Indictment or Bust: the High Stakes of the Latest Trump Indictment

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David Leonhardt, in The Morning report for the NY times, prefaces an op ed by conservative Trump critic, David French, in today’s paper with some thoughts of his own. I resonate with these well-balanced thoughts as an attorney. Regardless of political leanings or morality, we should understand the legal implications and appreciate the legal lay of the land.

Leonhardt cuts through the hype and the clickbait headlines. “Shocking as it was,” Leonhardt says, “Trump’s behavior on Jan. 6 did not violate any laws in obvious ways.”  He didn’t actually tell anyone to riot, or to storm the Capitol, or to attack Congress. He even said at one point that “he knew the protesters would behave ‘peacefully and patriotically,’” observes Leonhardt.

Like it or not, Donald Trump says some wildly irresponsible things, but he is clever enough to know (it seems) not to cross the line. He seems to have a knack for teetering dangerously close to the lines without actually stepping over them. ( am not commending him to say that.)

Leornhardt observes that no federal law forbids anyone from trying to overturn the results of an election. The 2000 election is a case in point. Al Gore was convinced that improprieties took place in Florida, and he demanded a recount. Gore may have done that in a much more deferential, dignified and diplomatic way, but maintaining that some impropriety took place, no matter how crudely, childishly, and obnoxiously done, is not a crime.

We need to understand these things to understand the most recent indictment. Trump is not charged with a crime involving the overturning of an election, because attempts to overturn an election, by themselves, are not criminal. Freedom of speech and laws providing access to justice allow American people to make claims. Even outrageous ones.

The latest indictment focuses on falsehoods and intentions: the indictment, basically says, “These claims were false, and [Donald Trump] knew that they were false.” In other words, the indictment is based on fraud, which is knowingly making a false claim with the intention to deceive.

As an attorney, I can tell you that trying to prove what someone intended is no small task. It may seem obvious at first blush, but how do you prove intention absent an express admission by Trump that he knew the claims were false? Even Trump may not be that stupid.

We might conceive of a kind of braggadocio that includes boasting that he knew what he was saying was false, but even that might be beyond Donald Trump. At the very least, we have no public statement from Trump that he knew the claims were false.

The fact that advisors told Trump there was no basis in fact to the claims he was making doesn’t really help us if Trump didn’t believe his advisors. If Trump thought he knew better than them. Trump’s belief that the election was “stolen” was spurious and rested on the thinnest of evidence, but fraud requires more than mere belief that is contrary to the evidence.  

Fraud requires actual knowledge of the falsehood of a statement and an intention to deceive. As Leonhardt puts it, “[T]here is no testimony or recording in which Trump himself acknowledges the reality of his election loss,” and this makes fraud and conspiracy charges appear to be very difficult to prove.

In my opinion, Trump is almost certain to be successful in defending these charges, unless the prosecutors have evidence of private statements made by Trump in which he acknowledges the falsehood of the statements he made, and he expresses an intention to deceive the American people. Short of that kind of evidence, this indictment may be chasing after the wind.

I am hopeful the prosecutors do have that kind of evidence. Most objective Americans believe that Trump attempted to subvert “the very foundation of democracy” knowingly (or wantonly), even if it can’t be proven.  

The risk of this indictment is that Trump defends the charges successfully. We all know that a hung jury or a not guilty determination in a criminal case doesn’t mean that a crime wasn’t committed; it just means the prosecutors could not prove their case. In this case, however, failure will fuel Trump and his supporters with legal vindication, and that is dangerous.

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The Wuhan Lab and the Virus of Our Implicit Biases

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I have been seeing more buzz lately on the theory that COVID-19 leaked from the lab in Wuhan. Six months ago, the voices who promoted that concern were labeled conspiracy theorists. An article in the NY Times today (See Good morning. The lab-leak theory is everywhere. We have an explainer, by David Leonhardt, NY Times, may 27, 2021) poses the question: what changed?

A cynic like me (and partisan Republicans) will say the change is that we have a new party in control of the White House. The lab-leak theory is no longer a conspiracy theory because that narrative has lost its expediency and usefulness with the change in political control.

