the attempt to overturn the election was more intense in Georgia than in the other states.  The other states had Republican legislatures but Democratic Secretaries of State. Team Trump therefore limited itself to trying to persuade the state legislatures to overturn the results, and, when the attempt failed, to choosing fake slates of electors.  Georgia, by contrast, had a Republican Secretary of State, so Trump repeatedly pressured him to change the vote outcome.  This was the most clearly criminal part of the attempt to overturn the election, so it is appropriate that 

The Other "Big One" is Coming Down the Pike

Fani Willis, Fulton County District Attorney

Rumor has it that the other Big One is coming down the pike, as soon as Tuesday.  Fani Willis, District Attorney for Fulton County, Georgia, is expected to indict Donald Trump for his attempt to pressure the Georgia Secretary of State into changing the election result, and possibly for other attempts to overturn the election in Georgia.

I am very curious to see how Republicans react to this one, as compared to Jack Smith's Big One.  There are some interesting similarities and differences.

On the one hand, clearly this indictment will be just as overtly "political" as the last one. On the other hand, the evidence of crime is much more straightforward, and the criminal charges can be simple and not stretch any existing law.  Falsifying vote outcomes is a well-established crime that has been prosecuted many times in the past.  On yet another hand, rumor has it that Willis is prosecuting, not just Trump for the phone call, numerous prominent Georgia Republicans and some local activists.  This is still well within her authority, but prosecuting numerous Republican leaders and activists, no matter how much they deserve it, will feed the persecution narrative. 

As an elective local District Attorney, Willis cannot be accused of being part of the "deep state," or of being under the command of Joe Biden.  But, as an elected official, she can be accused of political grandstanding and pursuing a partisan vendetta.  Fani Willis is Black.  Trump has repeatedly called her a racist and accused him of picking on him because he is White.  She is also the first woman to bring charges, which might awaken other issues for Trump and many followers.  As a state official, Trump, even as President, will not be able to stop her from prosecuting, or to pardon himself.  On the other hand, Willis will be running for reelection at the same time Trump is running for election.  Trump and his supporters can back a challenger.

So I am very curious to see what happens when the second Big One comes down, and how it compares to the first Big One.