Trump's Present and Future possible indictments

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Part 5



So, if you’re looking for a hero this week, Trump Employee 4 is a solid candidate. The allegation that Trump tried to destroy video evidence pushes this case over the top. It demonstrates he was conscious of his guilt. When Employee 4 testifies at trial that "DE OLIVEIRA told Trump Employee 4 that 'the boss' wanted the server deleted,” it’s chef’s kiss.

False Statements: The last of the new counts is count 42, which charges only De Oliveira with making false statements to FBI in a voluntary interview after being advised it was a crime to lie to them. This charge is open and shut—De Oliveira made certain statements, and they aren’t true. The only other thing the government needs to prove is that they were material to the investigation. Since these statements involve the handling of Trump’s boxes when they first came to Mar-a-Lago after he left the White House, and how they were stored, they undoubtedly had bearing on important information the FBI was acquiring to conduct its investigation.

Faced with this charge—an easy one for the government to prove, along with the others, especially the obstruction charges which carry lengthy penalties—it’s tough to figure why there wasn’t a plea agreement instead of an indictment. Perhaps that reality will dawn on De Oliveira as the case progresses, and he’ll end up testifying against Trump. Or perhaps he, like so many others, will stick by their Don. Maybe there’s a promise of a future pardon or some other benefit. One of the mysteries of Trump’s slick success with avoiding legal accountability remains his ability to prevent people from cooperating and testifying against him to save themselves.

The Protective Order: Jack Smith also filed a renewed motion for a protective order today—Judge Cannon still hasn’t put in place the basic order that permits classified discovery to proceed. Instead, after Trump’s lawyers unreasonably refused to agree with terms designed to protect classified materials they would receive in discovery, Judge Cannon ordered the government to go back and continue to try to work with them. They did, and today’s motion identifies two outstanding areas of contention. One is Walt Nauta’s insistence that he should have access to classified information—the Special Counsel says that’s unnecessary because he isn’t charged in any of the retention counts, but his counsel, who now possesses a security clearance, will be able to see it and can move to let Nauta view anything that does become relevant to his defense. This one should be resolved, easily, in the government’s favor.

Then there’s Donald Trump. He doesn’t want to have to go to a SCIF (Sensitive Compartmented Information Facility) to view classified material with his attorneys. He wants to be able to see it in the comfort of his own home. Trump still doesn’t get he’s not going to receive special treatment, unless Judge Aileen Cannon gives it to him. If she does on this point, look for Jack Smith to appeal immediately and win. Trump’s request flies in the face of clearly established law on handling classified documents—not exactly a shocker given the nature of this prosecution.



So, what’s going on here? Trump is making this argument, not because he thinks it’s a good one—it’s clearly a loser. He’s making it to set up an argument down the road that the trial has to be delayed even further. The argument will go something like this: President Trump is the Republican nominee for the presidency and he has a busy, full schedule. He can’t be running over to the courthouse in Fort Pierce or Miami to look at evidence with his trial every afternoon. We haven’t had enough time to prepare his defense. And it’s the government’s fault; they wouldn’t accommodate us. We need more time to be properly prepared for trial.

Judge Aileen Cannon, if past is prologue, may fall for it. But the argument is tone deaf, a real failure to read the room, or at least the Special Counsel’s office. Jack Smith was quick to point out that “Defendant Trump’s personal residences and offices are not lawful locations for the discussion of classified information, any more than they would be for any private citizen.” That’s true. And here’s the kicker, “There is no basis for the defendant’s request that he be given the extraordinary authority to discuss classified information at his residence, and it is particularly striking that he seeks permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case.” Judge Cannon has set a leisurely schedule for discovery; now would be the moment for her to tell defendant Trump that she means it, if in fact she does, and that he, like anyone else facing similar charges, can spend time with his lawyers in a SCIF.

Donald Trump, self-described victim, has met Jack Smith, career prosecutor. And Smith isn’t buying it.

A Superseding Indictment

What you need to know

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[ Adding logs to the fire ]

The notoriously thinned-skinned ex-president used his social media platform Friday morning to fire back at Special Counsel Jack Smith for adding three new charges to the Mar-a-Lago documents indictment, including one for ordering a server with video evidence erased before the DOJ could get their hands on it. Brian Tyler Cohen decimates Trump’s entire Truth Social rant, destroying every, um, “argument” he presents that he thinks somehow exonerates him from culpability in charges laid out in this and other indictments that have either been issued or are imminent.

