Thursday, January 06, 2022

Moving Its Slow Thighs

Obviously opinions differ on this point, so let's start here:

 LISTENING TO THE HARVARD product, Peter Navarro detailing his attempt to ratfuck us into a fascist putsch I suddenly wished I could see a list of the Harvard men who his fellow Harvard product Merrick Garland  has put in prison.  I'm wondering if such a list can be complied, either because the information is not available or that there are none. 

I'm not interested in starting a blog war here, or even an argument,  I get the frustration and the anger many feel about the insurrection and the legal response to it.  And there are legal analysis explanations for the difference between property/personal crime and "white collar" crime.  But pictures are worth a thousand words, and sometimes the legal analysis obscures more than it clarifies.


These people are committing a crime against property.


This Capitol Police officer is being assaulted. That's a crime against a person.


This man is expressing his opinion.  Or he's committing a crime against the government.  Which is it?

I'm not justifying this; I'm stating facts.  The system comes down to jurors, not angry people on the intertoobs.  Jurors like this:

He said that after some of the jurors questioned the accuracy of the two women's memories, he decided to share his own experience of being sexually abused as a child. He said that he remembered most important elements of what happened to him, but not every single detail. That swayed some jurors, he said.

"When I shared that, they were able to sort of come around on, they were able to come around on the memory aspect of the sexual abuse," Scotty David, a 35-year-old Manhattan resident, told Reuters in a phone interview. He gave an earlier interview to The Independent.

He added that coming to a unanimous verdict "wasn't easy, to be honest."

Even given the testimony in the case, some jurors saw women telling painful truths; some jurors saw women telling questionable stories.  I don't know how that determined the outcome of the trial, of what charges she is guilty on, but as with all things involving people, it comes down to people.

Had the jury not agreed to convict Ghislaine Maxwell on anything, or perhaps on less serious charges (IIRC, she was not convicted on some of the charges), would that be a good thing, or a bad thing?

Now, is Trump guilty of inciting a riot?  Of conspiracy to commit sedition?  Conspiracy to obstruct an official session of Congress?  Or just of having a big mouth and being irresponsible in public office? It's a tougher question than whether Ghislaine Maxwell was guilty of the crimes the witnesses testified she committed.  Her crimes were against persons.  Trump's crime would be one of ideas:  of planning, of encouragement, of intent.  But it's pretty easy to show you intended to enter a building through a broken window, or to injure a man in a door by closing it on him.  What was Trump's intent in giving that speech?  To incite violence? Or shoot off his narcissistic mouth?

I know how I feel.  But what can a prosecutor prove to a jury?  Aye, there's the rub.  This isn't an episode of "Law and Order," where the screenwriter gets to determine the outcome.  If Trump, or others besides people illegally in the Capitol building that day, are tried, will it be inevitable they lose?  Will it vindicate the system if they don't?  Will it make us all feel better to know someone tried? Can we prosecute on the basis that we're mad as hell, and we're not gonna take it anymore?

If the case fails, we'll remember it the way we remember the OJ trial. Marcia Clarke failed because the jury acquitted OJ in record time.  Maybe she had a weak case.  Personally I always wondered how OJ committed such a bloody and heinous murder on the street (in front of his ex-wife's house), and disposed of the murder weapon, the bloody clothes, and cleaned the Bronco spic 'n' span, so quickly.  IIRC, there was precious little physical evidence linking him to the crime, which is odd, considering how vicious the crime was, how much viscera and body fluids there would have been spraying around.

I still think OJ is guilty, though.  Random strangers don't commit such crimes and then disappear into the ether.  But unless you can make a truly convincing case, you shouldn't go to trial; against anybody.


Convincing a jury that individuals beating people with flagpoles which you can see them doing on videotape have committed a crime is easy.  Convincing them a man shouting at the crowd before the riot caused the violence, is trickier.  Not because the man is not guilty of a crime; but because proving that crime is a much dicier prospect.  And if you don't, doesn't that mean he's not a criminal?

One story currently making the rounds is that Trump sat in the White House on Jan 6th watching TV, laughing, and rewinding the TiVo so he could see some of it again?  Criminal behavior?  Or just the actions of a pig?  It could show he didn't try to stop the violence; but did he try to start it?  I think that may be the legal analysis that's required.

Cooler heads need to decide what, if anything, to charge Trump with.  The rest of us don't really have a dog in this fight; we're just mad as hell.  If the prosecutors go to trial because we scream loud enough on Twitter or Blogger, we'll just be mad at them for losing.  And that really doesn't serve the ends of justice, either.

