Thursday, August 3, 2023. Annette’s News Roundup.
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A Roundup devoted to special counsel, Jack Smith’s indictment of Donald J. Trump.
conspiring to defraud the United States,
conspiring to disenfranchise voters, and
conspiring and attempting to obstruct an official proceeding.
“Forget hush money payments to porn stars hidden as business expenses. Forget showing off classified documents about Iran attack plans to visitors, and then ordering the pool guy to erase the security tapes revealing that he was still holding onto documents that he had promised to return. Forget even corrupt attempts to interfere with election results in Georgia in 2020.
The federal indictment just handed down by special counsel Jack Smith is not only the most important indictment by far of former President Donald Trump. It is perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.” (Slate.”)
The special counsel spoke for 2 minutes 44 seconds on Tuesday night. 👇
(You can read the full indictment, annotated by New York Times reporters, here.)
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Here are some commentaries on the indictment.
Police clash with Trump supporters who breached security and entered the Capitol building on Jan. 6, 2021. Photographer: Mostafa Bassim/Anadolu Agency/Getty Images.
Letters from an American, by Heather Cox Richardson. August 1, 2023.
Today a grand jury in Washington, D.C, indicted former president Donald J. Trump for conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding. The charges stemmed from Trump’s attempt to overturn the results of the 2020 election. A grand jury is made up of 23 ordinary citizens who weigh evidence of criminal activity and produce an indictment if 12 or more of them vote in favor.
The grand jury indicted Trump for “conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted and certified by the government; “conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified”; and “conspiracy against the right to vote and to have one’s vote counted.”
“Each of these conspiracies,” the indictment reads, “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.” “This federal government function…is foundational to the United States’ democratic process, and until 2021, had operated in a peaceful and orderly manner for more than 130 years.”
As Rachel Weiner pointed out in the Washington Post, “conspiracies don’t need to be successful to be criminal, and perpetrators can be held responsible if they join the conspiracy at any stage.”
The indictment referred to six co-conspirators without identifying them by name, but the details included about them suggest that Co-Conspirator 1 is Trump lawyer Rudy Giuliani; Co-Conspirator 2 is lawyer John Eastman, who came up with the plan for then–vice president Mike Pence to use his ceremonial role of counting the electoral votes to throw the election to Trump; Co-Conspirator 3 is Trump lawyer Sidney Powell; Co-Conspirator 4 is Jeffrey Clark, a Justice Department lawyer whom Trump tried to push into the role of attorney general so he could lie that there had been election fraud; Co-Conspirator 5 appears to be Kenneth Chesebro, a Trump attorney behind the idea of the false electors.
The identity of Co-Conspirator 6, a political consultant, is unclear.
On The Reid Out tonight, law professor Neal Katyal suggested that the six were not indicted because the Justice Department “doesn’t want the trial of the other six to be bundled up with this and slow this down.” Los Angeles Times senior legal affairs columnist Harry Litman concluded that the absence of Trump’s White House chief of staff, Mark Meadows, from the indictment indicates he’s cooperating with the Department of Justice. Meadows had a ringside seat to the last days of the Trump administration.
The indictment is what’s known as a “speaking indictment,” one that explains the alleged crimes to the public. It undercuts Trump loyalists’ insistence that the Department of Justice is trying to criminalize Trump’s free speech by laying out that Trump did indeed have a right to challenge the election—which he did, and lost. He also had a first-amendment right to lie about the election.
What he did not have was a right to use “unlawful means of discounting legitimate votes and subverting the election results.”
The indictment begins by settling out that Trump “lost the 2020 presidential election” but that “despite having lost, [Trump] was determined to remain in power.” So he lied that he had actually won. “These claims were false, and [Trump] knew they were false.” More than 15 pages of the 45-page indictment establish that Trump knew the allegations he was making about election fraud were lies.
In one memorable December exchange, a senior campaign advisor wrote in an email, “When our research and campaign legal team can’t back up any of the claims made by our Elite Strike Force Legal Team, you can see why we’re 0–32 on our cases. I’ll obviously hustle to help on all fronts, but it’s tough to own any of this when it’s all just conspiracy sh*t beamed down from the mothership.”
The Trump team used lies about the election to justify organizing fraudulent slates of electors in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Allegedly with the help of Republican National Committee chair Ronna McDaniel, they attempted to have the legitimate electors that accurately reflected the voters’ choice of Biden replaced with fraudulent ones that claimed Trump had won in their states, first by convincing state legislators they had the power to make the switch, and then by convincing Vice President Mike Pence he could choose the Trump electors.