 

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Two significant national security risks flow from this alleged conduct.

1. The coverup (obstruction) is not worse than the crime (Espionage Act) – it facilitated the ongoing criminal conduct.​

The attempted destruction of the video recordings was not just a coverup of the underlying crime of having unlawfully retained national defense information. Properly understood, it was also a means to continue that underlying conduct. Put another way, the attempt to delete the footage would not simply have served to hide past wrongdoing. It also could have prevented the FBI and other federal authorities from knowing that Trump continued to hold onto dozens of more highly classified materials – e.g., the boxes of materials that were never returned to the storage room, including the materials recovered during the FBI search of Mar-a-Lago in August 2022.

As Bridgeman and Rosen outlined in detail in the prior Just Security article, the continued retention of those highly classified documents in an unsecure environment and without the intelligence community knowing exactly what was missing posed enormous risks to U.S. national security. The effort to destroy the video footage should be understood as facilitating that result.

The initial indictment laid out in great detail the sensitivity of the documents Trump retained in the boxes at Mar-a-Lago, including “information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and to plans for possible retaliation in response to a foreign attack.” As Bridgeman and Rosen wrote:

Compromising these types of intelligence streams could lead to an irreplaceable loss of technical or human access that took years and significant resources to develop. And that also entails a corresponding loss of insight into sensitive programs, leadership dynamics, and intent on the part of foreign governments (including adversarial ones) and their leaders. Some of the implicated intelligence streams could also be crucial for the defense of the United States, its allies, and its forces abroad.

2. The surveillance video as a tool for understanding who had access to the classified documents.​

As the government explained in court filings, the U.S. Intelligence Community conducted a damage assessment and risk mitigation following the intelligence breach posed by Trump’s retaining classified documents at Mar-a-Lago (and transporting some of the material to and from Bedminster). One of the most challenging parts of that damage assessment is determining who might have had access to the materials, for how long, and under what conditions (i.e., whether visitors were left alone in the room with cell phones or other recording devices). Those facts are crucial to assessing the extent to which U.S. intelligence programs, human sources, and technical collection streams may have been compromised. The surveillance footage presumably would play a valuable role in making such assessments. The purposeful destruction of such a source of information would thus pose its own significant concerns for the continued viability of sensitive intelligence operations and U.S. national security more broadly.


(full article online)

National Security Implications of Trump’s Superseding Indictment: A Damage Assessment 2.0 - Just Security

The alleged attempt to delete surveillance camera footage at Mar-a-Lago poses its own significant concerns for U.S. national security.

www.justsecurity.org

 

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Jack Smith Notifies Judge Cannon He Has More Surveillance Footage of TFG’s Merde-A-Lardo

From the Twitter feed of MSNBC Legal Analyst, Lisa Rubin:

www.dailykos.com

 

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On Tuesday, Aug. 1, a federal grand jury in Washington, D.C. indicted former President Donald Trump on four counts relating to his efforts to overturn the results of the 2020 presidential election. The indictment includes six unnamed co-conspirators.

“[F]or more than two months following election day on November 3, 2020, the Defendant [Donald Trump] spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false,” the indictment reads.

According to the unsealed indictment, Trump is charged with:

1. Conspiracy to defraud the United States;
2. Conspiracy to obstruct an official proceeding;
3. Obstruction of and attempt to obstruct an official proceeding and
4. Conspiracy against the right to vote and have one’s vote counted.

With regard to the first three conspiracies, the indictment notes that: “Each of these conspiracies — which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud — 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.”

“Shortly after election day, [Trump] also pursued unlawful means of discounting legitimate votes and subverting the election results,” the indictment continues. The 45-page unsealed indictment also points to Trump’s conduct — including false statements — that interfered with “others’ right to vote and have their votes counted” in the 2020 presidential election.

These charges result from an independent special counsel investigation led by former Assistant U.S. Attorney Jack Smith. Appointed as special counsel for the U.S. Department of Justice (DOJ) by U.S. Attorney General Merrick Garland in November 2022, Smith was tasked with running an independent investigation into Trump’s role in the Jan. 6 insurrection. Earlier this month, Trump announced that he received a letter from the DOJ indicating that he is a target of its investigation into the events leading up to Jan. 6, 2021.

