Nixon had the eighteen-and-a-half-minute gap in the White House tapes. Nixon was a piker. Trump has a SEVEN+ HOUR gap in his phone logs that just happens to fall during the Jan 6 insurrection. There’s almost no conceivable explanation that doesn’t make Trump look awful.
I’m actually quite depressed about this, as I fear that it vastly increases the odds that Governor Evil will become the Republican nominee, and perhaps even the next President.
In general, I’m of the view that we have too many jails and prisons (and far too many private prisons!), and that this is an industry, or social practice if you prefer, where supply tends to create demand for reasons economic and social.
But I’ve learned that we are short of one jail we need. In today’s New York Times explainer on executive privilege (a non-constitutional doctrine invented by courts, but don’t get me started), author Charlie Savage has an aside in his explanation of the convoluted and uncertain way in which Congress enforces its finding of contempt by non-cooperating witnesses:
(In theory, lawmakers could also direct the House sergeant-at-arms to arrest recalcitrant witnesses and detain them until the end of its session, but that “inherent contempt” authority is viewed as obsolete; the Capitol has no prison cell and lawmakers have not tried to use this power since 1935.)
So here’s my very modest proposal: Congress should either build its own little jail, or it should contract with a nearby jurisdiction–or a private prison company–to guarantee to hold anyone arrested by the Sergeant at Arms. I doubt they would actually have to use it; rather, having this capacity on tap would provide a much greater in terrorem effect than the current system which requires first that the U.S. Attorney for the District of Columbia take up the case, and second that the court fights over it happen quickly–the latter being highly unlikely.
Surely a contingency contract with a per diem per prisoner if required would be a very minor budget item. Stick it in the reconciliation bill please.
Dick the Butcher in Henry VI, part II, act IV, Scene II, Line 73 explains the necessary first step to seizing power illegally.
Mr. Rosen, Mr. Donoghue and Mr. Pak — all Republicans — testified that Mr. Trump was not seeking their legal advice, but strong-arming them to violate their oaths of office, undermine the results of the election and subvert the Constitution.
What stopped him? Two things: 1) Lawyers with a basic core of ethics that required fidelity to bedrock democratic values; and 2) the general incompetence of the plotters (cf. events of Jan 6, 2020).
I believe this has important implications for how we teach law students. More discussion of (or paeans to?) the values of the rule of law in a democratic society may be in order. At least until the Supreme Court makes ashes of it in our mouths, at which point…what?…Edward Luttwak?
Among the things Bill Barr did in his second tour as Attorney General were to:
- Make speeches arguing that progressive politics were a threat to the nation
- Spend months prioritizing the criminalization of Antifa and Black Lives Matter, even as his own department showed that right wing terrorism was a far more serious problem and the Boogaloos were deliberately attempting to launch false flag operations pinned on Antifa
- Repeatedly claim mail-in ballots were prone to fraud in defiance of the evidence, a key part of Trump’s later attempts to undermine the outcome of the election
- Treat overt threats against a judge from the Proud Boys as a technicality unworthy of a sentencing enhancement
- Continue a policy of disciplining, firing, or criminalizing Department personnel who investigated Trump and his associates
- Even at a time Barr admitted he was unfamiliar with the evidence — and persistently throughout his tenure — undermine the premise and conduct of the Russian investigation, appointing at least three US Attorneys to undermine the investigation
- Dedicate department personnel to chase conspiracy theories spun by Sidney Powell in a failed attempt to undermine a legitimate prosecution
- Not only provide Rudy Giuliani direct access to the Department, but (by all appearances) undermine criminal charges against him for influence peddling involving now-sanctioned Russian agents
In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy — was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.
And, let’s not forget the very misleading spin of the Mueller Report.
Washington Post reports that Trump is stiffing Rudy Giuliani on his (inflated?) legal fees after a falling out:
Trump has instructed aides not to pay Giuliani’s legal fees, two officials said, and has demanded that he personally approve any reimbursements for the expenses Giuliani incurred while traveling on the president’s behalf to challenge election results in key states. They said Trump has privately expressed concern with some of Giuliani’s moves and did not appreciate a demand from Giuliani for $20,000 a day in fees for his work attempting to overturn the election.
And why not? Rudy is of no further use at this point, and Trump always stiffs his creditors.
Jotwell Blenderlaw
