Subterms
State and federal prosecutors are pursuing multiple investigations into Donald J. Trump’s business and political activities, with the cases expected to play out over the coming months. Here is a guide to the major criminal cases involving the former president. Latest development July 18 Mr. Trump has been informed that he could soon face federal […] More
As the criminal indictments of Donald Trump continue to pile up like boxes in a Mar-a-Lago bathroom, the former president’s defenders have settled on a response: They don’t claim their man is innocent of the scores of federal and state charges against him — a tough case to make under the circumstances. Instead they accuse the Biden administration and Democratic prosecutors of politicizing law enforcement and cooking up an insurance policy to protect President Biden, who trails Mr. Trump in some polls about a very possible 2024 rematch.“So what do they do now?” House Speaker Kevin McCarthy asked last week, after Mr. Trump announced that he had received a second target letter from the special counsel Jack Smith, this time over his role in the Jan. 6 attack. “Weaponize government to go after their No. 1 opponent.”Gov. Ron DeSantis, one of the few plausible Republican nominees besides Mr. Trump, warned that the government is “criminalizing political differences.”It’s not only about Mr. Trump; griping about politicized law enforcement has become a cottage industry on the right these days. No sooner did Republicans take back the House of Representatives than they formed a Select Subcommittee on the Weaponization of the Federal Government, which meets regularly to air grievances and grill witnesses about their supposed anti-conservative animus, including Christopher Wray, the (Trump-nominated) F.B.I. director.If you’re feeling bewildered by all the claims and counterclaims of politicization, you’re not alone. Take the F.B.I.’s probe of ties between Russia and the 2016 Trump campaign, which is still being hashed out in the halls of Congress seven years later: In February, Democratic lawmakers demanded an investigation of the investigators who investigated the investigators who were previously investigated for their investigation of a transnational plot to interfere in a presidential election. Got that?But even if the charge of politicized justice is levied by a bad-faith buffoon like Representative Jim Jordan of Ohio, the chairman of the weaponization subcommittee, it is a profoundly important one. There is no simple way to separate politics completely from law enforcement. The Justice Department will always be led by a political appointee, and most state and local prosecutors are elected. If Americans are going to have faith in the fairness of their justice system, every effort must be taken to assure the public that political motives are not infecting prosecutors’ charging decisions. That means extremely clear rules for investigators and prosecutors and eternal vigilance for the rest of us.At the same time, politically powerful people must be held to the same rules as everyone else, even if they happen to be of a different party from those investigating them. So how to distinguish an investigation or prosecution based solely on the facts from one motivated improperly by politics?Sometimes the investigators make it easy by just coming out and admitting that it’s really political. Mr. McCarthy did that in 2015, when he bragged on Fox News that the House Benghazi hearings had knocked a seemingly “unbeatable” Hillary Clinton down in the polls. More recently, James Comer of Kentucky, who heads the House committee that is relentlessly investigating Hunter Biden, made a similar argument about the effect of the committee’s work on President Biden’s political fortunes. (Mr. Comer tried to walk back his comment a day later.)More often, though, it takes some work to determine whether an investigation or prosecution is on the level.The key thing to remember is that even if the subject is a politically powerful person or the outcome of a trial could have a political impact, that doesn’t necessarily mean the action itself is political. To assume otherwise is to “immunize all high-ranking powerful political people from ever being held accountable for the wrongful things they do,” said Kristy Parker, a lawyer with the advocacy group Protect Democracy. “And if you do that, you subvert the idea that this is a rule-of-law society where everybody is subject to equal justice, and at the same time you remove from the public the ability to impose any accountability for misconduct, which enables it to happen again.”In May, Protect Democracy published a very useful report, co-written by Ms. Parker, laying out several factors that help the public assess whether a prosecution is political.First, what is the case about? Is there straightforward evidence of criminal behavior by a politician? Have people who are not powerful politicians been prosecuted in the past for similar behavior?Second, what are top law-enforcement officials saying? Is the president respecting due process, or is he demanding investigations or prosecutions of specific people? Is he keeping his distance from the case, or is he publicly attacking prosecutors, judges and jurors? Is the attorney general staying quiet, or is he offering public opinions on the guilt of the accused?Third, is the Justice Department following its internal procedures and guidelines for walling off political interference? Most of these guidelines arose in the aftermath of the Watergate scandal, during which President Richard Nixon ordered the department to go after his political enemies and later obstructed the investigation into his own behavior. Until recently, the guidelines were observed by presidents and attorneys general of both parties.Finally, how have other institutions responded? Did judges and juries follow proper procedure in the case, and did they agree that the defendant was guilty? Did an agency’s inspector general find any wrongdoing by investigators or prosecutors?None of these factors are decisive by themselves. An investigation might take a novel legal approach; an honest case may still lose in court. But considering them together makes it easier to identify when law enforcement has been weaponized for political ends.To see how it works in practice, let’s take a closer look at two recent examples: first, the federal investigations into Mr. Trump’s withholding of classified documents and his attempts to overturn the 2020 election and, second, the investigation by John Durham