Monday, July 17, 2023

Fun With Facts

The first of the four interlocking schemes executed by Trump and his close associates to keep him in power is the disinformation campaign referred to as “The Big Lie.” The publicly available evidence makes plain that Trump’s plan to retain the presidency regardless of the vote count was conceived well in advance of Election Day. In July 2020, he declined to agree that he would accept the results of the election, telling Fox News host Chris Wallace, “Look, you—I have to see. No, I’m not going to just say ‘yes.’ I’m not going to say ‘no.’ And I didn’t last time, either.” In September 2020, he responded to a pointed question about the peaceful transfer of power by stating, “We’re going to have to see what happens.” These statements were accompanied by many others in which he insisted that he could lose the election only through fraud. In August 2020, he asserted that “the only way we’re going to lose this election is if this election is rigged”—and one week later, he stated that “the only way they can take this election away from us is if this is a rigged election.”

Trump appears to have consulted with an outside adviser, Tom Fitton, on a plan to declare victory, no matter what, on Election Day, and on a draft statement for Trump to deliver. That draft, dated October 31, 2020, which the Select Committee obtained from the National Archives, said “we had an election today—and I won.” The statement goes on to say, “the Ballots counted by the Election Day deadline show the American people have bestowed on me the great honor of reelection to President of the United States.” (It is worth noting here that there is, of course, no “Election Day deadline.”)

Just pausing for a personal note:  if Tom Fitton is not indicted by the DOJ for some of the crimes outlined in this memo (crimes I'm skipping over because BORING, and I mean that as a lawyer.  We're sticking with some of the more interesting facts, today.), I, for one, will be sorely disappointed.  It strikes me he is as culpable as Giuliani or Eastman. And, if anything, stupider than either of them.

In a recorded deposition, Greg Jacob, former counsel to Vice President Mike Pence, testified about a conversation that he had with Pence’s chief of staff, Marc Short, prior to Election Day. Jacob said:

Marc had indicated to me that there was a possibility that there would be a declaration of victory within the White House that some might push for, and this is prior to the election results being known. And that he was trying to figure out a way of avoiding the Vice President sort of being thrust into a position of needing to opine onthat when he might not have sufficient information to do so.

Select Committee member Rep. Zoe Lofgren read from a memo, which the Committee obtained from the National Archives, that Jacob sent to Short on Election Day, apparently following up on their previous conversation. According to Rep. Lofgren, in the memo, Jacob said:

[I]t is essential that the Vice President not be perceived by the public as having decided questions concerning disputed electoral votes prior to the full development of all relevant facts.

Jacob and Short appeared already very concerned on Election Day that Trump would make a declaration of victory, based on alleged fraud, without information to back up the claim.

The public record alone is thick with information that damns Trump and his actions before and after J6.

On November 1, 2020, Trump reportedly told associates that he was going to declare victory no matter what if it looked like he was “ahead” on election night. An audio recording from three days before the election appears to confirm that. Trump advisor Steve Bannon told a group of associates:

[W]hat Trump's going to do is just declare victory, right? He's gonna declare victory, but that doesn't mean he's the winner, he's just gonna say he's a winner. The Democrats—more of our people vote early that count. Theirs vote in mail, and so they’re going to have a natural disadvantage and Trump’s going to take advantage of it. That’s our strategy. He’s gonna declare himself a winner. So when you wake up Wednesday morning, it’s going to be a firestorm. Also—also if Trump is—if Trump is losing by 10:00 or 11:00 at night, it’s going to be even crazier, you know, because he's gonna sit right there and say they stole it.... I'm directing the Attorney General to shut down all ballot places in all 50 states. It's going to be no, he's not going out easier. If Biden is winning, Trump is going to do some crazy shit.

Trump's argument was simple:  who you gonna believe?  Me, or your lyin' eyes?

On election night, Trump was told by multiple people, including his former campaign manager Bill Stepien and campaign senior advisor Jason Miller, that it was too early to declare victory because votes were still being counted. Nonetheless, Trump rejected their counsel and instead, according to Miller, followed the advice of Rudy Giuliani to “go and declare victory and say that we won it outright” on election night.