When Pence would not fraudulently alter the election results, Trump whipped up the crowd he had gathered in Washington, D.C., against Pence and then, according to the indictment, “attempted to exploit the violence and chaos at the Capitol” to overturn the election results. “As violence ensued,” the indictment reads, Trump and his co-conspirators “explained the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.” On the evening of January 6, 2021, the indictment alleges, Trump and Co-Conspirator 1 called seven senators and one representative and asked them to delay the certification of Biden’s election.
While they were doing so, White House counsel Pat Cipollone called Trump “to ask him to withdraw any objections and allow the certification. The Defendant refused.” Just before midnight, Co-Conspirator 2 emailed Pence’s lawyer, once again begging the vice president to “violate the law and seek further delay of the certification.”
While Trump loyalists are trying to spin the indictment as the weaponization of the Department of Justice against Trump, legal analyst George Conway noted on CNN tonight: "All the evidence comes from Republicans. If you go through this indictment and you annotate the paragraphs to figure out who are the witnesses the [special counsel] would use to prove particular points, they're all Republicans. Those are the people who were having the discussions, telling [Trump], 'You lost.'”
Trump will be arraigned at 4:00 p.m. Eastern time on August 3. The case of the United States of America v. Donald J. Trump has been randomly assigned to Judge Tanya S. Chutkan, appointed by President Obama in 2014 and confirmed 95–0 in the Senate. Chutkan has presided over dozens of cases concerning the defendants who participated in the events of January 6, 2021, and has been vocal during sentencing about the stakes of that event. In December 2021 she said: “It has to be made clear that trying to stop the peaceful transition of power, assaulting law enforcement, is going to be met with certain punishment.”
“The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy,” Special Counsel Jack Smith said in his statement about the indictment.
“The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.”
The prosecution of former president Trump for trying to destroy those institutions and principles, including our right to consent to the government under which we live—a right the Founders articulated in the Declaration of Independence—should deter others from trying to do the same. Moreover, it will defend the rights of the victims—those who gave their lives as well as all of us whose votes were attacked—by establishing the truth in place of lies. That realistic view should enable us to recommit to the principles on which we want our nation to rest.
Such a prosecution will reaffirm the institutions of democracy. Donald Trump tried to destroy “the free exercise and enjoyment of a right and privilege secured…by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.” Such an effort must be addressed, and doing it within the parameters of our legal system should reestablish the very institutions Trump loyalists are trying to undermine.
As former House speaker Nancy Pelosi (D-CA) said this evening: “Like every criminal defendant, the former President is innocent until proven guilty…. The charges…must play out through the legal process, peacefully and without any outside interference…. As this case proceeds through the courts, justice must be done according to the facts and the law.”
4 things that stand out from the Trump Jan. 6 indictment.
Below are some takeaways from this latest, arguably most significant indictment.
1. The case that Trump knew the ‘big lie’ was a lie
It’s a question that has long stalked Trump: whether he knew that the false things he said were false. It’s also a threshold question when it comes to the case ahead, given that Trump’s defense will apparently rely on the idea that he somehow believed his claims about a stolen election and thus didn’t act corruptly.
Smith is unambiguous: Trump knew better.
“The Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” the indictment says. “These claims were false, and the Defendant knew that they were false.”
Smith cites examples — many previously known — of those around Trump directly informing him that his claims were false and his schemes dubious. They included Vice President Mike Pence, top Justice Department officials, top White House attorneys and campaign staff, key state legislators and officials, and state and federal courts.
The indictment cites examples of Trump’s being informed that specific claims were false and then proceeding to lodge them anyway. Smith makes a point of isolating a single claim from each of five key states — Arizona, Georgia, Michigan, Nevada and Pennsylvania — each time punctuating the example by saying that Trump “repeated his knowingly false claim” on Jan. 6 itself.
One such example: Both Trump campaign manager Bill Stepien and Republican Arizona state House Speaker Rusty Bowers told Trump in November 2020 that there weren’t tens of thousands of noncitizens who voted in Arizona. But Trump made this claim on Jan. 6 anyway, nearly two months after Stepien tried to disabuse him of it.
While the House select committee on Jan. 6 presented much of the evidence last year, the indictment does break some ground in suggesting that Trump knew this was corrupt. It cites a vivid scene from Jan. 1, 2021, in which Pence resisted Trump’s renewed appeal to overturn the election in Congress on Jan. 6, with Trump allegedly telling Pence, “You’re too honest.”