into the F.B.I.’s Russia probe.In the first example, the Justice Department and the F.B.I., under Attorney General Merrick Garland, waited more than a year to pursue an investigation of Mr. Trump’s role in the Jan. 6 attack with any urgency — largely out of the fear that they would be seen as politically motivated.With a punctiliousness that has exasperated many liberals, Mr. Garland has kept his mouth shut about Mr. Smith’s prosecutions, except to say that the department would pursue anyone responsible for the Jan. 6 attack. Mr. Garland almost never mentions Mr. Trump by name. And Mr. Smith has been silent outside of the news conference he held last month to announce the charges in the documents case.In that case, Mr. Smith presented a tower of evidence that Mr. Trump violated multiple federal laws. There are also many examples of nonpowerful people — say, Reality Winner — who were prosecuted, convicted and sentenced to years in prison for leaking a single classified document. Mr. Trump kept dozens. Even a federal judge who was earlier accused of being too accommodating to Mr. Trump has effectively signaled the documents case is legitimate, setting a trial date for May and refusing the Trump team’s demand to delay it until after the 2024 election.In the Jan. 6 case, the government has already won convictions against hundreds of people for their roles in the Capitol attack, many involving some of the same laws identified in Mr. Smith’s latest target letter to Mr. Trump.“Prosecutors will hear all sorts of allegations that it’s all political, that it will damage the republic for all of history,” Ms. Parker, who previously worked as a federal prosecutor, told me. “But they have to charge through that if what they’ve got is a case that on the facts and law would be brought against anybody else.”President Biden’s behavior has been more of a mixed bag. He and his advisers are keen to advertise his disciplined silence about Mr. Trump’s legal travails. “I have never once — not one single time — suggested to the Justice Department what they should do or not do,” he said in June. Yet he has commented publicly and inappropriately on both investigations over the years.It’s impossible to justify these remarks, but it is possible to consider them in light of the other factors above and to decide that Mr. Smith’s investigations are not infected with a political motive.Contrast that with the investigation by John Durham, the federal prosecutor appointed by Mr. Trump’s attorney general Bill Barr in 2019 to investigate the origins of the F.B.I.’s Trump-Russia probe.Even before it began, the Durham investigation was suffused with clear political bias. Mr. Trump had repeatedly attacked the F.B.I. over its handling of the Russia probe and called for an investigation, breaching the traditional separation between the White House and the Justice Department. Mr. Barr had also spoken publicly in ways that seemed to prejudge the outcome of any investigation and inserted himself into an investigation focused on absolving Mr. Trump of wrongdoing.Not every investigation or prosecution will offer such clear-cut evidence of the presence or absence of political motivations. But as with everything relating to Mr. Trump, one generally doesn’t have to look far to find his pursuit of vengeance; he has taken to describing himself as the “retribution” of his followers. If he wins, he has promised to obliterate the Justice Department’s independence from the presidency and “go after” Mr. Biden and “the entire Biden crime family.”For the moment, at least, Mr. Trump is not the prosecutor but the prosecuted. And there should be no fear of pursuing the cases against him — especially those pertaining to his attempts to overturn his loss in 2020 — wherever they lead.“If we can’t bring those kinds of cases just because the person is politically powerful, how do we say we have a democracy?” asked Ms. Parker. “Because in that case we have people who are above the law, and they are so far above the law that they can destroy the central feature of democracy, which is elections, in which the people choose their leaders.”Source photograph by pepifoto, via Getty Images.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
The special counsel, Jack Smith, continues to push ahead on several fronts as he assembles evidence about former President Donald J. Trump’s efforts to retain power after the 2020 election.Even as the special counsel, Jack Smith, appears to be edging closer toward bringing charges against former President Donald J. Trump in connection with his efforts to overturn the 2020 election, prosecutors have been continuing to investigate multiple strands of the case.In recent weeks, Mr. Smith’s team has pushed forward in collecting new evidence and in arranging new interviews with witnesses who could shed light on Mr. Trump’s mind-set in the chaotic postelection period or on other subjects important to the inquiry. At the same time, word has emerged of previously undisclosed investigative efforts, hinting at the breadth and scope of the issues prosecutors are examining.In the past few days, a lawyer for Bernard B. Kerik, the former New York City police commissioner who worked closely after the election with Mr. Trump’s lawyer, Rudolph W. Giuliani, gave hundreds of pages of documents to prosecutors working with Mr. Smith.The documents detailed efforts by Mr. Kerik and Mr. Giuliani to identify and investigate allegations of fraud in the election — an issue that is likely to be front and center as prosecutors seek to understand what Mr. Trump may have been thinking when he set in motion various efforts to maintain his grip on power.While it remains unclear precisely when Mr. Smith may seek an indictment of the former president, the clearest signal yet that one was in the offing came last week from Mr. Trump, who announced on social media that he had received a so-called target letter from prosecutors alluding to at least three charges he might face.Those charges included conspiracy to defraud the United States, obstruction of an official proceeding and a Reconstruction-era civil rights statute that makes it a crime for people to conspire to threaten or intimidate others from exercising rights provided to them by federal law or the Constitution.It is not uncommon for prosecutors to keep investigating a criminal case up to the moment an indictment is returned. They can even press forward after charges are filed. But prosecutors are not supposed to use a grand jury of the sort that has been used to investigate