Trump and his allies filed over 60 post-election lawsuits challenging the results of the 2020 election in states across the country, including in key battleground states like Michigan, Pennsylvania, Wisconsin and Arizona. They lost all but one of the lawsuits, including a case at the U.S. Supreme Court that sought to invalidate election results in multiple states.

In addition to investigating the events leading up to the Jan. 6 insurrection, Smith led a separate probe into Trump’s withholding and concealing of classified documents. In connection with this investigation, Trump was indicted by a federal grand jury in Florida on June 8 for his mishandling of over 100 classified documents following his departure from office. Trump faces 37 felony counts including conspiracy to obstruct justice and willful retention of national defense information.

This week’s indictment marks the third time this year that Trump has been indicted on criminal charges. In March, Manhattan District Attorney Alvin Bragg announced an indictment of Trump charging the former president “with 34 counts of Falsifying Business Records in the First Degree” related to his hush money payments to Stormy Daniels in the leadup to the 2016 presidential election.

The case concerning Trump’s efforts to overturn the results of the 2020 election has been assigned to Judge Tanya Chutkan of the U.S. District Court for the District of Columbia, who was appointed by former President Barack Obama in 2014. Trump is expected to plead not guilty.

Former President Donald Trump Indicted For Efforts To Overturn 2020 Election

Read more here.

www.democracydocket.com

 

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Case 1:23-cr-00257-TSC Document 1 Filed 08/01/23 Page 1 of 45

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

https://www.democracydocket.com/wp-content/uploads/2023/08/Indictment-1.pdf

 

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Part 1

Today, Tuesday, August 1, 2023, was the day the Justice Department indicted the wretch of a former president for trying, and damn near succeeding, in preventing American voters from determining the outcome of the presidential election in 2020. It’s about time.



The January 6 investigation was massive, and it’s remarkable Jack Smith got to this point so quickly. He owes a huge debt of gratitude to the House January 6 Committee, which did prosecutors’ work, unearthing much of the evidence that was used to indict. In a very real sense, prosecutors in this case stand on the shoulders of the members of the House who insisted on pursuing the investigation and made Americans believe that accountability for the former president was possible.

The conduct, the swarm of different angles Trump worked to try and steal the election, makes for a complicated prosecution. It was a massive effort at political interference in the constitutional processes that make our country a republic. The factual basis for the charges, even though we’ve lived through the events themselves, is not simple like the Mar-a-Lago classified documents case is. There you can readily wrap your mind around the basics and understand Trump kept classified documents he wasn’t entitled to and obstructed the government’s efforts to get them back. You can’t do the January 6 investigation in one sentence like that. Trump had a lot of moving parts in play to try and hold onto power, some legal, and many others not.

So the question has always been, how would Jack Smith make sense of it all, organize the conduct, and charge this case? It has to be done in a way that, legally speaking, is air tight—there’s no point in fighting for a conviction that you lose on appeal—but it also has to make sense out of a morass. For instance, we all understand now that there was a scheme to use fake slates of electors to try and interfere with the count of votes under the Electoral CountAct. But in the wake of the election, as news of an event here and another there began to emerge, we didn’t have the roadmap we have now for understanding the component pieces, which include efforts in swing states, the attempt to pervert DOJ, the pressure campaign on Pence, and so on. That’s the challenge: draft an indictment that will make compelling sense to 12 jurors in a courtroom who get to hear all the evidence and make a decision based on it. Which of Trump’s many crimes do you charge him with?

Now we know.

Tonight, I want to give you a bit of a guide for reading the indictment for yourself. I think it’s important to do that. Set aside an hour or two, or find ten minutes here and there over the course of the next week. You’ll understand it better if you read it for yourself. The indictment is written in a manner that makes it clear prosecutors wanted it to be comprehensible to anyone who wanted to read it.

The indictment is a speaking indictment—the story of the three conspiracies that are charged is told in detail.