As the article points out, the origin of the virus was unclear from the beginning. Some scientists, politicians and journalists urged consideration of the Wuhan lab. Those voices were drowned out, however, by louder voices.

Now, things have changed. The Times article reports:

“Two weeks ago, 18 scientists wrote a letter to the journal Science calling for a new investigation and describing both the animal-to-human theory and the lab-leak theory as ‘viable.’ And three scientists who last year dismissed the lab-leak explanation as a conspiracy theory have told The Wall Street Journal that they now consider it plausible.”

Francis Collins, the director of the National Institutes of Health, now says, “We cannot exclude the possibility of some kind of a lab accident”, though he maintains it more likely that the virus developed naturally. Over a year ago, a couple of Chinese researchers wrote a paper concluding the virus “probably originated from a laboratory in Wuhan”, but not many people were willing to jump on the bandwagon.

The Times article is refreshingly candid in its assessment that the dismissal of this lab-leak theory “appears to be a classic example of groupthink, exacerbated by partisan polarization”.  I could turn this statement into a weapon for a particular political ideology, but I won’t. I also believe a lab-leak is less likely than natural causes based on my understanding of the facts that are known to date.

Regardless of what is more likely than not, the lab-leak appears to be more plausible than the scientific (and political) consensus would allow just six months ago. The political din has subsided long enough now for the disparate voices of scientists to be heard who maintain we should not rule out the lab at Wuhan as a potential source from which COVID arose.

This shift in the “consensus” can be attributed more directly to political ideation and political polarization, than science. This seems to be the indictment of the article.

We are so divided along partisan lines in our country (and world) that we can’t think straight; we can’t even get our facts straight. Our filter for determining fact from fiction and credible theory from conspiracy theory is so tainted by the dirty film of political dross that reality seems to be obscured to a large segment of our society by it.  

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Never Trump Fatigue and the No Man’s Land in between Enemy Lines

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As we careen toward Election Day in a world that might rival Alice in Wonderland for its oddities, I have been thinking about the effect of the criticisms of Trump in the press and on social media. Actually, I have been thinking about it since before the last election, but my thoughts are gaining traction now.

Prior to the last election, the press latched onto everything (so it seems) Trump said and did. It didn’t matter that 14 Republicans were in the running at one point; the press couldn’t get enough of Trump. He was a novelty, a media circus. What seemed like a side show to begin with became the spectacle in the center ring..

I assume that Trump was good for the news and media businesses. They like train wrecks and that sort of thing. It sells.

I was thinking as I watched the Republican primary lurch and stutter that the media gave Trump all the fuel he needed to become the front runner. He couldn’t have possibly asked for or gotten more press than he did. I assume that someone like Trump likes any press is good press. Without shame, the more the merrier.

I was aggravated at all the press coverage during the primary because, it seemed to me, the media was ignoring more solid candidates and handing Trump the Republican nomination. As the Primary was settled and the presidential campaigning shifted into high gear, the media attention turned increasingly more judgmental, but it didn’t matter. It was all fuel to the fire.

It was a kind of symbiotic relationship. Trump was propelled along by the inertia of press coverage, and, let’s face it, Donald Trump sold the news.  They played virus and host to each other in the truest of symbiotic dances.

I will never forget the looks of chagrin on the faces of the media pundits as the numbers came in on election night. They couldn’t believe what they were seeing, but I could. They created this Frankenstein and shouldn’t have been wondering at the power they gave him.

By the time Trump became the Republican frontrunner, the press was decidedly weighing against him. He wasn’t just an amusement anymore. Many of the stories carried their own moral weight, but those in the press who were aghast didn’t trust the public, the common people, to judge rightly what they were seeing. Facts, themselves, are apparently no longer sufficient to carry their own weight.

People are smarter than the average bear (to mix another metaphor). They know condescension when they see it. Americans, in particular, don’t like to be told what to think or do. We love our freedoms. We boast about them. Americans are nothing, if not free, right?

Another element at play was the unending, unceasing, constant and continual criticism of Trump by all the Clinton supporters and Trump haters (who were not necessarily the same people). Trump couldn’t do anything or tweet anything or say anything that wasn’t immediately denounced, condemned and decried. Not that they had any lack of ammunition.  