Trump is also described as acknowledging that claims about voting machines by Co-Conspirator 3 (apparently Sidney Powell), which he would echo repeatedly, were unsupported. (We learned from Trump spokeswoman Hope Hicks’s Jan. 6 committee testimony that Trump said Powell sounded “crazy,” but not necessarily that he acknowledged this theory was baseless.)
The defense that’s left for Trump is that he was told all of this but disregarded it or thought he knew better, which is apparently what his lawyers will suggest.
“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” lead Trump lawyer John Lauro said on Fox News on Tuesday night.
2. The co-conspirators and the case for violence
The indictment Smith unveiled Tuesday appears intended to isolate Trump, perhaps in the service of emphasizing that he was the central figure in all of this and not just someone strung along by lawyers and advisers. (An eye toward a speedier trial might also have been a reason for indicting Trump solo.)
But that doesn’t mean others are out of the woods. After all, conspiracies involve multiple people.
Six unnamed co-conspirators figure into the indictment’s narrative. We can identify five based on the context: Trump lawyers Rudy Giuliani, John Eastman and Powell, along with former Justice Department official (and Trump’s would-be acting attorney general) Jeffrey Clark and Trump-aligned attorney Kenneth Chesebro. The sixth co-conspirator, a political consultant, isn’t so clearly identifiable.
Giuliani is invoked the most — more than 40 times — and Eastman is cast as instrumental to what the indictment labels the “fraudulent electors” scheme.
Both Eastman and Clark also feature in two scenes that Smith included alluding to the prospect of violence.
In one, a Trump adviser cites the possibility of Eastman’s strategy to have Pence help overturn the election on Jan. 6 causing “riots in the streets.” Co-conspirator 2 (Eastman) responds by saying violence is at times necessary for the republic.
That instance was previously reported, but the other was not: A White House lawyer, according to the indictment, said there would be “riots in every major city in the United States” if Trump stayed in office. Co-Conspirator 4 (Clark) responded by saying, “Well … that’s why there’s an Insurrection Act.” (The Insurrection Act empowers the president to deploy the military to put down civil unrest in certain circumstances.)
Smith seems to include these scenes as evidence that the tactics were extreme and even that violence was foreseeable, but that Trump and his allies pressed on anyway.
As for whether others might be charged, Smith said in a brief statement Tuesday night, “Our investigation of other individuals continues.”
3. Any pretext in a storm
One thing that comes through in the indictment is how so much of Trump’s and his alleged co-conspirators’ actions involved creating pretexts and essentially taking advantage of other people, in Smith’s telling.
That applies particularly to the alternate electors, some of whom have now been indicted by a state prosecutor.
The Trump campaign publicly pitched the alternate electors as a contingency in the event states overturned their own results — the idea being that they would be used only in that circumstance. But Smith says the effort, from its early days, was really about creating the illusion of uncertainty on Jan. 6 regardless of what states did.
“Under the plan, the submission of these fraudulent slates would create a fake controversy at the certification proceeding” on Jan. 6, the indictment says.
Smith cites how, on the eve of the Dec. 14 deadline for electors to be declared, Trump aides declined to put out a statement about the move to advance alternate slates because none of them could “stand by it.” One top official called it “a crazy play so I don’t know who wants to put their name on it.” An adviser labeled it “certifying illegal votes.”
At another point, a campaign aide worried about how the Pennsylvania alternate electors wanted to say that they were duly elected only if the results in their states were overturned. The aide said, “If it gets out we changed the language for PA it could snowball” into other states.
Only two of seven slates of fake electors wound up offering such a qualifier; those in Michigan, who didn’t, were recently indicted.
There is evidence that some involved in the fake elector scheme worried that this effort would break the law. In the days leading up to Dec. 14, Smith notes in the indictment, Co-Conspirator 5 (Chesebro) said that Co-Conspirator 1 (Giuliani) had learned that declaring alternate electors in Arizona without a pending court case could “appear treasonous.”
Smith also notes that such a lawsuit was filed in New Mexico just six minutes before the deadline for electors on Dec. 14. He labels it “a pretext so that there was pending litigation there at the time the fraudulent electors voted.”
Smith calls the alternate elector plot a “sham” — a word he also uses for the voter fraud investigations Trump pushed.
Smith’s repeated references to Trump’s saying Powell sounded “crazy” certainly fit the idea that Trump was using her to build a pretext.
And rather than entertain the idea that Trump merely urged protesters to go to the Capitol to protest, as Trump claims, Smith says Trump “directed them to the Capitol to obstruct the certification proceedings.”
The language is telling; it suggests that the disruption was the purpose, not an unintentional byproduct.
All of this points to Smith’s arguing that these schemes were engineered to try to overturn the election on false pretenses, using whatever blunt instrument was available.
