DONALD TRUMP’S LEGAL TROUBLES: CLOSING IN?

In late May news broke that Manhattan District Attorney Cyrus Vance, Jr. had impaneled a special

grand jury in his investigation of former President Donald Trump’s business activities. Since then, it has become increasingly likely Trump and/or his top executives could soon face criminal indictments. Reporting

indicates prosecutors have several Trump confidants in their sights, including his main money man, Alan Weisselberg.  Reportedly, Vance has targeted tuition payments the Trump organization made for Weisselberg relatives as potential tax evasion.

On May 20, New York Attorney General Leticia

James announced her office would also  investigate Trump. A Vance-James combination could spell real trouble for Trump. She has a reputation for aggressively prosecuting political figures.  

The prospect of indictments against Trump’s closest business associates, and even the former president himself, raised the prospect of what a criminal trial of a former chief executive would look and feel like. That inspired differing responses from the three of us.

 

Woodson: Action and the Matter of Process

Throughout his presidency Trump demonstrated 

repeatedly that he aspired to be an autocrat.

Congress refused to act. 

                         

Losing the presidential election Trump incited an 

insurrection. Congress refused to act. 

Trump is a clear and present danger to democracy. But Republicans continue to follow him. It now appears that someone will act.

                                      

Donald Trump’s criminal misdeeds may finally undo him. Prosecutors in New York seem to think they have enough evidence to criminally indict and convict him. 

In prosecuting their cases, they must be careful  not

to deny Trump – or even appear to deny him - due process of law and the presumption of innocence until proven guilty.

Due process and the presumption of innocence  are

fundamental rules of law in our democracy. Trump and his supporters will surely holler “foul” at the slightest provocation. The criminal proceedings must be meticulous, solid, and above reproach.

The prosecutors must demonstrate that they believe in the rule of law and not violate it in their eagerness to secure a conviction. If Trump behaved in any way in his business life as he has in public life, there will be plenty of evidence with which to criminally convict.

The prosecutors might want to take a page out  of

the playbook of Jerry Blackwell and Steve Schleicher, prosecutors in the Derek Chauvin trial. Let meticulous preparation and the rule of law be the order of the day.

 

Henry: Smoke and Fire

How does the American justice system handle a criminal defendant with 70 million loyal followers

who believe everything he says? That’s  the key question for me in contemplating the criminal probe of the former president now proceeding in New York. Since Trump’s 2016 campaign began a plethora of potentially criminal allegations swirled

around him – possible tax evasion, corruption in his foundation, alleged payoffs to porn stars with whom he supposedly had affairs, and

more. The list grows through the reporting on the current criminal probe. With as much smoke wafting in the air, isn’t there fire in the vicinity?

Then there’s the matter of Trump’s associates. The names have become familiar – Michael Cohen, Paul Manafort, Roger Stone, Michael Flynn, et al.  All have incurred the wrath of the law because of things that involve Trump. Could the boss have been innocent in each and every one of their cases?  

But, Trump was president and that makes this situation unique. Yes, Richard Nixon had a collection of criminals around him, but Gerald Ford pardoned Nixon. He was never prosecuted for his crimes. Many of his associates went to jail, but Nixon went about his business.  Joe Biden certainly isn’t giving Trump a pardon, so the system must deal with him, with the backdrop of his widespread public support. That’s new for America.    

                       

Rob: A Meaningful Moment?

As much as my Democratic heart flutters at the

thought of Donald Trump in an orange jump suit and the Secret Service figuring out the logistics of protecting a former president in the Big House, that prospect isn’t what intrigues

me most about Trump’s legal troubles. Whatever possibility exists he might be called to account for the crimes he may have committed is one of the best things that could happen to the United States.

As a lawyer, I agree about letting the process play out, trusting in the rule of law, and all that business. Trump enjoys the same presumption of innocence as any criminal defendant.  Having said that, the country’s legal system would benefit from tangible evidence that the law applies to everyone. Trump

avoided indictment in connection with the Mueller probe into Russian interference in the 2016 election because of the Justice Department prohibition on prosecuting a sitting president. We were told Trump remained subject to the law once he left office. Now, apparently, we’ll find out if that’s really true. It would do the country good to know that it is.

Politically, Trump has caused all kinds of mischief since he left office. He controls congressional Republicans who have taken unfortunate actions at

his behest, like blocking a commission that would have investigated the January 6 insurrection. Trump recently claimed he’ll soon be “reinstated” into the presidency, a ludicrous proposition. If nothing else, criminal indictments should occupy Trump’s attention, leaving him less time for such nonsense. Our politics will benefit greatly from such a respite.        

GOODBYE TO THE TRUMP YEARS: A WAKE-UP CALL FOR DEMOCRACY

We have learned from history that Fascists can reach high office via elections. When they do, the first step they attempt is to undermine the authority of competing power centers, including parliament or in America, Congress.

