Saturday, July 13FROM THE RIVER TO THE SEA, PALESTINE WILL BE FREE

We Know He Committed Crimes, Why isn’t This a Slam-Dunk Case?

BY JENNIFER VAN BERGEN

Teflon Trump. Image: JSC an Art AI Generator.

A friend of mine asked me this question. My first response was to ask him which case he was talking about and he said “All of them! Any of them!”

My friend then asked: “What is the privilege? What is the problem?”

My short answer is: These ARE slam-dunk cases. And there is no privilege; there is no problem.

And again, a short answer is that the legal system takes time. It takes time to gather evidence — witnesses, documents — and organize it into a coherent, understandable narrative.

It’s easy to say these are slam-dunk cases. We saw Trump tell his followers to “Stop the Steal” and we saw them march on the Capitol and attempt to stop the proceedings of Congress to certify the electoral votes.

In the Mar-a-Lago case, Trump admits that he kept classified documents. The evidence is overwhelming that he did so intentionally.

In the Georgia election fraud conspiracy case, we have heard the phone call with him asking Georgia Secretary of State Raffensperger to “find” 11,780 more votes.

But here’s the rub. Was it illegal for Trump to exhort his followers to march on the Capitol? Was he responsible for the violence that ensued? Was it illegal for the former president to retain classified documents? Was it illegal for Trump to ask Raffensperger to find more votes? (I don’t know, maybe they were hiding somewhere?)

When we talk about due process — this is where it comes in. Just because we saw what we saw and concluded what we concluded doesn’t mean the law works that way. The law demands that every criminal defendant be entitled to due process and equal protection of the law. Every criminal defendant has the right to a presumption of innocence, which means that the state must prove that he’s guilty beyond a reasonable doubt. Every suspect has the right to be free of unwarranted searches and seizures, to refuse to testify against himself, to a legal defense, assistance of counsel, and trial by a jury of his peers.

Neither Jack Smith nor Fani Willis can just come out and say “We know he’s guilty!” They have to prove every piece of each crime they allege Trump committed (and corroborate each one more than once) and every element of each crime.

It’s not enough even for a prosecutor simply to tell a story: “First Trump was President, he was shown classified information, he was allowed to keep those documents, they were retained in his presidential papers, but when he left office, he was not allowed to take them with him.” We are supposed to take Smith at his word here? No, he has to prove these things. Every one of them.

Not only that but even before a prosecutor brings an indictment, prosecutors must investigate to see what evidence exists — not just what he or she thinks exists but what s/he can corroborate by documents, testimony, witnesses, etc. Who will come forward to testify? What documents exist and where can they be found?

Sometimes the FBI may investigate and hand over their findings to prosecutors. Sometimes prosecutors impanel investigative grand juries. There are “special grand juries” to investigate crimes and there are general grand juries to decide whether to recommend indictment.

And only then will a prosecutor (whether state or federal) decide who to indict and for what.

If you know these things and you take a look at the timeline of events, you will see that these processes have actually been moving very fast in Trump’s cases.

The Cases Against Trump

The January 6th attack on the Capitol occurred on January 6, 2021. Biden took office on January 20, 2021.

Merrick Garland was confirmed as Biden’s Attorney General on March 10, 2021. By then, according to Michael R. Sherwin, then-acting U.S. attorney for the District of Columbia, federal agents had already conducted 709 searches, charged 278 rioters and identified 885 likely suspects.

But, more than a year passed before prosecutors and FBI agents jointly embarked on a formal probe of Trump’s actions to try to steal the election. According to the Washington Post (in an excellent report on the various factors that went into the Justice Department’s investigations):

A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him.

Given the unprecedented situation the DOJ found itself in, given Trump’s attempts to subvert the Justice Department while he was in office, and given that a new president and a new Attorney General were now finding their footing, institutional caution in an effort to restore public trust and handle evidence carefully seems well warranted.

While the DOJ was dealing with these issues, the House Select Committee to Investigate the January 6th Attack on the United States Capitol (commonly referred to as “the January 6th Committee”) was formed on July 1, 2021. The Committee spent over a year interviewing over a thousand people and reviewing over a million documents. On December 19, 2022, the Committee voted unanimously to refer Trump and the lawyer John Eastman to the U.S. Department of Justice for prosecution. On December 22, 2022, it published an 845-page final report (including the executive summary released three days earlier).