Mr. Trump to gather fresh evidence after charges are brought — unless they intend to use the information to seek additional charges.The production of documents by Mr. Kerik, who was convicted of tax fraud but pardoned by Mr. Trump, came even as his lawyer, Timothy Parlatore, was arranging for Mr. Kerik to sit down with Mr. Smith’s prosecutors for a voluntary interview next month. Mr. Giuliani did a similar interview with Mr. Smith’s team in June.Among the previously unknown steps taken by Mr. Smith’s team was an interview conducted about three months ago with Richard P. Donoghue, a former top official in the Justice Department at the end of Mr. Trump’s time in office. NBC News reported on the interview on Monday night, and Mr. Donoghue confirmed on Tuesday that it took place. But he declined to comment on what he discussed with Mr. Smith’s prosecutors.Mr. Smith’s team conducted an interview with Richard Donoghue, the former acting deputy attorney general, who appeared before the House select committee investigating Jan. 6.Jason Andrew for The New York TimesIn late 2021, Mr. Donoghue, who served as the acting deputy attorney general under Mr. Trump, told the House select committee investigating Jan. 6 that he and Jeffrey Rosen, the acting attorney general at the time, repeatedly sought to rebuff Mr. Trump’s claims that the election had been marred by widespread fraud. At one point, Mr. Donoghue testified, Mr. Trump urged him and Mr. Rosen to “just say the election was corrupt and leave the rest to me and the Republican congressmen.”Mr. Donoghue also told the committee that in the waning days of his presidency, Mr. Trump wanted to replace Mr. Rosen with Jeffrey Clark, a loyalist within the Justice Department. Mr. Clark, whose home was searched as part of the election interference inquiry into Mr. Trump, had helped to a draft a letter suggesting that fraud had affected the election results and urging Gov. Brian Kemp of Georgia, a Republican, to call for the creation of a fake slate of electors to the Electoral College declaring that Mr. Trump had won that state, not Joseph R. Biden Jr.Mr. Smith’s team has also reached out to Mr. Kemp seeking an interview, Garrison Douglas, a spokesman for Mr. Kemp, said on Tuesday. But Mr. Douglas declined to say whether the interview, which was reported by The Washington Post, had been merely scheduled or had already taken place.Georgia was a key location in Mr. Trump’s campaign to pressure local officials to throw him the election in their states. Brad Raffensperger, Georgia’s secretary of state, recorded Mr. Trump on a phone call in early January 2021, asking him to “find” sufficient votes for him to win the state.Mr. Smith’s prosecutors have also shown interest in a different line of inquiry in recent months, asking questions about a meeting that Mr. Trump held in February 2020 with officials who briefed him about election security for the upcoming race. The special counsel’s interest in the meeting, where Mr. Trump praised what officials told him were improvements in election security, was reported earlier by CNN.During the meeting, Mr. Trump attacked Joseph Maguire, who was then serving as acting director of national intelligence, for having days earlier given a briefing on Russian interference in the 2016 election to Representative Adam Schiff, Democrat of California, then the chairman of the House Intelligence Committee, and other members of the panel, according to people familiar with the events.Mr. Trump viewed Mr. Schiff as an enemy after he focused extensively on whether Mr. Trump’s campaign had conspired with Russia during his 2016 campaign and he played an instrumental role in his first impeachment.At the meeting, officials from the F.B.I. and other agencies also told Mr. Trump about their preparations to secure the election from interference. Mr. Trump was so taken by what he heard that he wanted to hold a news conference to tout the security of the election, according to a person with knowledge of the talks.Mr. Trump’s apparent excitement at the meeting could shed light on his state of mind and what factual knowledge he had as he spread baseless lies about election fraud months later.In a related line of inquiry, prosecutors under Mr. Smith have asked questions as to when and how federal officials went about securing the election, and how they coordinated those efforts with secretaries of state in various states, according to a person familiar with the matter. Prosecutors have also sought to determine how regularly the White House was briefed on election security measures.Richard Fausset More
For as long as Americans have had partisan political competition, they have hated partisanship itself.By his second term in office, in the mid-1790s, President George Washington faced organized political opponents in the form of Democratic-Republican societies that had spread throughout the country.“There was the Society for the Preservation of Liberty in Virginia, the Sons of St. Tammany and the Democratic Society in New York, the Constitutional Society in Boston, the Society of Political Inquiries, the German Republican Society and the Democratic Society of Pennsylvania in Philadelphia and similar groups scattered in all the states,” the historian Susan Dunn notes in “Jefferson’s Second Revolution: The Election Crisis of 1800 and the Triumph of Republicanism.”In the wake of the Whiskey Rebellion of the early 1790s, Washington blamed these societies for “encouraging dissension and fomenting disorder,” as Dunn puts it. He accused them of spreading their “nefarious doctrines with a view to poison and discontent the minds of the people.” Washington’s farewell plea to avoid faction — “the baneful effects of the spirit of party” — was in many respects a response to the spread of partisan feeling during the last years of his administration.Speaking of which, Thomas Jefferson was an eager partisan. By 1797, he had emerged as the leader of the Democratic-Republican opposition to the Adams administration. In his own words, he hoped to “sink federalism into an abyss from which there shall be no resurrection for it.” And yet he also hoped, in his inaugural address, that Americans would put aside partisanship and unite as one: “We have called by different names brethren of the same principle,” Jefferson wrote. “We are all Republicans, we are all Federalists.”You can find this distaste for faction and longing for unity throughout American history, up to the present. Americans, including their political leadership, have a real and serious distaste for partisanship and political parties even as they are, and have been, as political and partisan a people as has ever existed.I was reminded of all this while reading a recent opinion essay by Senator Joe Manchin of West Virginia, in which he dreamed of a world without politics or partisanship — a world of “common sense solutions” and bipartisan camaraderie.