The Trump critics have proven to have the stamina of a racehorse and marathon runner combined. They don’t stop. They never stopped.

For over four years now, going back well before the last election, and continuing to the present time, the Never Trumpers have carried their torches boldly and loudly and often, posting unceasingly to all the world everything Trump says and does wrong on a daily basis. Not that they have lacked for material.

As the next Election Day approaches, it seems to me that Never Trump Fatigue set in somewhere along the line. I have been seeing it for awhile. People are tired of hearing it. People seem to have begun wondering, perhaps, whether the Trump critics doth protest too much.

I am not talking about the Trump supporters, who have been emboldened as the constant drone of criticism has continued to whine and increase. People on both sides of the divide have become more vocal as people in the middle, looking for some common ground or reprieve or sense of “can’t we all get along”, seem to be left, abandoned in the no man’s land in between.

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When the Meanings of Words Change at the Speed of Light

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So this happened yesterday in the confirmation hearings. Senator Diane Feinstein asked nominee Barrett if she would “vote to roll back hard-fought freedoms and protections for the LGBT community.” Barrett replied, “I have no agenda. I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.”

The comment triggered a virtual fire storm of reaction, beginning with follow up comments from Hawaii Senator, Mazie Hirono. She took the opportunity to state that “sexual preference” is a term “used by anti-LGBTQ activists to suggest that sexual orientation is a choice. It is not,” she said. “Sexual orientation is a key part of a person’s identity.”

That idea has been around since the assertion that people are “born that way” that I remember going back to the 1970’s. Though, it was a novel idea then, the groundswell of common opinion seems to side with it, now, 40 some years later. I wasn’t aware that it was scientific fact, but I might have missed that discovery.

Regardless whether it is fact or popularly accepted theory, Barrett replied, “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community.” Her initial response was that she “would not ever discriminate” on the basis of sexual preference. By my way of thinking, if she wouldn’t discriminate on the basis of preference, she would be even less likely to discriminate on the basis of “a key part of a person’s identity”.

But what do I know? Barrett’s words of clarification only seemed to fuel the firestorm of response that followed. 

That firestorm spread so rapidly that Webster’s dictionary online even changed the definition of sexual preference that same day (yesterday to be exact). The term is now officially defined as being “offensive” when used “to refer to sexual orientation” according to one of the venerable dictionaries of the modern age.

I would point out that the change occurred after Barrett made the statement, but it seems from the quick and decisive public response that she should have anticipated it.

Dictionaries, these days, change the meanings of words at the speed of light (or speed of sound, perhaps).  It’s hard to keep up, but one must ever be on guard to adapt and get out of the way of the tsunami that follows a misstep. In a culture that is increasingly attuned to what many have called “political correctness”, a person can never be too quick to change. Barrett is obviously behind the times.

Just for the record, though it wasn’t that long ago, according to the Washington Post, that people more attuned to such things, like Democratic presidential nominee Joe Biden and the late Justice Ruth Bader Ginsburg, whose seat Barrett has been nominated to replace on the high court “also used the phrase”. (Should overlook the facts on grounds that the Washington Post is a right-wing publication?)

Only a couple years ago Leon Panetta, Obama’s Defense Secretary, wrote for CNN that “Trump is not who we are” since “we are all created equal under God, regardless of our race, creed, religion, color, sexual preference.” But what do I know, again? Maybe he didn’t mean by it the offensive connotation: “to refer to sexual orientation”.

Even if we take Barrett’s words at their most pernicious meaning (that sexual orientation is a preference and not an immutable characteristic), her statement is actually quite a bit less evil than the quickest objectors have speedily supposed. She seems to be saying that, even if gender is only a preference, it deserves protection, and she stands in favor of protecting that preference. That’s good, right?

Black Lives Matter: What Is Different Now?

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All photos by ALEX CLANEY PHOTOGRAPHY • 311 S. 2ND STREET • ST. CHARLES, IL 60174 • 630.587.3866

I was born in 1959, just before the Civil Rights Movement. One of my earliest memories of things happening in the world was the assassination of President John F. Kennedy. I was 3. My mother turned on the vacuum cleaner to try to hide the fact that she was crying, but I noticed.

