November 3, 2022
While most of us have been watching the jockeying around the election, our legal system has continued to work on its own clock.
Yesterday morning, Kyle Cheney, Josh Gerstein, and Nicholas Wu of Politico reported more about the eight emails lawyer John Eastman, who wrote the memo outlining a plan by which then–vice president Mike Pence could steal the 2020 election for Donald Trump, tried to hide from the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. The emails included discussions between Eastman, fellow Trump lawyer Kenneth Chesebro, and others about how to stop Congress from counting the certified 2020 electoral ballots on January 6, 2021.
In the emails, Chesebro urged arranging to get a case before Justice Clarence Thomas on the Supreme Court so he could issue a stay that would cast doubt on the legitimacy of the election in Georgia. They should “frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt.” Thomas oversees the circuit court that includes Georgia, and he would “end up being key” to getting Biden’s victory overturned.
Eastman responded: “I think I agree with this.” Such a move by Thomas could “kick the Georgia legislature into gear.”
As a young lawyer, Eastman clerked for Thomas, and Dan Froomkin of PressWatchers noted that Eastman and others were in this same period of time writing to Thomas’s wife, Ginni, who was urging state legislators to overturn the election by submitting fake slates of electors.
Froomkin pointed to a New York Times article from June 15, 2022, which explained that on December 24, 2020, five days after Trump had announced a “protest” at the Ellipse to be held on January 6, Eastman wrote to Chesebro that Eastman had heard there was a “heated fight” among the Supreme Court justices about whether they should take up the election issue. Chesebro replied that the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”
So we seem to have a deliberate attempt to throw a court case to Justice Clarence Thomas, whose wife was urging the overthrow of the election, and to pressure the Supreme Court to act by creating chaos in the streets, all in order to keep former president Trump in the White House.
In the case of the 11,000 government documents the former president took to Mar-a-Lago, the Department of Justice has offered immunity in the case to Kash Patel, a man closely tied to former president Trump, to testify about Trump’s handling of those documents. Patel has previously invoked his Fifth Amendment rights against self-incrimination, after telling the right-wing Breitbart media network that Trump declassified the documents before he left the White House in January 2021. Prosecutors cannot use anything Patel says against him at trial so long as he testifies truthfully. A federal judge ordered him to testify before a grand jury, which he did today.
In the case of the Trump Organization’s fraudulent business practices, New York Judge Arthur Engoron today ordered an independent monitor to oversee the Trump Organization and blocked it from transferring assets without court approval. Trump lawyers complained that this move was “about seizing control of a successful company,” but the attorney general’s office said it was trying to guard against “ongoing fraudulent activity or deceptive activity.” In September, on the same day the New York attorney general’s office brought suit against the Trump Organization for fraudulent business practices, representatives from that organization created a new company called Trump Organization II. The judge has appointed a monitor to make sure the old company doesn’t transfer assets to the new company to avoid legal action.
Trump promptly attacked the decision, calling Engoron “a puppet judge” and saying the decision is “Communism come to our shores.” Later, he told a crowd that “a radical left lunatic judge in New York City who is totally controlled by my worst enemies in the Democrat Party…started a process of property confiscation that is akin to Venezuela, Cuba, or the old Soviet Union.”
The characterization of a decision to make sure the Trump Organization does not continue to break the law after a pattern of fraudulent behavior as “Communism” is a product of the U.S. interpretation of the 1991 fall of the USSR. Republicans then made the mistake of assuming that democracy and unfettered capitalism always traveled together. Over the years, Republicans have largely ignored the “democracy” part of that equation and continually doubled down on the idea that the American system means that businesses should be able to do whatever they wished. In that warped formulation, any oversight must be like Soviet-style communism.
Trump also called his followers on his social media site to “fight back against radical tyranny and save our Country!”
This call for violence echoes the former president’s calls to stop the counting of the certified electoral votes on January 6, 2021, and it illustrates why it is so important for the Department of Justice to enforce the laws. If there is no penalty for lawbreaking, there is no deterrent from breaking laws going forward. But, in fact, the Justice Department has been calling to account those who participated in the January 6th attack on the U.S. Capitol: in September, former New York City police officer Thomas Webster was sentenced to 10 years in prison.
With actual penalties mounting against those who answered to Trump’s previous calls for violence, it is unclear how many will answer again, although Trump appeared to be trying to rally them with what observers say is a frivolous lawsuit filed yesterday against the New York attorney general, Letitia James, complaining that “she attacks great and upstanding businesses.”
Penalties appear to be mounting for those breaking the law for Republican election victories. Republican operatives Jack Burkman and Jacob Wohl pleaded guilty in October to a felony charge of telecommunications fraud for robocalls to depress the Black vote in Cleveland in 2020 and are facing fines and up to a year in prison. And earlier this week, a judge ordered two leaders of True the Vote, a right-wing organization pushing the voter fraud conspiracy theories at the heart of the debunked film 2000 Mules, to jail for contempt of court. An election logistics software company they have publicly accused of stealing the election for Biden has sued them for defamation; they claim to have evidence of election fraud but have refused to produce it.
Meanwhile, the Trump Organization is currently on trial in New York for criminal tax fraud. Prosecutors allege the company avoided taxes by paying executives with apartments, cars, and school tuitions.
While legal news has piled up, the upcoming midterm elections have not gone away. Tonight, television personality Oprah Winfrey, who was largely responsible for bringing Republican Mehmet Oz to national prominence on her television show, endorsed his Democratic opponent, John Fetterman, for senator from Pennsylvania.