“What is clear to all those who wish to listen is that the overwhelming majority of Americans believe in unity,” Manchin wrote in USA Today. “We are stronger as a nation when we embrace compromise, common sense and common ground.”Manchin was writing in part to explain why he appeared last week at a town hall in New Hampshire sponsored by No Labels, a centrist political group that has railed against partisanship and extremism as a voice of the so-called radical center since 2010. “Both parties follow the mood of the moment,” declared Michael Bloomberg, a former mayor of New York, during the group’s inaugural event in December of that year. “They incite anger instead of addressing it — for their own partisan interests.”No Labels is still around, and its diagnosis of American politics still rests on the idea that the parties are too partisan — each captured by the most extreme members of its coalition. “These partisan extremes are in the business of feeding political division and dysfunction every day,” wrote Manchin, whose appearance at the town hall came amid speculation that he might make a third-party presidential run under the No Labels banner. “They attack our institutions, whether it is our Capitol, our elected leaders or our justice system, without caring about the lasting damage it does.”There is something deeply strange, if not outright bizarre, about a narrative that puts the Jan. 6 assault on the Capitol in the same category of political action as Black Lives Matter protests, the liberal criticism of the Supreme Court or whatever it is that Manchin has in mind. Stranger still is that he does this while calling, with all apparent sincerity, for more dialogue: “I believe there is a better way to govern and lead this nation forward that embraces respectful discourse, debate and discussion.”We could spend the rest of our time here on the way that Manchin’s call for debate excludes tens of millions of Americans with passionate, informed but less popular views that offend the sensibilities of centrist politicians. Or we could focus on the fact that much of No Labels’ actual advocacy appears to be little more than a stalking horse for an unpopular agenda of benefit cuts and fiscal retrenchment.For now, though, I want to highlight the fact that there’s no way to realize this long-running fantasy of politics without partisanship. Organized conflict is an unavoidable part of democratically structured political life for the simple reason that politics is about governing and governing is about choices.For any given choice, there will be proponents and critics, supporters and opponents. Political participants will develop, in short order, different ideas about what is and what should be, and they will gather and work together to make their vision a reality. Soon enough, through no one’s precise design, you have political parties and partisanship. This, in essence, is what happened to the United States, which was founded in opposition to faction but developed, in less than a decade, a coherent system of organized political conflict.That’s not to say our political system is perfect. Far from it. But if there is a solution, it will involve an effort to harness and structure our partisanship and polarization through responsive institutions, not pretending it away in favor of a manufactured and exclusionary unity.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
Bret Stephens: Hi, Gail. We skipped our conversation last week because I was in Ukraine. But even from there, it was hard to miss the news about Donald Trump’s most recent pending indictment. Your thoughts?Gail Collins: Bret, I’m in awe of your Ukraine expedition but slightly depressed to realize that Americans can’t escape Trump, even when they’re at a hospital in Irpin.Bret: Trump returning to the White House and pulling the plug on American support for Kyiv is the second-biggest threat to Ukraine, after Vladimir Putin. And did you hear Trump call the Chinese dictator Xi Jinping both “smart” and “brilliant”?But back to the latest potential indictment ….Gail: Criminal-justice wise, I think it’s very important to assure the country that nobody, including a president, can just get away with urging an angry crowd to attack the Capitol.Bret: Especially a president.Gail: But politically, I have a terrible suspicion that indictment will help him in the Republican primaries. So sad the law-and-order party has apparently lost interest in the law — or, for that matter, order — when it doesn’t suit their purpose.Bret: If there were truth in advertising, Republicans would have to rename themselves the Opposite Party. They were the party of law and order. Now they want to abolish the F.B.I. They were the party that revered the symbols of the nation. Now they think the Jan. 6 riots were like a “normal tourist visit.” They were the party of moral character and virtue. Now they couldn’t care less that their standard-bearer consorted with a porn star. They were the party of staring down the Evil Empire. Now they’re Putin’s last best hope. They were the party of free trade. Now they’re protectionists. They were the party that cheered the Supreme Court’s 2010 Citizens United decision, which argued that corporations had free speech. Now they are being sued by Disney because the company dared express an opinion they dislike. They were the party that once believed that “family values don’t stop at the Rio Grande,” as George W. Bush put it. Now some of them want to invade Mexico.Gail: Woof …Bret: So that makes me want to ask you about your column last week. What’s not to like about No Labels?Gail: Bret, gonna skip my normal diatribe on the evils of Joe Lieberman, the spokesman-symbolic-head of No Labels, which is running around the country trying to get a presidential line on ballots in a bunch of states.Bret: Lieberman may be our one irreconcilable difference. I love the guy.Gail: My bottom line is that third parties — even those led by people far better than Mr. L. — are a danger to the American democratic system. You start a party that makes a big deal out of … helping hummingbirds. Tell voters who don’t love either of the two regular candidates that they can Vote