4. A Muted GOP Response.
The GOP’s reactions to Trump’s legal problems is seemingly baked in at this point; Republicans overwhelmingly claim he’s being persecuted or treated differently from Democrats, without engaging on the merits of the allegations.
But Trump’s actions related to Jan. 6 and his false voter fraud claims did draw significant GOP criticism after the insurrection. And there were signs Tuesday night of some reluctance to defend him.
Pence, who is running against Trump for the 2024 GOP presidential nomination, has previously alluded to the idea of a two-tiered system of justice. But his post-indictment statement made no mention of that, instead emphasizing his view that Trump’s plan for him violated the Constitution.
“Today’s indictment serves as an important reminder: anyone who puts himself over the Constitution should never be President of the United States,” Pence tweeted. Pence added that he will offer more thoughts when he can review the indictment.
Florida Gov. Ron DeSantis (R), Trump’s top 2024 primary opponent, offered a thoroughly muted response. He broadly cited the supposed “weaponization” of the government, but otherwise said he was reviewing the indictment and talked merely about how such cases should perhaps not be tried in Washington, D.C.
Several Republicans did point to the idea of unequal justice, including fellow 2024 contender Sen. Tim Scott (S.C.) and Trump loyalists such as Rep. Elise Stefanik (N.Y.), Rep. Marjorie Taylor Greene (Ga.) and Sen. Marsha Blackburn (Tenn.). But the reaction from the GOP was generally muted; few put out statements or social media posts at all.
The tendency of the GOP is to fall in line; Trump’s numerous controversies have reinforced that that is the easy and most politically expedient play, particularly since he is the strong favorite to lead the Republican ticket in 2024.
But the strength with which Republicans actually defend him can also be telling. And Tuesday night, the response wasn’t that strong — particularly compared to Trump comparing his prosecution to “Nazi Germany.”
(To read Aaron Blake’s full comments, click here).
What Judge will preside?
Judge Tanya Chutkan is a tough Trump critic, toughest Jan. 6 sentencer.
With U.S. District Judge Tanya S. Chutkan as the trial judge overseeing his case in Washington, Donald Trump’s legal troubles in the Jan. 6, 2021, Capitol attack come near full circle.
Trump’s federal criminal indictment on charges of attempting to subvert the results of the 2020 presidential election was randomly assigned Tuesday to Chutkan, 61, who nearly two years ago became one of the first federal judges in D.C. to reject the former president’s efforts to use executive privilege to withhold White House communications from Jan. 6 investigators, in that instance from the House select committee investigating the Capitol riot.
In her Trump documents opinion on Nov. 9, 2021, Chutkan ruled that Congress had a strong public interest in obtaining White House communications and other records that could shed light on the violent attack by a mob of Trump supporters who injured dozens of police, ransacked offices and forced the evacuation of lawmakers meeting to confirm the results of the 2020 election. Chutkan noted that President Biden had waived executive privilege, overcoming his predecessor’s attempt to invoke the confidentiality of presidential communications, a ruling affirmed by a federal appeals court and left undisturbed by the U.S. Supreme Court.
“At bottom, this is a dispute between a former and incumbent President,” Chutkan wrote. “And the Supreme Court has already made clear that in such circumstances, the incumbent’s view is accorded greater weight.”
Chutkan agreed with the House that the matter was of “unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them” and could help lead to legislation “to prevent such events from ever occurring again.”
About 13 months later, the House committee referred Trump to the Justice Department for criminal charges. And two and a half years after the Jan. 6 attack, a grand jury indicted Trump on Tuesday, charging him with trying to overturn the results of the 2020 election.
Trump is scheduled to make his first appearance Thursday before a magistrate judge in U.S. District Court in Washington, and after that, Chutkan will take over the case, facing enormous scrutiny over the high-profile case.
Chutkan was appointed to the U.S. bench in 2014 by President Barack Obama and was one of the first public defenders appointed to the federal trial court in Washington. A trained dancer raised in Kingston, Jamaica, Chutkan graduated from George Washington University and the University of Pennsylvania Law School before working in private practice with two Washington firms and serving 11 years with the D.C. Public Defender Service. She then joined the Boies Schiller Flexner law firm, where as partner she was a white-collar defense specialist focusing on complex antitrust class-action cases.
“For a lot of people, I seem to check a lot of boxes: immigrant, woman, Black, Asian. Your qualifications are always going to be subject to criticism and you have to develop a thick skin,” Chutkan was quoted as saying in a February 2022 profile posted by the federal judiciary.