Back at the DOJ, a year after the Capitol attack, in January 2022, before Jack Smith was appointed Special Prosecutor (who was appointed on November 18, 2022, only after Trump announced he was again running for president), Garland finally began directly investigating Trump’s fake electors plot.

Once Smith was appointed (even before he returned to the United States, since he was then serving in the Hague as chief prosecutor of Kosovo war crime cases), he immediately began issuing subpoenas.

It took a year, but on June 8, 2023, Smith secured a grand jury indictment against the former president for mishandling classified documents after leaving office, and on August 1, 2023, Smith brought a second indictment against Trump for his obstruction of election proceedings on January 6th. On August 14, 2023, Georgia DA Fani Willis brought her indictment against Trump and co-conspirators on RICO conspiracy charges. (Meantime, on April 4, 2023, NY DA Letitia James brought an indictment against Trump on fraud charges relating to his business dealings.)

All these different offices (DOJ, House of Representatives, FBI, U.S. Attorney’s Office in D.C., the DA’s office in Georgia, NY DA’s office, as well as various grand juries in different jurisdictions) have operated separately based on the information they had.

That is how democratic processes and our legal system are meant to work! We can know they are working by observing that they each operate independently based on the evidence before them. We know they are working because of the time it takes them to get their ducks in a row.

Georgia prosecutor Fani Willis’ voluminous and far-reaching indictment on RICO conspiracy charges, points back to the work of the special grand jury that spent seven months investigating the Georgia events and the subsequent regular grand jury that sifted through a massive amount of evidence involving a large array of individuals, recommending indictments.

Similarly, Jack Smith’s more succinct June 8, 2023, and August 1, 2023 indictments show a tremendous amount of work on the part of special and regular grand juries, volumes of testimony, and location of and research into tens of thousands of documents, as well as the tremendous amount of work it takes to research and frame the issues, put it all in order, and write it up into a cohesive, understandable narrative. As someone who has a law degree, I consider Smith’s second indictment to be beyond masterful.

Were there delays? Yes. And those delays were warranted by the uniqueness and sensitivity of the situation: investigating a former sitting president. Does this mean Trump is “privileged”? Is he exempt from investigation, indictment or prosecution? No. Although Trump’s political standing does warrant using extra caution, taking things slow, and making sure they are correct on the facts and the law, he is not exempt from prosecution.

The message we should all get here is that the system does work, it IS working.

While there are those on Trump’s side who will continue to see a Deep State conspiracy under every rock, will continue to cry wolf, claim it’s a witch hunt and the processes and activities of the DOJ are “weaponized” and see the judicial system or the government as inherently evil, and while the rest of us just want to see justice done and wish to be over with Trump, it doesn’t take a legal professional — it only takes an unbiased, objective observer (and a bit of knowledge about the legal system maybe)— to see (even by simply looking at the timeline and considering the volume of information involved) that this IS the legal system at work.

As the D.C. U.S. Attorney Matthew M. Graves said: “I hear everybody kind of wants everything to go faster,” Graves said. “But I think if you kind of look at this in historical perspective — what the department has been able to achieve — I think when people get some distance from it, it will stand as something unprecedented.”

As for Trump, even as he served at the behest of the American system of government and with the support of millions of its citizens, he has continually and repeatedly publicly trashed the system, undermining public trust in our government, our intelligence, justice, legal and election systems. To garner the trust of the disaffected and turn that trust against them and against the very nation that supports their freedoms of speech and association — that is a betrayal of the worst kind.

Trump has always had the freedom to express controversial views and in a democracy, that right is valued. We can perhaps be grateful to him for raising many issues that we were complacent about or that otherwise need to be publicly discussed and (re)considered. But his actions — that encouraged and incited people to become weaponized and engage in insurrection against their own government — stepped over the line of free speech permissible in a democratic state into the arena of criminal activities. They stepped over the line even beyond criminal intent into the arena of crime for the purpose of dividing the nation against itself (encouraging internal civil war), keeping himself in power, and making himself king and despot. Crimes against the state and the people.

Whatever we may think of the faults of our government, we need to remember that all the freedoms and rights we have, including the right to disagree with and speak out against the system, come from that system of government. Justice does not act quickly or precipitately. We do not want to throw out our democratic system just because we aren’t happy with everything it does. Let’s remember JFK’s words: “Ask not what your country can do for you; ask what you can do for your country.”

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