Hummer and feel good. You won’t win the election, but you can throw everything into chaos. In some states, that little shift could be enough to bestow victory somewhere you’d never have wanted it to go. Say the Crow Coalition.Bret: I’d be opposed to No Labels if I were convinced that all they will do is take votes from Joe Biden and throw the election to Trump. But that depends on who takes the No Labels slot: If it’s a former Democrat, it probably hurts Biden. If it’s a former Republican, it could hurt Trump even more.Gail: Maybe. I’d rather just make people pick between the two real possibilities — each of them representing a broad coalition and certainly offering a stark choice. I don’t like plotting to win by cluttering up the ballot.Bret: But the main thing, Gail, is that I need a party I can vote for. And I think the feeling is shared by a growing fraction of voters who might be center-left or center-right but are increasingly appalled by progressive Democrats and reactionary Republicans. So any party that represents our views is good for democracy, not a threat to it.Gail: No, no Bret. Even if you vote for a third party that perfectly represents your views — or at least your view on a favorite issue — if it isn’t going to win, you’re throwing away your vote. A vote for the Green Party, for instance, is a vote that Biden would probably have gotten otherwise. Which means the Green Party is helping Trump.Bret: I agree — mostly. I used to vote exclusively for Republicans, even though I disagreed on a lot of social issues. Now I vote mostly for Democrats, even though I disagree on a lot of economic issues. But I’ve never before felt such a level of disaffection with both parties, which makes No Labels … intriguing. We’ll see if it goes anywhere.Gail: OK, I’ve ranted enough. Let’s talk about something important that no one ever wants to talk about: Congress. The big defense budget is being bogged down by some House Republicans who want to include right-wing social issues that everyone knows the Senate will never accept. Even the normal military promotions are stalled by one Republican Senator, Tommy Tuberville of Alabama, who wants to eliminate travel aid to enlisted women seeking abortions.These are all supposed to be your guys — explain what we can do about all this.Bret: Well, this is just another way in which I’m totally appalled by so many of today’s Republicans. They had no trouble effectively freezing and even reducing military spending for the sake of their debt-ceiling antics, despite claiming to be seriously concerned by the military threat from China (or Iran or Russia). And now they’re committing the exact sin they routinely accuse liberals of doing: injecting a partisan social agenda into questions of national security.But Gail, Congress is too depressing. Let’s talk about the actors’ and writers’ strikes. Should we join them, at least morally speaking?Gail: I see two big things about the strikes. One is complicated and important — how do you compensate the creative talent when movies and TV are available around the clock via streaming?The other is more emotional and understandable: The creative talent is scrambling to get adequate pay while the top guys — the producers and company executives — are making a mountain of money from the current system.In a word, I’m on the writer-actor side. How about you?Bret: Don’t tell anyone this, but I am, too. I think the strike is about more than the particulars of how the so-called creative class gets paid. It’s really about whether or not there can be a creative class at all.My working assumption is that within 20 years, if not much sooner, A.I. will be able to write, direct and act (via computer-generated images that are indistinguishable from real people) movies and TV shows. It will write credible novels and news stories and opinion columns, and compose film scores and pop music. That may not really affect me, if only because I’ll be close to retirement. But it will mean a growing number of creative endeavors will no longer easily find meaningful vocational outlets. It will amount to a kind of material degradation to human civilization that may prove irreversible.Gail: Grab a picket sign!Bret: Never thought I’d be a fan of any form of organized labor, but there it is. And it’s also a good occasion to praise President Biden for trying to create some shared ethical guidelines for the development of A.I.Gail: I’m the last one to make an informed prediction on anything relating to science and technology, but you’re right, it’s good to know we’ve got some principled leaders trying to figure things out.Bret: Even though the depressing reality is that humanity doesn’t have a particularly good track record of controlling new technologies, particularly when they can make some people richer or other people more powerful. The historian in me says the same might have been said with every past transformative technology, from the wheel to the printing press to nuclear energy. Maybe artificial intelligence will follow the same path. But A.I. is also the first technology I can think of that doesn’t supplement human creativity, but rather competes with it.Gail: And gee, Bret, we’ve agreed about almost everything this week — including organized labor! Next week I swear we’ll talk about something that stirs up a fight.Bret: I’m sure I’ll have strong views about the Oppenheimer film once I’ve seen it. Have I ever mentioned that I think Harry Truman was completely right to drop the bombs?Gail: We can compare thoughts then. Hope you get a chance to see “Oppenheimer” soon — although I should warn you it did feel as if three hours was a long time to contemplate atomic warfare. In an old theater with squeaky seats.I’m most certainly not an expert on World War II, but I hate the idea of killing something like 200,000 people to make a point about our nation’s breakthrough in technological firepower.Bret: History is filled with counterfactuals. I wonder how many American fighting men, including my grandfather — and, for that matter, how many Japanese soldiers and civilians — would have been killed if we had invaded the Japanese home islands the way we had to take Iwo Jima or Okinawa. I think the aggregate number would have been far higher.Gail: I can see that our ongoing conversation about this is going to be hard and deep, Bret. I’ll bring wine. And maybe we should also make it a point to see “Barbie” before we chat again. We can talk about global destruction and mass market capitalism at the same time.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