                                                         -Madeleine Albright (Fascism: A Warning p. 234)

We haven’t written enough about preserving American democracy. The January 6 occupation of the U.S. Capitol by a mob inspired by President Donald Trump brought home to us why we must write about that subject regularly, beginning now.

Some might think Trump’s imminent exit from the White House and installation of a new administration will assuage concerns about threats to democratic values and institutions. On the contrary, we think the end

of the Trump presidency presents a perfect opportunity for examining what happened the last four years and what Americans must do that will ensure democracy remains our form of government.

 

A Tortured Four Years

We think Trump has been wrong about environmental protection, voting rights, immigration, criminal justice, taxes, and many other policies. That’s not what we mean by a “tortured four years.” No, we refer to his assaults on democracy as a governing ideology.

His attack on democracy as our basic form of government constitutes the greatest sin of his time in office. He has put supporting evidence for that claim on constant display. 

                       

The January 6 insurrection, spurred by an incendiary speech in which he urged that thousands march on the capitol in support of his bogus voter fraud claims while Congress tabulated the Electoral College votes, stands as exhibit “A.” The resulting 

carnage, thanks largely to a massive security failure, left at least five people dead, the capitol building ransacked, and a huge black mark on American democracy and its standing in the world.  Comparisons to December 7, 1941, and September 11, 2001, as dark days in the nation’s history weren’t inappropriate. There’s lots more:      

·     The Phone Call. On January 2, Trump called

the Georgia Secretary of State asking that he “find” votes that would overturn President–elect Biden’s victory there. He asked that election officials “recalculate” the returns and give him the votes that would reverse the outcome in the Peach State. Search as many did for a benign explanation or interpretation of Trump’s words, none appeared. It was extortion of the kind more commonly associated with mob bosses and Mafia dons. First readings of federal and Georgia election statutes suggested he crossed the line into criminal misconduct; 

·     Misusing Congress. To avoid the peaceful transfer of power his defeat requires, Trump enticed Republican members of the House and Senate to challenge duly certified electors, leading to the January 6 riot. He challenged votes in Milwaukee, Philadelphia, and Atlanta, overwhelmingly black cities, in a blatant attempt at marginalizing the black

vote standing  between him and his effort to turn America into an autocracy. This largely unprecedented action followed a string of over 50 defeats in lawsuits he brought aimed at throwing out votes or advancing unsupported voter fraud claims;

·     Misusing the pardon power. His granting of

pardons and commutations to cronies, family members, and business associates who have committed crimes against the United States demonstrates his contempt for democracy, democratic institutions, democratic norms, and the rule of law;

·     Attacking the judiciary. Trump’s initial assault on a federal judge of Mexican descent began an attempt to drive a wedge between Latinos and other Americans while diminishing respect for the judiciary;

·     Denigrating America’s world standing. By reducing our commitment to NATO,

Trump hoped he could free the United States from democratic norms NATO members must follow, thereby making easier alliances with autocrats;

·     Kowtowing to Vladimir Putin. Trump would not criticize Russian interference in the 2016 election and he took Putin’s side against the

findings of U.S. intelligence agencies that Russia meddled in that election. When reports surfaced of Putin putting bounties on U.S. soldiers, Trump said nothing. When cyber experts uncovered a massive computer hacking almost certainly carried out by the Russians, Trump, without evidence, blamed it on China;

· Ukraine. Trump’s refusal to release appropriated funds for Ukraine’s defense

against Russian aggression unless the Ukrainians helped him dig up dirt on his domestic political opponents evidenced his autocratic preferences and disregard for the American constitution;

·     Personalizing the Justice Department. Trump’s conversion of the Attorney General from the people’s lawyer to his personal counsel flagrantly abused his power and undermined the rule of law; and

·     Misuse of the military. By ordering that U.S. troops clear peaceful protesters from Lafayette Park in Washington for his photo op, Trump demonstrated the true nature of his autocratic tendencies.   

 

Lessons

Listing Trump’s bad acts represents only a first step. We remain far from knowing all we should about his assault on democracy. As we learn more, we’ll say more about what happened and about what we should do.

We began with former State Secretary Madeline Albright’s observation abouthow fascists acquire power, even in democratic systems. We turn to her book again as we close:

When we awaken each morning, we see around the globe what appears to be Fascism’s early stirrings: the discrediting of mainstream politicians, the emergence of leaders who seek to divide rather than to unite, the pursuit of political victory at all costs, and the invocation of national greatness by people who seem to possess only a warped concept of what greatness means. (p. 118)

We think Secretary Albright’s warning is for us, as in U.S.  

