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For example, if Trump signed a bill increasing the penalty for knowingly removing classified material with the intent to retain it at an unauthorised location, that would suggest that he approved in principle of people being prosecuted for such acts, correct?
Or if Rudy Guiliani in his capacity as a US Attorney had prosecuted RICO cases against others, it would be fair to prosecute him under RICO statutes if he violated them?
Or if Trump's DoJ prosecuted a NSA worker for taking national defence information home after work (but not sharing it with anyone) and got him imprisoned for 9 years?
My firm view is that if prosecutors have evidence that is likely to prove a criminal offence beyond a reasonable doubt, they should bring charges. I'm not generally willing to commit to saying that any specific person who has not been charged should be charged - even where I think there is a high likelihood that a crime has been committed, it may not be the case that the evidence is strong enough to confidently support a prosecution - making a judgement in that regard is usually going to require a level of detailed knowledge that can't be realistically obtained through media reports.
What do you expect me to do? I have no power over the American justice system. Not even the power of the vote. I'm just a politics-addicted foreigner posting on the internet. You don't need to compromise with me, you can just ignore me.
Not even slightly. There's at least three reasons why that offers Trump no defence. First, he wasn't President at the time he committed the offences. Second, he's on tape saying he didn't declassify them. Third, the specific charges that have been brought against him don't actually require the material to be classified as an element of the offence - he's been charged with wilful retention of national defence information, not classified information.
As far as I can tell, all of the counts in those three cases are valid (both in terms of "did he do the crime?" and "should this action be a crime?"). I can't say that with absolute confidence - I haven't reviewed the relevant law in sufficient detail for each and every charge. But I have read each indictment, and there's no charge that made me go "no, he shouldn't have gotten charged with that one." But if you want positive, specific examples of charges that I have looked at in some detail and explicitly endorse, I would point to "Conspiracy to obstruct an official proceeding" from the DoJ case and count 5 "Solicitation of violation of oath of a public officer" from the Georgia case.
So looking at the DoJ charge - the core badness here is the unlawful and illegitimate attempt to prevent the transfer of power to the winner of the election. I say "illegitimate" to highlight that contesting the election result in this specific way should not be allowed, because it would allow for untrue claims of victory (like Trump's) to succeed. Whereas demonstrating election fraud in court would be a valid and legitimate way to overturn or invalidate the election result, if done successfully.
With the Georgia charge, the core badness is Trump attempting to get the Georgia legislature to certify his slate of false electors as the correct ones, in defiance of the law and the election results. Once again, the reason why contesting the election results this way is bad is not merely because it is illegal - it is because allowing this sort of behaviour would allow an election loser to hold onto power.
So, I think here is where we can find one important crux, and it's why I started off with the Paul Combatta/Mike Flynn cases. There, we don't have to rely solely on media reports; we have the IG report! It's incredibly detailed! We can compare it to the actual charges that were brought in a court of law, the arguments made therein, and the rulings which followed, all of which are also incredibly detailed! Being evasive on this question is I think a crux for why I don't believe you when you say this is your "firm view". If we can't actually come to some agreement on a case where we totally have all the information, using the principles you claim to espouse, we're going to struggle on the cases where we have less information.
I mean, he was as the time that he removed them.
I think you ought read the comment that I linked about the President's unique posture WRT classification authorities.
Given that the President's posture is unique WRT the much more grave category of classified information, it is also unique WRT the lesser category of national defense information.
Thanks! Which overt act(s) do you think Trump, himself, did in furtherance of this conspiracy?
Ok, so count 5 says that he asked the Speaker of the Georgia House of Representatives to call for a special session of the Georgia General Assembly. Of course, the indictment says that it was "for the purpose of unlawfully appointing presidential electors", but that's a bit strange, as it seems that the real badness here is contained purely in a hypothetical. The hypothetical being that if a special session had been called, the Georgia General Assembly would thereafter choose to engage in illegal activity. That's pretty thin gruel. Do you think that it should be generally illegal for people to ask legislative officials to conduct a meeting and consider something, so long as DoJ can imply that you might want them to do something illegal? Like, there is a pretty wide range of actual behavior that could have actually occurred in a hypothetical special session. Perhaps it would have been entirely legal behavior, and maybe that legal behavior could have helped/hurt Trump in whatever way. How can you justify criminal charges based on simply asking politicians to discuss something, just because you pair it with a hypothetical possible outcome of such discussion?
EDIT: Earlier this week, while traveling, I was listening to Akil Amar's podcast with Will Baude/Michael Paulsen about their recent article on Section 3, claiming that Trump was ineligible to run for President again. Interesting discussions about "who decides". I don't recall every detail, because there was a lot, but I recall a question along the lines of what happens if say, the secretary of state of a state doesn't even put Trump on the ballot, but there's a gigantic write-in campaign, and he literally wins a state based on write-ins. IIRC, they pretty much said that it was just up to the legislature to decide, presumably in a special session or something, that no, he's actually ineligible, and to then select a different slate of electors. Of course, they discussed how there would likely be court challenges to this and such, but imagine this goes up to the Supreme Court, and then they rule on whatever grounds that Section 3 doesn't mean that he's ineligible. Would you be on board with prosecuting everyone who asked the state's legislature to hold that special session or to invalidate Trump's win? They legit considered hypos kind of like this, even with a question of something like, "Should we prosecute Akil/Will/Michael for soliciting something that turns out to be illegal?" These are serious questions, and how you answer these questions can have grave implications.