That night, after all votes had been cast but long before they had been fully counted, Trump made a late-night statement at the White House: “Millions and millions of people voted for us tonight, and a very sad group of people is trying to disenfranchise that group of people. And we won’t stand for it.” Trump then falsely claimed that the election “was just called off” while he was “winning everything.” He insisted “we did win this election. . . They can’t catch us."

Trump went on to wrongly describe the continued counting of lawfully cast ballots as “a fraud on the American public.” He added, “We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list, okay?”When Trump made this remark, he had already been briefed by Stepien, who told him that it would take a long time to count all of the votes because mail-in ballots were counted later than in-person ballots. According to the testimony of his attorney general at the time, Bill Barr, “Right out of the box on election night, the President claimed that there was major fraud underway...[T]his happened as far as I could tell before there was actually any potential of looking at evidence.

The election was conducted, in other words, the way every election in America since the Constitution (at least) has been conducted.  The vote count ends when the vote count ends.  At least until Bush v. Gore decided it had to end on a date certain.  But midnight on Election Day, or even hours earlier, is not the determining factor as to which votes are counted, and which are not.

We also see (finally!) the roots of Trump's argument with mail-in ballots.

According to the U.S. Elections Project, more than 100 million Americans voted early in 2020, with more than 65 million voting by mail. However, many states have laws prohibiting elections officials from counting, or even processing, those votes before Election Day. Because of the sheer volume of lawfully cast mail-in and early in-person ballots, they could not be counted all at once on Election Day. As a result, final vote tallies in 2020 were not known on November 3.

Even before election night, it was widely expected that day-of votes, which would likely be reported by the media on election night, would heavily favor Trump, while mail-in and early in-person votes, which would likely take longer to tabulate, would heavily favor Biden. This expected trend was, indeed, reflected in the final results.  

 In other words, everything functioned as it was supposed to, and Trump lost.  EOD.

All right, let's be relentless about it:

Trump’s former campaign manager Bill Stepien explained to Trump in advance that this would be the case, a phenomenon that was referred to as a “red mirage.” Attorney General Bill Barr also confirmed in congressional testimony that “everyone understood for weeks that that was going to be what happened on election night.” Fox News Politics Editor Chris Stirewalt explained the reason for the so called “red mirage”:

[I]n the 40 or 50 years. . . that Americans have increasingly chosen to vote by mail or early or absentee Democrats prefer that method of voting more than Republicans do. So basically in every election, Republicans win Election Day and Democrats win the early vote, and then you wait and start counting. And it depends on which ones you count first, but usually it’s Election Day votes that get counted first. And you see the Republicans shoot ahead. . .So in every election and certainly a national election, you expect to see the Republican with a lead, but it’s not really a lead.

Stirewalt continued: “[N]o candidate had ever tried to avail themselves of this quirk in the election counting system,” but “the Trump campaign and the President had made it clear that they were going to try to exploit this anomaly.”

Yes, I know; it's a terrible, terrible thing and an assault on democracy and the end of the republic if we can't all hold hands and sing kumbaya.  Except I know people who insisted to their dying breath that LBJ won in '64 by counting the votes of dead people (as he allegedly did, with slightly more evidence, when he won his Senate seat).  No, there was no evidence for it; yes, they were sore losers who deeply believed in Goldwater.  And I'm sure most of them died on Medicare.  Go figure.

Now let's chase down a rabbit trail that's suddenly in discussion again:

Nevertheless, Trump and close allies made unsubstantiated allegations of fraud to support their claim that the election was being stolen from Trump. (See Box 1 on Election Fraud Conspiracy Theories.) Those allegations of fraud were refuted over and over again by federal andstate officials as well as attorneys on Trump’s own campaign staff. Trump campaign lawyer Alex Cannon, who was tasked with “assess[ing] allegations of election fraud,” testified that he reported to Mark Meadows in “mid to late” November 2020 that he wasn’t “finding anything that would be sufficient to change the results in any of the key states,” and that Meadows appeared to accept his conclusion stating: “so there’s no there there.” Trump Deputy Campaign Manager Justin Clark also confirmed that it was “fair” to say Giuliani never “produced evidence of election fraud.” And former campaign senior aide Jason Miller testified that “to say that [this so-called proof of election fraud] was thin is probably an understatement.”