TWO WEEKS OUT: WHERE THE 2020 BIDEN-TRUMP PRESIDENTIAL RACE STANDS

 

                                   WEEKS

Let’s start with three basic truths about the 2020 presidential election two weeks from the day the vote counting starts (millions are voting early and have been for some time):

1.                        Democratic nominee Joe Biden enjoys a solid lead in the polls;

2.                        incumbent Republican President Donald Trump could win, but his path seemingly narrows every day; and

3.                        the factors that swung the 2016 election to Trump have not surfaced so far.

This is the universe in which both nervous Democrats and hopeful Republicans live as the race comes down the home stretch.

Biden’s Lead

As of October 20, two weeks before election day:

*Biden leads in fivethirtyeight.com’s national polling average by more than ten points and just under nine in the Real Clear Politics polling average.

*In the three decisive battleground states Trump won in 2016 by a total of 77,000 votes, Biden leads by five points or more in the 538 and RCP polling averages for Pennsylvania, by six in Wisconsin, and by seven in Michigan.

*Biden holds narrower leads in other battleground states Trump won in 2016 including Georgia, Florida, North Carolina, and Arizona.

*Three states – Iowa, Texas, and Ohio – are essentially tied. Trump won them all last time and he likely has no path to a second term without at least two of them.

Should Biden hold his leads in Pennsylvania, Michigan, and Wisconsin and win the states Hillary Clinton carried four years ago, he need not win any of the toss up states (Iowa, Texas, Ohio) or other battleground states. Right now, Trump doesn’t lead in any state Clinton won four years ago.

 

Trump Could Still Win

Nate Silver’s 538 forecast, based on computer modeling  using polls, gives Trump a 12%

chance of winning. On the eve of the election in 2016, with Clinton leading in the polls, that forecast gave Trump a 35% chance of winning. Trump still enjoys a structural advantage in the electoral college because of small western and southern states he seemingly can’t lose. If he could flip a few states where Biden now leads narrowly, he possibly could pair those with states like Arkansas, Wyoming, and the Dakotas where he’s likely to win by more than 15 points and perhaps cobble together an electoral college majority.

Trump also draws encouragement from the idea of the so-called hidden Trump vote. Supposedly a sizeable number of Trump supporters don’t reveal themselves to pollsters, but will turn out on election day and put him back in the White House.

Evidence that a hidden Trump vote exists is tenuous at best and results from myths that have sprung up about the 2016 election, especially the idea that the polls got  

everything wrong. In truth, the 2016 national polls forecast the popular vote accurately. Clinton held a three-point lead going into election day and won by about 2.3 points, well within the margin of error for any poll.

As Clinton pointed out in her book What Happened, not  many polls were in the field in

the final days of the campaign in states like Wisconsin. They didn’t measure there the drop in her support, seen elsewhere and likely caused by FBI Director James Comey’s reopening of the e-mail investigation.   

Biden’s lead has remained stable. It has endured since the spring and has grown, in part, because of Trump’s abysmal handling of the pandemic. Relying on a hidden vote seems like a fantasy now, but only counting the ballots can tell us if such a thing exists.

Maybe the Calvary Isn’t Coming

Whatever Clinton’s complicity in her loss, and we’ve been unsparing in our criticism of her,

the things that did her in haven’t happened to Biden to this point. First, there’s no Comey on the horizon. Trump’s efforts at creating an “October surprise” through investigations into Biden and his son Hunter, Clinton, and former President Barack Obama have, so far, fallen flat.

More important, demographic factors increasingly work against Trump. Take senior

voters. Trump won them, 52-45 in 2016, but some recent polling shows Biden leading among that group. Trump’s gender gap has only gotten bigger. He lost women, 54-41 2016, and is losing them now, 55-39. He’s not winning men by as much as he did last time. In 2016, Trump carried the male vote, 52-41, but right now leads only 49-45.

Turnout among people of color could decide the election. A decrease in black turnout for Democrats, when compared to 2008 and 2012, hurt Clinton in those critical upper mid-western states. She won almost 90% of the African American vote, 66% of Hispanics, and 65% of the Asian-American vote. Biden seems headed in the same direction, but turnout remains the issue. Early indications suggest a bigger turnout among people of color, though only the counting will tell us for sure.

Long line of African American voters during days of early voting Oct2020

All of this occurs with Republican voter suppression efforts as a backdrop. Trump’s railings about non-existent fraud with mail-in voting also complicate the picture. The country may have to work through all that after election day.

 We should keep in mind the admonition of the great American philosopher Yogi Berra that the game “ain’t over ‘til it’s over.” Fair enough, but Trump has only a few outs left, the game isn’t tied, and he doesn’t have runners on base.            