WASHINGTON — A man is running to run the government he tried to overthrow while he was running it, even as he is running to stay ahead of the law.That sounds loony, except in the topsy-turvy world of Donald Trump, where it has a grotesque logic.The question now is: Has Trump finally run out of time, thanks to Jack Smith, who runs marathons as an Ironman triathlete? Are those ever-loving walls really closing in this time?Or is Smith Muellering it?We were expecting an epic clash when Robert Mueller was appointed in 2017 as a special counsel to head the investigation into ties between Trump’s campaign and Russia and his potential obstruction of justice. It was the flamboyant flimflam man vs. the buttoned-down, buttoned-up boy scout.Mueller, who had been a decorated Marine in Vietnam, was such a straight arrow that he never even deviated to wear a blue shirt when he ran the F.B.I.Amid the Trump administration chaos, Mueller ran a disciplined, airtight operation as special counsel, assembling a dream team of legal talent. But regarding obstruction of justice, the final report was flaccid, waffling, legalistic.Now, Mr. Smith goes to Washington. (That classic movie remembers a time when politicians got ashamed when they were caught doing wrong. How quaint.)This special counsel is another straight arrow trying to deal with a slippery switchblade: In a masterpiece of projection, Trump has been denouncing Smith as a “deranged prosecutor” and “a nasty, horrible human being.” Trump has been zigzagging his whole life and now, unbelievably, he’s trying to zigzag back into the White House, seemingly intent on burning down the federal government and exacting revenge on virtually everyone.So it will be interesting to see what the top lawyer with the severe expression makes of the bombastic dissembler. Smith seems like a no-nonsense dude who works at his desk through lunch from Subway while Trump is, of course, all nonsense, all the time.Smith has a herculean task before him. He must present a persuasive narrative that Trump and his henchmen and women (yes, you, Ginni Thomas) were determined to pull off a coup.His letter telling Trump he’s a target of the Jan. 6 investigation reportedly does not mention sedition or insurrection, which leaves people wondering exactly what Trump will be charged with.Of all the legal troubles Trump faces, this is the case that makes us breathe, “Finally,” as Susan Glasser put it in The New Yorker. It is, as she wrote, the heart of the matter.The Times reported that the letter referred to three criminal statutes: conspiracy to defraud the government; obstruction of an official proceeding; and — in a surprise move — a section of the U.S. code that makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” Initially, the story explained, that last statute was a tool to pursue the Ku Klux Klan and others who engaged in terrorism after the Civil War; more recently it has been used to prosecute cases of voting fraud conspiracies.On an Iowa radio show on Tuesday, Trump warned it would be “very dangerous” if Smith jailed him, since his supporters have “much more passion than they had in 2020.”A May trial date has already been set in Smith’s case against Trump for retaining classified documents — despite Trump’s effort to punt it past the election. And Smith should have an ironclad case on Trump defrauding America because defrauding is what he has been doing since the cradle — lying, cheating and lining his pockets, making suckers of nearly everyone while wriggling out of trouble.Meanwhile, Ron DeSantis, Trump’s closest Republican challenger, defended Trump on Russell Brand’s podcast Friday, dismissing the idea that there was an overt effort to upend the 2020 election.“The idea that this was a plan to somehow overthrow the government of the United States is not true,” DeSantis said, “and it’s something that the media had spun up just to try to basically get as much mileage out of it and use it for partisan and political aims.”DeSantis seems almost as delusional as Trump when he denies what we saw before our eyes in the weeks after the election.Just ask the Georgia officials who were pressured by Trump to “find 11,780 votes” or the police officers who were injured on Jan. 6. Remember the fake electors in Michigan and Georgia, among other places, and the relentless pressure on Mike Pence to invalidate the election results?Trump ultimately might not be charged with staging an insurrection or sedition. And that would be a shame. For the first time, a president who lost an election nakedly attempted to hold onto power and override the votes of millions of Americans.If that isn’t sedition, it’s hard to figure what is.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More
The American legal system is on the cusp of a remarkable historical achievement. In real time and under immense pressure, it has responded to an American insurrection in a manner that is both meting out justice to the participants and establishing a series of legal precedents that will stand as enduring deterrents to a future rebellion. In an era when so many American institutions have failed, the success of our legal institutions in responding to a grave crisis should be a source of genuine hope.I’m writing this newsletter days after the Michigan attorney general announced the prosecution of 16 Republicans for falsely presenting themselves as the electors qualified to vote in the Electoral College for Donald Trump following the 2020 election. That news came the same day that the former president announced on Truth Social that he’d received a so-called target letter from Jack Smith, the special counsel appointed by Attorney General Merrick Garland to investigate Trump’s efforts to overturn the election. The target letter signals that the grand jury investigating the Jan. 6, 2021, attack on the Capitol is likely to indict Trump, perhaps any day now.On Monday, a day before this wave of news, the Georgia Supreme Court rejected a desperate Trump attempt to disqualify the Fulton County district attorney Fani Willis from prosecuting Trump and to quash a special grand jury report about 2020 election misconduct. Trump’s team filed their petition on July 13. The court rejected it a mere four days later. Willis can continue her work, and she’s expected to begin issuing indictments — including potentially her own Trump indictment — in August, if not sooner.Presuming another Trump indictment (or more than one) is imminent — or even if it is not — the legal response to Jan. 6 will