Sorry, missed this question in my earlier post.
My understanding is that the law does not actually require each conspirator to commit an overt act in the furtherance of the conspiracy in order to be guilty of conspiracy - simply that an act is committed. So if you and I agree to go beat up Zorba with cricket bats, and I go and buy a couple of cricket bats, you're on the hook too. So Trump doesn't need to have committed any overt act in the furtherance of the conspiracy, as long as the prosecution can prove that someone else did, and that he was one of the schemers.
That's a bit of a pedantic point, since Trump did in fact commit overt acts in furtherance of the conspiracy. But I wanted to clarify it anyway.
In terms of his own acts, there were many, but let's take this tweet as one example. It was one of many overt attempts Trump made to pressure Pence to reject the electoral votes from battleground states and thereby obstruct the certification of the election.
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I remain uninterested in reading the IG report. If you care enough to link/quote specific parts highlighting Combotta's specific actions and show that they fulfil the elements of a specific criminal offence, I will happily agree with you that he should be prosecuted.
Fully agreed. But he has not been charged for removing the documents. The actions that he has been charged for occurred when he was not President.
I read it, I remain unmoved. You seem to be positing that three categories of person exist with different rules for each; Presidents, former Presidents, and "worker bees". Whereas the law itself does not appear to me to draw any such distinctions - the distinction it makes is between whether possession of information is "authorised" or not.
The President has authority to authorise or rescind the authorisation of the possession of national defence information, I agree. So inherently, when Trump possessed the documents while he was President, that possession was authorised.
But then he stopped being President. He was then no longer authorised to possess that information. And while I could accept that it is theoretically possible that while as President he could have authorised his post-Presidential self to hold such information, 1) I have seen no evidence he actually did this and 2) even if he had, such authorisation could have been rescinded by whoever had the authority to make authorisation decisions in the new administration.
So, at such time as he was asked to hand the documents over, he no longer had the right to retain them and he should have handed them over.
There isn't a system for deciding whether or not something is "national defence information" in the same way as there is for classified information, as far as I'm aware. It's simply a question of fact. So it would be a defence for Trump if he could argue that none of the documents contained national defence information - but it does not seem that's a particularly promising line of defence.
The offence is solicitation of violation of oath. Yes, the actual violation of oath is hypothetical. Yes, it may not have occurred - indeed, it did not occur. That does not make the solicitation legal.
If I offer a police officer a million dollar bribe and he refuses, I'm still on the hook for trying to bribe him, even if I didn't actually have a million dollars.
So, I'm well out of my depth here in terms of knowing how the law actually would be applied in a case like this. But let's say I'm the judge in this case, and I don't have any guiding precedent to help me out.
I would probably say that a threshold question arises. If you are clearly trying to apply the law as it is best understood, you're clear - eg, if you apply some 50 year old SCOTUS precedent and then it gets overturned. Whereas if you're doing something blatantly lawless you're not clear - let's say a sec of state takes Trump off the ballot for being less than 35 years old, he's obviously not even trying to follow the law.
I would further say that an unjustifiable personal belief about the law is not an adequate basis to act on and you have a responsibility to attempt to actually follow the actual law as a public official - eg, insisting "but I really honestly thought Trump was 26!" doesn't fly.
It appears as though you have pretty much already stated that you would like such people to be prosecuted. My question to you is why you think people like Mike Flynn were vigorously prosecuted for substantially less troubling behavior, with respect to the same law, while it was just known that these folks were never going to get prosecuted.
Which actions would those be?
Like, for example, when Glenn Greenwald possessed national defense information belonging to the NSA, he had no right to retain them and should have handed them over rather than publish them on the internet? Would you support vigorous prosecution of Glenn Greenwald?
There must always be a process. There must always be a "who decides" and a when that decision is made. I think in nearly all cases, such determination would flow from Article II, just the same as for classified information.
Right, but the question is whether he actually solicited something illegal. "Can y'all have a special session and look into this?" doesn't seem like soliciting something illegal.
I think these hypos are focused precisely where they should be: on the secretary of state or public official who is actually doing something. At that point, we can look at what they've actually done, we can start to look at the rationales involved and such. But this is a vast step removed. "Hey, can you look in to whether Trump is less than 35?" is monumentally stupid, but it seems to beggar belief that it should be criminal.
This is a good segue to the other comment, where Trump's tweet is apparently an overt act in furtherance of a conspiracy. I don't necessarily agree with the implications of his claims in the tweet, but IIRC, there were, in fact, some state legislatures who had tried to or expressed desires to exert some power over the process, given some of the weirdness that occurred with last minute judicial changes to the election proceedings. The validity of those attempts are pretty complicated, and while I might agree for any particular state that, in the end, the balance of state and federal law leans against that being the proper outcome, it is surely more akin to, "Section 3 is a complicated question involving deep questions of law and history," than, "Is Trump under 35?"