First off, you get some framing in the introductory paragraphs. The government alleges that Trump “spread lies” and that he “knew that they were false.” And it sets up some parameters: Trump could legally lie about the election and say it was tainted by fraud. That’s okay—what I would call awful but lawful. He could challenge the results in court and seek recounts. But DOJ draws the line in paragraph 4 and says that what he can’t do is pursue “unlawful means of discounting legitimate votes and subverting the election results.” In other words, some of what he did, the lawsuits for instance, was lawful. His lies to the public were distasteful and inappropriate but still, not crimes. But then Trump crossed the line into criminal. That’s the conduct, we learn in the introduction, that we’re going to hear about in the rest of the indictment.

It’s done artfully; it clarifies that this isn’t about going after Trump for his speech, which is arguably (at least in his view) protected by the First Amendment. It’s about his conduct, illegal conduct. In the opening lines of the indictment, prosecutors effectively gut the First Amendment defense Trump has been floating for the last two years.

There is only one defendant, Donald Trump. That’s likely a strategy for streamlining the process to get the case to trial as quickly as possible. He has six uncharged and therefore unnamed (but as good as identified) co-conspirators. We’ll get to them in a moment. The indictment alleges three separate conspiracies:

• one to defraud the United States by interfering with the lawful processes that are used to collect, count, and certify the presidential election (18 USC § 371)
• one to obstruct the January 6 congressional proceeding in which the results are counted and certified (18 USC § 1512)
• one to defeat citizens’ right to vote and have their votes counted (18 USC § 241)

It alleges that each conspiracy was fostered by the “widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud.” There is also one substantive charge of obstruction related to the second conspiracy.

The penalties are serious. 18 USC § 371 carries a five-year maximum. The two charges under 18 USC § 1512 each have a 20-year maximum penalty. And the maximum penalty for violating 18 USC § 241 is 10 years. While the sentencing guidelines often set a lower range the judge is advised to sentence within, here, and especially if Trump has picked up one or more prior convictions before he’s sentenced, there is serious time associated with conviction on any one of these charges.

Here’s the trick to understanding the indictment. Because the same facts underlie each of the charges, the government sets them out only once, in the first count. Then it adopts them as the factual basis for each of the next three charges. That means that the first count, which begins on page 3, takes up the bulk of the indictment. It concludes on page 42. But once you’ve read it, you have the facts and the key aspects of each of the conspiracies that are charged. If you want a refresher on the basics of conspiracy law before you get started, we did that here at Civil Discourse, back in July of 2022, with chicken videos to explain the finer points of the law: “Conspiracy! Understanding the basics (with chickens).”

First, we get the “purpose of the conspiracy.” This is a standard inclusion in conspiracy indictments. In essence, here, it’s the purpose of all three conspiracies. The government alleges Trump’s purpose “was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government functions by which those results are collected, counted, and certified.” The plain, legal prose is so dry that it almost masks what this is about: a president who wanted to take away the right of Americans to vote.

The next section clarifies who the “co-conspirators” referred to throughout the indictment are. But because they aren’t charged in the indictment, DOJ policy says they can’t be identified by name. Instead, we get descriptions that all but identify them after informing us that Trump “enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power.” I’ve added their likely identities in italics following the language describing them from the indictment:

a. “Co-Conspirator 1, an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not.” Rudy Giuliani

b. “Co-Conspirator 2, an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” Trump lawyer John Eastman, whose communications were disclosed after a judge found the crime–fraud exception meant the attorney–client privilege should be set aside

c. “Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded ‘crazy.’ Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.” “Kraken” lawyer Sidney Powell

d. “Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” DOJ environmental lawyer and AG wannabe Jeffrey Bossert Clark

e. “Co-Conspirator 5, an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Kenneth Chesebro, another lawyer involved in devising the fake electors scheme

f. “Co-Conspirator 6, a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Identity unclear

How to Read the Indictment

United States v. Trump, again

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Part 2

Next up is a section entitled “Federal Government Function” that manages to explain, in one paragraph, how the electoral college system works. It will also make you wonder why we still use this godforsaken system that unduly focuses presidential selection power in less populated parts of the country, but we’ll leave that for another day. Like all conspiracy indictments, this one has an involved section on “Manner and Means,” which is an overview that explains how they did it. Here, it’s a helpful summary of all the conduct that’s laid out next. There is the use of fake fraud claims to try and subvert the outcome of state elections, the fraudulent slates of electors, the attempted subversion of DOJ, the pressure campaign on Vice President Mike Pence, and Trump’s exploitation of the violence at the Capitol on January 6 to try and convince Congress to delay certification of the vote.