The featured speaker at an African American History Month event hosted by the judiciary’s Defender Services Office, Chutkan cited “the dignity and the brilliance” of former federal judge and NAACP Legal Defense Fund litigator Constance Baker Motley and her predecessors as a model. “They put their lives on the line every time they did their jobs and had to put up with far more than I have,” she said.
Chutkan has been the toughest sentencing judge on the D.C. federal court for Jan. 6 defendants, according to a Washington Post database. Through mid-June, Chutkan sentenced every one of the 31 defendants to have come before her to at least some jail or prison time. She has exceeded prosecutors’ sentencing recommendations nine times and granted them 14 times, while court-wide, judges have sentenced below government recommendation about 80 percent of the time.
“It has to be made clear that trying to violently overthrow the government, trying to stop the peaceful transition of power and assaulting law enforcement officers in that effort, is going to be met with absolutely certain punishment,” Chutkan has explained from the bench.
Alluding to Trump’s role in the events, Chutkan said at another defendant’s sentencing: He “did not go to the United States Capitol out of any love for our country. … He went for one man.”
Chutkan said during the federal defender event that she drew inspiration from young people.
“Young people inspire me in their openness, in their tolerance, and in their desire to fight injustice,” she was quoted as saying. “I can’t let them down. I have to be an example to them.” (Spencer Hsu and Tom Jackman, Washington Post).
What is with the Fitch ratings of American Treasuries?
The Fitch downgrade came an hour after the indictment.
Fitch Ratings warned that political polarization was eroding confidence in U.S. fiscal policy.
Fitch’s Warning About America’s Fiscal Future
A downgrade of the nation’s credit rating admonished Washington for persistent political fighting over federal spending. But the move drew sharp criticism.
The eventual cost of a U.S. downgrade
Markets are pointing down this morning after Fitch Ratings downgraded the United States’ AAA long-term credit rating, citing the “steady deterioration in standards of governance over the last 20 years” that have eroded confidence in fiscal management.
It’s unlikely that the move — only the second downgrade in American history — will dent investor appetite for Treasury notes. But the decision is another sign that Wall Street is worried about political chaos, including brinkmanship over the debt limit that is becoming entrenched in Washington.
Fitch cited “repeated debt-limit political standoffs and last-minute resolutions” in cutting the rating to AA+. The move came two months after Washington narrowly avoided a U.S. default, following a prolonged argument over the debt ceiling. The agency also cited rising federal deficits and increased spending on Social Security and Medicare.
Yet the U.S. economy is performing strongly, with many analysts expecting the country to avoid a recession as it recovers from rapid inflation and the highest interest rates in decades. (That said, some on Wall Street remain skeptical that the country is headed for a so-called soft landing.)
Fitch’s own model shows the U.S. economy deteriorating during the Trump administration and recovering under President Biden.
The Biden administration and others pushed back. Treasury Secretary Janet Yellen called the downgrade “arbitrary,” noting that Fitch had shown U.S. governance deteriorating as far back as 2018 but hadn’t moved until now. “The American economy is fundamentally strong,” she added.
Paul Krugman, the Times Opinion columnist and Nobel laureate, said the move was “bizarre.” And Larry Summers, the former Treasury secretary, told Bloomberg, “I can’t imagine any serious credit analyst is going to give this weight.”
What comes next? Some investors who are required to put money only in AAA-rated securities may need to look elsewhere — though the number of other countries that still have the top rating is dwindling — potentially nudging up interest rates. But most economists believe that what the Fed does at its next rate-setting meeting will have a bigger effect on U.S. borrowing costs.
The wider significance is the growing concern about political polarization, particularly over federal spending. The repeated standoffs in Washington threaten to cause more impasse over the debt limit and, potentially as soon as this fall, another government shutdown.
Future downgrades by Fitch or other agencies could eventually threaten America’s fiscal health. But it’s unclear that this one will change the thinking in Washington: “Our base case expectation is that Fitch will be pilloried by most members of Congress,” Henrietta Treyz, director of macroeconomic policy research at Veda Partners, told The Times. (The DealBook, NY Times)
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Donald Trump’s 2024 presidential campaign compared the federal prosecution of the former president to the tactics used by the German Nazi regime.
“The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union, and other authoritarian, dictatorial regimes,” the Trump campaign said in a statement Tuesday in response to charges unsealed by the Department of Justice earlier in the day. The indictment followed a more than year-long investigation of Trump’s efforts to overturn the 2020 election. (Source. The Forward).
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Trump has been summoned to appear at 4 p.m. ET today(Thursday)before Magistrate Judge Moxila A. Upadhyaya at the federal courthouse in Washington, D.C.
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