I remember seeing the footage of Robert F. Kennedy, Jr. being shot on live TV when I was 8, but the assassination of Dr. Martin Luther King, Jr., just a couple of months before that, has stayed with me much more than the Kennedy assassinations. Maybe the reason is that the Kennedy assassinations were national tragedies, and personal tragedies for the Kennedy family, but the shooting of Dr. King was a human tragedy.

The Kennedy assassinations mark a tumultuous time in American history when change was in the air, and many forces were fighting for footing in the changing political, social and economic seas. Many people, my parents included, put their hope in the Kennedys, who represented a vision of positive change, our very own Camelot.

With the death of President Kennedy that vision died; with the death of Dr. Martin Luther King, Jr., the  coffin was nailed shut; with the death of Robert Kennedy, Jr., that coffin was buried.

Over 50 years have passed since those chaotic times, and some things haven’t seemed to change all that much. People are still people, and the cancer of endemic and systemic racism continues to live on. It’s hard to say whether it is any less ingrained for all these years. Modern technology keeps it burning in our collective consciousness.

We have made strides, right? I think we have.

Though racial prejudice  is not as overt or “accepted”, and racism has gotten more subtle and underground, modern technology is like a kind of chemotherapy that targets the cancer and exposes it for treatment. Will Smith said recently that racism is not any greater now than it used to be; it’s just filmed more.

It seems like this cultural cocktail of COVID isolation that has given us more time to reflect, even as our collective pent up energy grows, and the most recent examples of hidden racism exposed to the sunlight have opened the floodgates to a current of active response like I haven’t really seen before. Not just the usual suspects, many people of all political, religious and socioeconomic stripes are coming together in unity, saying, “Enough is enough!” Continue reading →

Public Trust at Stake in the COVID-19 Crisis

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An article in the Washington Post, explains some things about the comparison of COVID-19 to the flu. There’s a more accurate way to compare coronavirus deaths to the flu (by Christopher Ingraham May 2, 2020) explains that flu deaths are estimated based on confirmed reports.  The confirmed reports are much, much lower, as a result, than the number of flu deaths the CDC reports.

As an example, he author cites to the 2018-2019 numbers published by the CDC. Confirmed flu deaths were 7,172 , from which the CDC estimated between 26,339 and 52,664 deaths for the year. They do this, apparently, to account for what epidemiologists believe is a sever under-count in the confirmed deaths.

(If you want to know how this works, you can refer to the abstract, Estimating influenza disease burden from population-based surveillance data in the United States, published March 4, 2015.)

Does anyone see an issue with this in light of what we are learning about the reporting of COVID-19 deaths per the CDC guidelines?

The writer cited to the 63,259 confirmed deaths from COVID-19 (as of May 2, 2020), and speculates that estimating COVID-19 deaths in the same way would result in a number that is “a full order of magnitude” more than the estimated flu deaths. (Today, as of this writing, there are now 87,841 confirmed COVID-19 deaths in the US according to the Johns Hopkins Resource Center.)

The author says the comparison “gets complicated as soon as you realize that flu mortality is not reported as a tally but as an estimated range, which is far different from the individual counts, based on testing and diagnoses, used for COVID-19”. He assumes, as well, that “COVID-19 deaths are probably underestimated”.

But are they? Someone would have to compare the CDC guidelines for reporting flu deaths and compare those guidelines for reporting COVID-19 deaths. I am not an expert in these things, so I will leave it to someone else, but I will address the way COVID deaths are reported below.

The author goes on to highlight how tricky it is to do the comparison. People usually cherry pick the figures that seem right to them: the figures that support what they feel is correct. What else is a non-expert in these things to do?

Thus, the author says, we should trust the experts. When the experts don’t agree, we should trust the consensus. That’s science, right?

More or less, that’s true, but we have a crisis of trust right now that is being exposed by the current epidemic. “Science” or not, people don’t trust the experts. We can speculate all kinds of things about the psychology and sociology of “those people” who don’t trust the experts, but I see some reason to be legitimately concerned, even without giving any credence to crazy conspiracy theories.

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