continue. But to truly understand where we are now, it’s important to track where we’ve been. If you rewind the clock to the late evening of Jan. 6, 2021, America’s long history of a peaceful transfer of power was over, broken by a demagogue and his mob. To make matters worse, there was no straight-line path to legal accountability.Prosecuting acts of violence against police — or acts of vandalism in the Capitol — was certainly easy enough, especially since much of the violence and destruction was caught on video. But prosecuting Trump’s thugs alone was hardly enough to address the sheer scale of MAGA misconduct. What about those who helped plan and set the stage for the insurrection? What about the failed candidate who set it all in motion, Donald Trump himself?Consider the legal challenges. The stolen election narrative was promulgated by a simply staggering amount of defamation — yet defamation cases are difficult to win in a nation that strongly protects free speech. Trump’s legal campaign was conducted by unethical lawyers raising frivolous arguments — yet attorney discipline, especially stretching across multiple jurisdictions, is notoriously difficult.The list continues. Trump’s team sought to take advantage of ambiguities in the Electoral Count Act, a 19th-century statute that might be one of the most poorly written statutes in the entire federal code. In addition, Trump’s team advanced a constitutional argument called the independent state legislature doctrine that would empower legislatures to dictate or distort the outcomes of congressional and presidential elections in their states.There’s more. When we watched insurrectionists storm the Capitol, we were watching the culminating moment of a seditious conspiracy, yet prosecutions for seditious conspiracy are both rare and difficult. And finally, the entire sorry and deadly affair was instigated by an American president — and an American president had never been indicted before, much less for his role in unlawfully attempting to overturn an American election.Now, consider the response. It’s easy to look at Trump’s persistent popularity with G.O.P. voters and the unrepentant boosterism of parts of right-wing media and despair. Does anything make a difference in the fight against Trump’s lawlessness and lies? The answer is yes, and the record is impressive. Let’s go through it.The pro-Trump media ecosphere that repeated and amplified his election lies has paid a price. Fox News agreed to a stunning $787 million defamation settlement with Dominion Voting Systems, and multiple defamation cases continue against multiple right-wing media outlets.Trump’s lawyers and his lawyer allies have paid a price. Last month the U.S. Court of Appeals for the Sixth Circuit upheld the bulk of a sanctions award against Sidney Powell and a Mos Eisley cantina’s worth of Trump-allied lawyers. A New York State appellate court temporarily suspended Rudy Giuliani’s law license in 2021, and earlier this month a Washington, D.C., bar panel recommended that he be disbarred. Jenna Ellis, one of Guiliani’s partners in dangerous dishonesty and frivolous legal arguments, admitted to making multiple misrepresentations in a public censure from the Colorado Bar Association. John Eastman, the former dean of Chapman University’s law school and the author of an infamous legal memo that suggested Mike Pence could overturn the election, is facing his own bar trial in California.Congress has responded to the Jan. 6 crisis, passing bipartisan Electoral Count Act reforms that would make a repeat performance of the congressional attempt to overturn the election far more difficult.The Supreme Court has responded, deciding Moore v. Harper, which gutted the independent state legislature doctrine and guaranteed that partisan state legislatures are still subject to review by the courts.The criminal justice system has responded, securing hundreds of criminal convictions of Jan. 6 rioters, including seditious conspiracy convictions for multiple members of the Oath Keepers and the Proud Boys. And the criminal justice system is still responding, progressing steadily up the command and control chain, with Trump himself apparently the ultimate target.In roughly 30 months — light speed in legal time — the American legal system has built the case law necessary to combat and deter American insurrection. Bar associations are setting precedents. Courts are setting precedents. And these precedents are holding in the face of appeals and legal challenges.Do you wonder why the 2022 election was relatively routine and uneventful, even though the Republicans fielded a host of conspiracy-theorist candidates? Do you wonder why right-wing media was relatively tame after a series of tough G.O.P. losses, especially compared to the deranged hysterics in 2020? Yes, it matters that Trump was not a candidate, but it also matters that the right’s most lawless members have been prosecuted, sued and sanctioned.The consequences for Jan. 6 and the Stop the Steal movement are not exclusively legal. The midterm elections also represented a profound setback for the extreme MAGA right. According to an NBC News report, election-denying candidates “overwhelmingly lost” their races in swing states. It’s hard to avoid the conclusion that the relentless legal efforts also had a political payoff.And to be clear, this accountability has not come exclusively through the left — though the Biden administration and the Garland Justice Department deserve immense credit for their responses to Trump’s insurrection, which have been firm without overreaching. Multiple Republicans joined with Democrats to pass Electoral Count Act reform. Both conservative and liberal justices rejected the independent state legislature doctrine. Conservative and liberal judges, including multiple Trump appointees, likewise rejected Trump’s election challenges. Republican governors and other Republican elected officials in Arizona and Georgia withstood immense pressure from within their own party to uphold Joe Biden’s election win.American legal institutions have passed the Jan. 6 test so far, but the tests aren’t over. Trump is already attempting to substantially delay the trial on his federal indictment in the Mar-a-Lago case, and if a second federal indictment arrives soon, he’ll almost certainly attempt to delay it as well. Trump does not want to face a jury, and if he delays his trials long enough, he can run for president free of any felony convictions. And what if he wins?Simply put, the American people can override the rule of law. If they elect Trump in spite of his indictments, they will empower him to end his own federal criminal prosecutions and render state prosecutions a practical impossibility. They will empower him to pardon his allies. The American voters will break through the legal firewall that preserves our democracy from insurrection and rebellion.We can’t ask for too much from any legal system. A code of laws is ultimately no substitute for moral norms. Our constitutional republic cannot last indefinitely in the face of misinformation, conspiracy and violence. It can remove the worst actors from positions of power and influence. But it cannot ultimately save us from ourselves. American legal institutions have responded to a historical crisis, but all its victories could still be temporary. Our nation can choose the law, or it can choose Trump. It cannot choose both. More