Before the indictment dives into the details of those means of effectuating the conspiracies, we get a section you don’t normally see in indictments, where the government sets forth its evidence that Trump knew the fraud claims he was making about the election were false. We discussed the importance of the government being able to use circumstantial evidence to establish what was going on inside of Trump’s mind, notably, that he knew he’d lost the election but lied about it. The government uses three and one half pages of the indictment to set out its evidence in that regard in detail. With that important detail established, we then get a detailed layout of each of the “Manner and Means” of executing the conspiracy, and it’s here that you may want to spend some time. Most of the contours are familiar; we know about the events in Georgia, for instance, but some of the detail is informative, and it’s an excellent refresher to make sure you remember the details you first learned while watching the January 6 Committee hearings.

So we get a speaking indictment, or as MSNBC anchor Ari Melber quipped tonight, a shouting indictment. We still have some unanswered questions. The status of the unindicted co-conspirators isn’t clear. Often, people identified that way are cooperators, but that doesn’t appear to be the case here. It seems likely that some or all of these people will face charges in the future. Their crimes are set out clearly in the indictment, and there’s little rationale other than expediency, a weak one at best, for permitting them to escape accountability for their conduct. But there are other people who appear to be working with the government. Mike Pence, after trying to fight off his subpoena with all sort of excuses, testified and would seem to be the only possible source of information about his personal conversations with Trump, which includes this fascinating passage in paragraph 90:

On January 1, the Defendant called the Vice President and berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution. The Vice President responded that he thought there was no constitutional basis for such authority and that it was improper. In response, the Defendant told the Vice President, “You're too honest.” Within hours of the conversation, the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, “The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal! [emphasis added.]

Still more interesting is the question of Mark Meadows’ status. In paragraph 28, there is information that seems like it would have to have come from him: “On December 23, a day after the Defendant’s Chief of Staff personally observed the signature verification process at the Cobb County Civic Center and notified the Defendant that state election officials were ‘conducting themselves in an exemplary fashion’ and would find fraud if it existed, the Defendant tweeted that the Georgia officials administering the signature verification process were trying to hide evidence of election fraud and were ‘[t]errible people!’” If Meadows is actually cooperating, in the sense that he’s finally decided to share everything he knows about Trump with prosecutors, that would be big. But there’s little additional information in the indictment to suggest that. Prosecutors aren’t obligated to reveal all of their evidence, but in the event they want to convince some of the six unindicted co-defendants to cooperate, they might want to show off a little more evidence to help them understand the peril of their situation if they don’t. Five of them, after all, are lawyers, and all quite capable of assessing the evidence. It’s surprising we don’t get more here if Meadows is in fact on board.

So, take some time when you can, and read the indictment for yourself! Encourage others to do it, too. Most importantly, don’t accept the defeatist mentality that no Trump supporters can take in the information and change their minds. While his hardcore base may not, there are others who may support him for policy or political reasons, but who, when confronted with the hard facts about his complicity, including Count Four where he is charged with a conspiracy to interfere with Americans’ right to vote, may finally decide they’ve had enough.

Finally, cameras in the courtroom. Chief Justice Roberts could ensure these proceedings were made publicly available. He can order that there be cameras in the courts. And he should. That final charge makes it clear that we are all victims of this crime. We have the right to watch the proceedings.



Because this isn’t a case about classified information. We’ll see more of the proceedings in public, and it should kick into gear more quickly, with arraignment scheduled for Thursday afternoon. The Judge, Obama appointee Tanya Chutkan, confirmed in the Senate by a vote of 95-0 in 2014, has signaled she means business with that prompt kickoff. But given the time it takes to get cases to trial in the District of Columbia’s courts, often over a year and a half, we’ll have to wait to see if there’s even a prospect of this case, so highly important and certain to be aggressively litigated, getting to trial ahead of the election.

Today was one of the good days for people who believe in the Republic. No man should be above the law. Trump is finding out that democracy and the Constitution are for real.

How to Read the Indictment

United States v. Trump, again

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[ It does take time to gather evidence, Donald. And the evidence is there, from all of your staff and others who were working for your administration. ]

 

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