Despite all of this information, Trump publicly maintains that he truly believes that there was massive election fraud, that he won the 2020 presidential election, and that his “conviction became even stronger as time went by.” He further claims that he is absolved from any potential criminal wrongdoing arising out of these statements and actions on the basis that being president gives him “complete and total immunity.”

In describing Trump’s claims of fraud and attempts to overturn the election, Bill Stepien testified: “I didn’t think what was happening was honest or professional.” Moreover, all the while, Trump was privately acknowledging he had lost the election, including in a conversation in which White House Communications Director Alyssa Farah Griffin recalls him saying, “Can you believe I lost to this effing guy?”

Let's stop and sum this up a moment:  Trump's argument is basically that of a child who doesn't like the decision made against him.  He throws a tantrum, insists it's "NOT FAIR," and he "DID TOO WIN, CHEATERS!"  Sometimes he says it that plainly, sometimes he tries to dress it up in more adult language about "fraud."  But crying "fraud" is not the same thing as proving fraud, and Trump has never done that.  Nor are any of the actions he took in rejecting the election outcome justified under law.  Period.

All 101 pages of the fact recitals in this memo come down to that.

Pursuing the details of the facts a bit futher, we have to walk a fine line here, because this information doesn't go to intent (did Trump intend the actions that are elements of a crime?), but it does go to the narrative the jury needs to understand how these facts constitute a crime (remember, I'm leaving out the legal analysis here). Let's focus on the highlighted paragraph.

The second claim, that he has "complete and total immunity," is a variation on Nixon's "when the President does it, it's legal."  Utter bullshit, in other words.  Like the poor sod I represented in a federal criminal case almost 40 years ago who insisted the gun in the car he was driving was not his (it wasn't, so far as the facts established), so he couldn't be guilty of possession of a firearm as a convicted felon.  He never understood possession didn't mean ownership, but just "custody and control." And nobody else was in that car at the time. Trump won't get anywhere with that argument, which, not coincidentally, he hasn't been making lately.  Maybe he'll revive it when DOJ indicts him.

The first part of that paragraph is more interesting.  The way criminal intent is commonly understood is as "motive," a term always employed in murder mysteries where you can't find the crime of murder without a "motive" (IRL, of course, you can).  And Trump says he had good reason to challenge everything:  fraud.

Okay, let's examine fraud.  At common law (and so primarily at law in legal analysis), fraud undoes whatever transaction it affects.  A contract tainted by fraud can be undone back to the signing of the contract.  No one, the idea is, can benefit from fraud.  In elections, fraud sufficiently shown to call into question the results ( where it's a matter of a few ballots between the candidates), can force a re-election.  It's a pretty dramatic remedy, in other words.

And that's why it takes an equally dramatic showing to prove fraud.  It's like telling a lie.  We all think the legal version of lying is perjury; but it isn't.  Perjury is very serious, with very serious penalties; so it can't be easily proven, or else any mistaken statement is perjury.  Similarly, you can make misrepresentations, either intentionally or negligently, and be held accountable for them (misrepresentations, too, are lies; but they are not perjury.) Inducing someone to enter into a contract can be misrespresentations, without being fraud.  But mispresentations don't undo a contract; and fraud cannot be negligently committed.  It must be intentional.  And it must be a grave injustice to let the contract tainted with fraud, stand.  Just claiming "fraud" is not enough, in other words.

Let me stick to the contract example:  if I'm a party to a contract and I think I was defrauded to enter into it, does that let me out of the contract?  No; not unless I take my evidence to court and prove fraud was involved.  I can't just refuse to comply with the contract because I scream "FRAUD!" If I do, I'm liable for breach of contract unless and until the court finds the contract itself was fraudulent; and even then I might be liable for my breach.