Oh, and Peter Navarro really shouldn't be allowed among civilized people.  I wouldn't object to seeing him prosecuted for conspiracy, and hung (so to speak) with his own published words. I have not, at this point, even paid attention to what AG Garland said.  Declaring Donald Trump a criminal, or announcing criminal charges against him (without a grand jury indictment first), or anything else truly informative, would have been a violation of DOJ policy and worthy of a Trumpian "Lock 'er up!" chant.  Nothing more.  Even Bill Barr never sank that low.

So I wasn't expecting anything.  Again, this is not a TeeVee show and it's not "LOCK 'IM UP!" time.  Neither is ever appropriate in reality.  I want justice, but I want justice cool and sure and implacable. If a case can be made in court of law against Donald Trump or anyone else not storming the Capitol that day but responsible for the insurrection, let it be made in a court of law.  I have no interest in the court of public opinion. Honestly this strikes me as being as sound a legal pronouncement as any made recently by Alan Dershowitz. I'm really tired of pontificating retired Harvard Law Professors.  Laurence Tribe calling it "proof" is no more legally sound than Donald Trump prating about "election fraud."  Depending on how this is presented in court, it might not even be evidence.  That's what trials are for.

And just as a comparison (perhaps an inapt one, but rebutting the idea that justice is always swift, sure, and finished in 60 minutes), Theranos became a subject of public inquiry (so to speak) in October 2015, when the WSJ published an article questioning the use of it's proprietary technique for blood testing.  Problems occurred, lawsuits were setttled, and in 2018 Holmes was charged with fraud by the SEC in May, indicted on criminal charges in July.  The jury began deliberating in December 2021, and this year she was found guilty.

Theranos started in 2013.  Arguably, it was a fraud from the start (though I don't think that was the criminal charge brought against her).  Over 8 years later, she was finally convicted.  I know this because I looked it up, not because I was tracking every movement of this case with bated breath.  It was an important case, in some respects, and an important vindication of the prosecution of white-collar crimes.

It took 3 years to come to trial, and four months to try it.  What, is Trump going to turn into a pumpkin?  Is the statute of limitations about to expire?  Or are we just getting tired of this show and want it to end so the next one can start?  

Are we clamoring for justice?  Or for vengeance?  I don't want to out-Herod Herod.  I want the law to prevail.
Clearly I think that's right.  Do we avoid charging a former President because he's a former President?  Ted Cruz wants us to.  But it takes a court system to bring criminal charges; even Bill Barr understood that.  This isn't a matter of turning the U.S. into a banana republic, but of preserving the republic.  That's where the emphasis has to lie.  Not on "lock 'im up!" or "accountability" (which always means punishment), but on upholding the rule of law.

Let me just end with this:
More pointedly, Garland cited the Watergate investigation in defense of the pace and mechanics of the Justice Department’s investigation. This is a lethally important point. There was a long period of time in which it seemed as though the actual investigation would never get past the White House gates. For example, back in 1974, there was tremendous impatience among the Democratic majority in the House of Representatives at how slowly they perceived the Judiciary Committee’s impeachment inquiry was moving. Yet, one day, committee counsel John Doar showed up with a binder containing his statement of the case against Richard Nixon, and the fight was over at that moment. It was thinking about John Doar that reminded me that Merrick Garland convicted both of the Oklahoma City bombers after an investigation that did not leak a drop.
Posted by at

2 comments:

  1. The Thought Criminal6:47 PM

    I didn't want to see a chain of human heads, at least not till Charlie Pierce mentioned it. I wasn't expecting much of the speech because of rules but I had listened to one of the former prosecutors on MSNBC a few nights back say that there is a stipulation that making an investigation public could be done if there is an overwhelming public interest in doing so and I think there is one in this case. Several of them. I did think of something I hadn't thought of before Garland said it, how Covid might have delayed the grand jury process. But I don't think that could explain the slowness in indictments and it certainly doesn't explain the light sentences being sought in these cases. I don't remember what I read that contrasted the sentences being sought for BLM protesters and the such who were accused of far less serious crimes. And I would like to see a list of who Garland prosecuted or sentenced to stiff terms and what their pedigree is.

    This wouldn't start a blog war because what you said is an honest disagreement with me. I could probably learn something from that. I like honest disagreements with me from honest people.

    ReplyDelete
    Replies
    1. Rmj7:01 PM

      Well, 700 trials for stiffer sentences would clog the court for years, not to mention the difficulty of finding evidence to prove something more serious than trespass. Overcharge, and many of them just walk.

      It’s complicated.

      Delete

Subscribe to: Post Comments (Atom)