I would also note that, as best as I can tell, the indictment did not cite that tweet in support of the claim that he is guilty of the charge in question.
Scoping back out, I think my major point is that, even if at the end of the day we can construct some minimally plausible way to "get Trump" on at least one of the charges, nearly every single charge that we've seen has either deep theoretical or practical complications/issues, or both. They implicate incredibly deep and complicated issues of statutory interpretation, Constitutional boundaries, and Presidential powers. They all require quite a bit of straining to even get close. And when we cut into them, we see something like, "He didn't have to do anything; he just had to ask someone to look in to something," which is extremely troubling.
With such incredible complications, if I were to scope way out and try to do a similar estimate to what I did back in the Hillary case (of "success"), I'd probably have to say something similar. Perhaps with an additional caveat or two. Caveat one: my estimate is going to be, "What would the chances be for a successful prosecution under these theories/facts, but not in a world involving such immense polarization around it being Trump, like if it was just a regular, non-polarizing person?" The question without this caveat would be more of an exercise in predicting the forum and the resulting composition. The second caveat is that my estimate is going to be after appeals have gone up to actually balance these deep theoretical/historical concerns with at least some care taken for not completely fucking up the future. That is, Ted Stevens may have been found guilty, and that may have been enough to sink his political career, but after the partisan incentives subsided, we realized that it was not supportable if we're going to have even minimal concern for the way things should be done in a healthy democracy.
So, with those caveats, I would similarly put "success" on these charges at something closer to 50/50 than 80/20. And similarly to what I said about Hillary's non-prosecute, I would be just fine with seeing a non-prosecute of Trump, too, especially considering that everyone knows that he's a major frontrunner candidate. It is deeply troubling that some politicians, the ones disliked by the permanent bureaucracy, are going to get hounded on questionable charges as a mechanism to prevent them from (re)attaining political office, while the ones who are liked by the permanent bureacracy skate freely. It is an absolutely unsustainable situation that will drive further polarization, further disbelief in the legitimacy of our institutions, further disbelief in the legitimacy of our elections, and even more damage to the health of our democracy.
I would put my preferences in order of 1) Just fucking vote against the guy and make him lose again, 2) Actually lay out a real, solid case that he "engaged in" or "provided aid and comfort" to an insurrection and go through a proper process of rendering him ineligible under Section 3, 3) Bring endless ticky-tack charges that fill the pages of numerous indictments, trying to win by the persuasiveness of many words and hoping that any, just one, of your charges happens to find an left-enough-leaning jury to get it to stick (at least until appeals long after it matters). So far, I'm really getting the sense that you're gradually retreating toward, "Ehhhh, if we really squint our eyes, we can mayyyybe teeeechnically get him on X," than, "No, actually, right here is a clear example of obvious lawbreaking that is squarely within the purpose of the law and its long-standing application, without any serious theoretical/factual deficiencies/questions."
Apologies for the delay in responding again.
I'm having a bit of trouble parsing what is going on here. I'm guessing from context that you're quoting stuff about Combetta lying to the feds or something?
Wikipedia tells me that Flynn did a plea deal admitting guilt under 18 U.S. Code § 1001(a)(2), which says:
It's not completely clear to me what this does and does not mean, but given Flynn was charged with it in relation to making false statements to the FBI, I'll assume it uncontroversially covers that behaviour. In which case, if I'm interpreting your quote correctly and there is solid evidence that Combetta also lied to the feds, then yes I absolutely agree that Combetta should have been prosecuted. There's a separate policy argument to be made whether or not "don't lie to feds" should be a rule, but that's a matter for Congress. Prosecutors and judges have a responsibility to apply the law as it is.
I'm not game to venture an opinion as to why the disparate treatment occurred. I can certainly imagine or hypothesize that it was for reasons of political influence, but I obviously don't actually know. But regardless of the reason, the mere fact of disparate treatment would be sufficient for me to say that the relevant decision makers should have been shown the door and more even-handed ones appointed.
Now onto Trump and the documents case:
Wilful retention. He was repeatedly asked over the documents beginning in May 2021. He was warned that failure to comply with that failure to comply with that direction would be referred to the DoJ, and he failed to comply with that direction.
I'm not familiar with the particulars of this incident. But on a facial description, yes? Journalists don't get a pass to break the law just because they're journalists.
It appears to me that the "who decides" would be the court, and the "when" would be at such point when a breach of the law is prosecuted. In much the same way as if you are charged with sending threatening messages, it is the court who will determine whether or not the content of those messages counts as "threatening".
Absolutely correct. "Call a special session for no particular reason"? Not illegal. "Call a special session to investigate this thing?" Not illegal. "Call a special session to give your electoral votes to the loser of the election?" Illegal.
I'll get to the rest of your post later.
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