So you can't lose an election and scream "FRAUD!" and set about to overturn that election by any means at your disposal.  Trump tried to establish election fraud in 60+ cases. He failed to do so in every one.  That was the end of the matter, not an excuse, a "King's 'X'," to take matters into his own hands as the still sitting POTUS.

This is sometimes described as "intent": i.e., he didn't intend to commit a crime, he intended to correct an injustice. Except it doesn't work that way, and it's not a defense to a criminal action.  The corollary is the "insanity defense," but that defense goes to the ability to form a mens rea to commit the crime; and it doesn't absolve you of your actions.  It only determines the punishment (generally confinement to a mental institution v. years in a penitentiary).  Either way, you're held responsible, in a sense, for the crime.

Trump can insist he isn't guilty.  Lots of people in prison do. My one criminal client left the courtroom insisting he did nothing wrong.  It didn't save him from going back to jail (although I still think that was a miscarriage of justice, for other reasons.).

The interesting thing about the above facts (and I only got to page 19.  The recital of facts covers 101 pages of this 260 page memo.  You're welcome.) is how utterly damning they are; and I haven't gotten into the particulars of the conspiracy theories about dead voters (shades of LBJ!  everything old IS new again!); truckloads of ballots in Detroit; the Dominion Voting Machines conspiracy; the "suitcases of ballots" theory (the one two Georgia vote counters are suing Giuliani over); Italygate; DeKalb County Recount errors.  And that's just section 1 of what the memo calls "Act One: Trump's rejection of the truth and embrace of schemes."  The other sections are:  "Weaponizing the Justice Department;" "Pressuring State Officials"; and "False Electoral Slates," parts a) and b). Act Two is about pressuring Pence; Act 3 is inciting the mob for J6.

And then there's the legal analysis.

Much of this comes from the Congressional hearings which are already a wispy memory.  But it's perfectly clear the failure to prosecute Trump for these crimes would be the real criminal act.  It's also perfectly clear the "why" of Trump's actions is almost wholly irrelevant.

Everytime this topic comes back around on Twitter, discussion of Trump's mental or psychological state crops up as "explanations" for why Trump decided, long before November 2020, that he could not lose the election.  And you know what?  It doesn't matter.  Is Trump a narcissist?  An infant who can't take responsiblity for his actions?  A child traumatized by a cruel father into never being able to think of himself as a loser?  I don't care, and you'll never (I don't think) hear any explanations of his actions in those terms by the prosecution.  What Trump knew is almost irrelevant. What he did is what matters.  Actions speak louder than words, and actions establish Trump's mens rea and criminal intent, not his public rants and persiflage and citing of irrelevant and incorrect statutes and legal doctrines.  Take the lesson from the E. Jean Carroll case: there's a reason Trump didn't attend that trial.  Quite simply, he couldn't afford to testify.

Had he been in the courtroom, Carroll's lawyers could have put him on the stand and used his deposition to flay him alive.  Since he ran off to Scotland for the trial, they used his deposition in his absence.  The only safe harbor Trump has in any criminal trial is that he can't be forced to testify by the prosecution.  He can sit in court every day and sulk, but he can't be forced to talk.  The contrast is that he can't put on his favorite defenses.  Oh, he might get Peter Navarro to spout off about what a great guy Trump is and even try to say Trump thought he could legitimately challenge fraud as he did (even if he gets that into evidence, it's a dead letter that will be blocked by the court's charge).  But the credibility of any witness who tries to speak for Trump when he dare not speak for himself, will be so seriously challenged it will only reinforce Trump's culpability.

Am I on solid ground to say this?  I think so.  The memo, after all, ends with possible defenses to anticipated charges, and by the topic headings alone seems to set them all aside.  There are 9 of them; it seems to leave Trump with no defense except a factual one.  And it's hard to imagine what that will be.


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