TRUMP AND ‘DISINFECTANTS’: CASTING BLAME ON TRUMP VOTERS

President Trump’s recent suggestion that Americans might inject themselves with

disinfectants as a way of treating Covid-19 sparked an intense debate among the three of us about who’s to blame for the presence in office of such a president. Rob throws everyone who voted for him under the bus, arguing that “respectable” people who voted for Trump in 2016 now

bear responsibility for his dangerous conduct. Henry and Woodson take a more restrained position, concluding that not everyone who voted for Trump foresaw the extremes to which he has gone. They say those who sat out the 2016 election bear responsibility too. Below, we hash out the disagreement.

DO ONLY TRUMP VOTERS OWN THIS?

After Trump made his outrageous suggestion that injections of disinfectants like bleach or

isopropyl alcohol inside the human body

might combat the virus, many in the medical and scientific community and manufacturers of disinfectant products reacted with horror. They had good reasons. Americans desiring Covid-19 cures flooded health hotlines and emergency management agencies countrywide with calls about such treatments. The product manufacturers warned of organ damage that could result from injecting or ingesting disinfectants. Doctors were aghast and shouted to whoever would listen, “No, don’t do it!”

As industry leaders, doctors, and public health officials scrambled to warn people against the president’s advice, Rob thinks it significant that some of them must have voted for him. He observes, “Surely, some of the doctors, nurses, public health officials, and industry executives who loudly condemned Trump for his potentially disastrous suggestion, voted for him.” Neither Henry nor Woodson find that particularly revelatory.

What Did Voters Know and When Did They Know it?

The three of us agree it’s now widely understood Trump doesn’t care much for science. The Union of Concerned Scientists, for example, has published a 100 item list of Trump administration attacks on science. That’s bad enough, but we did receive advance warning. Before the 2016 election, we got at least the following indications of Trump’s scientific illiteracy or hypocrisy and his affinity for off-the-wall theories:

1.  Windmills cause cancer and kill birds.

Trump started pushing this falsehood before the election in making clear he wouldn’t promote wind power as a fossil fuels alternative; 

 

2.  Climate change is a hoax. Despite the scientific community consensus that human activity causes

global warming, Trump insisted before the election, and still does, his political enemies made up the climate crisis and the science isn’t real;

3.  In a rating by Scientific American magazine of the general election candidates, including third party entrants, Trump came in last on his understanding of scientific endeavors.

These facts have significant consequences.

They demonstrate a dangerous proclivity for buying into conspiracy theories that float through the culture, particularly on the internet, without scientific basis and that could hurt individuals or nations.

Even these facts, Henry and Woodson argue, didn’t necessarily predict Trump would suggest a wild idea like injecting disinfectants. Rob says, “That sounds like a degree v. kind argument. Nobody would have thought Trump would take his craziness to the degree he has. I prefer thinking anyone capable of believing the kinds of things Trump said before the election, if given an exigent situation and a big enough microphone, might say anything.”

                                                 

Woodson and Henry note that Trump never held public office before, so he had no policy record voters could easily examine.

Unlike the three of us, the average American doesn’t spend hours each week considering the nuances of candidate records and public policy. They believe Rob holds the electorate to too high a standard.

         

How Does a Country Get Such a Leader?

As Rob thought about the dangers inherent in Trump’s injection suggestion, he decided condemning him alone isn’t enough. “True,

the electorate put him in the White House, fair and square. But, don’t the people who voted for him bear some of the responsibility for having someone like him in office, given what we knew beforehand?  Now that his conduct directly threatens lives, can we excuse those votes, especially by people who should know better – people like those in health care now crying out that Americans shouldn’t follow his reckless ramblings?”

Rob continues, “I don’t have survey data, but the reasons doctors and other medical people might have voted for Trump aren’t hard to fathom - probably the same reasons others did - tax cuts, limits on immigration,

fears of disfavored ethnic groups, appointment of anti-choice judges, reigning in the Environmental Protection Agency, and other federal regulatory bodies, unrestrained Hillary Clinton phobia. I assume there are others. Were any of those reasons worth this?

“I understand the harshness of the view I’ve expressed. I have thrown otherwise good

people under the bus before. Elections have consequences. I can’t give Trump voters a pass, especially not after this latest demonstration of insanity.”

While Henry and Woodson share Rob’s view that Trump has demonstrated his unfitness for office, they won’t say everyone who voted for him could have foreseen this. Who could have known the election would produce a president seemingly committed only to his own selfish political quest, devoid

 

of logic, humanitarian consideration, or enlightened principles? Nor are they willing to single out doctors and other medical professionals for special condemnation. They believe many who stayed home or voted for Trump in 2016 will vote for Joe Biden in 2020 because Joe Biden is no Hillary Clinton. Many former Trump voters will no longer have reason for seeing Trump as the answer to the country’s problems.