Hundreds of Jan. 6 rioters have been charged with obstruction of an official proceeding, but the charge, which could be applied to former President Donald J. Trump, has come under scrutiny.Well before the prosecutors investigating Donald J. Trump’s efforts to overturn the 2020 election laid out for him three laws that could be the basis for an indictment, one of the statutes, covering obstruction of an official proceeding, had already been used against — and challenged by — scores of rioters who took part in the storming of the Capitol.The legal questions around applying the obstruction law to the attack on Jan. 6, 2021, have spawned a pair of federal appeals court cases — and could even end up in front of the Supreme Court. But while it might seem risky for the special counsel, Jack Smith, to include the obstruction count in an indictment before the attacks against it are resolved, the way in which the law is written could make it almost uniquely suited to charging Mr. Trump.The count — formally known in the penal code as 18 U.S.C. 1512(c)(2) — makes it a crime to “corruptly” obstruct, impede or interfere with any official government proceeding, and carries a maximum penalty of 20 years in prison.In more than 300 Jan. 6 riot cases, prosecutors have used the law to describe the central event that day: the disruption of the Electoral College vote certification that was taking place inside the Capitol during a joint session of Congress.In general, defendants have been charged with the obstruction count when prosecutors believe they have evidence that their actions on Jan. 6 played some role in stopping the certification process or in chasing lawmakers away from their duties. But as soon as the charge began to be used in Capitol riot cases, defense lawyers started arguing that the government was stretching the statute far beyond its intended scope.By its plain text, the measure seemingly has nothing to do with mobs or riots. It was passed into law in 2002 as part of the Sarbanes-Oxley Act, which sought to clamp down on corporate malfeasance, and was initially meant to prohibit things like shredding documents or tampering with witnesses in congressional inquiries.In April, the U.S. Court of Appeals for the District of Columbia upheld the use of the obstruction count, even while acknowledging that it had never been applied in quite the way it had been in the Jan. 6 cases.The decision by the three-judge panel — which included two Trump appointees — largely homed in on just one of the complaints against the statute. The panel said that any obstruction committed by rioters at the Capitol did not have to relate exclusively to the law’s original prohibitions against tampering with witnesses or destroying documents.But the panel reserved judgment on a separate challenge to the law, one involving the definition of the word “corruptly.” That issue could relate more directly to Mr. Trump, should he be charged with the count.In its arguments to the appeals court, the government said that acting corruptly should be broadly construed to include all sorts of unlawful behavior, such as destroying government property or assaulting police officers. The defense argued for a much narrower interpretation, seeking to define the term as acting illegally to procure something to directly benefit oneself.This challenge is at the center of the second appeals court case in Washington and could be decided any day now. It could also affect how the law applies to Mr. Trump: Unlike many of the rioters on the ground who stood to gain little for themselves by stopping the certification process on Jan. 6, Mr. Trump stood to gain something of immense personal value that day: a victory in the election.While it remains unknown how Mr. Smith might structure an obstruction charge, he could opt to use it to describe the pressure campaign that Mr. Trump and some of his allies mounted against Vice President Mike Pence. The president and lawyers close to him like John Eastman sought to strong-arm Mr. Pence into using his role in overseeing the election certification on Jan. 6 to unilaterally toss the race to Mr. Trump.Last year, the House select committee investigating Jan. 6 urged that Mr. Trump be charged with obstruction of an official proceeding among other counts, including conspiracy to defraud the United States and incitement to insurrection. But long before those recommendations were made, judges and lawyers involved in Jan. 6 criminal cases were exploring whether Mr. Trump’s behavior — specifically his attempts to pressure Mr. Pence — violated the obstruction count.In November 2021, for example, at an early hearing discussing the validity of the charge, James Pearce, a prosecutor who has handled many of the Justice Department’s thorniest Capitol riot legal issues, argued in court that if someone urged Mr. Pence to break the law on Jan. 6, it could qualify as a corrupt act of obstruction. While Mr. Pearce never mentioned Mr. Trump by name, it was clear he was discussing the former president’s attempts to get Mr. Pence to do his bidding that day.“One of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Mr. Pearce said.Mr. Smith’s election interference inquiry is not the first time prosecutors have used 1512(c)(2) as the basis for scrutinizing Mr. Trump. The provision was also instrumental in the investigation by Robert S. Mueller III, the special counsel who examined whether Mr. Trump obstructed efforts to look for ties between Russia and his 2016 presidential campaign.In 2018, William P. Barr, before he got the job as Mr. Trump’s attorney general, wrote a memo to top officials in the Justice Department complaining that Mr. Mueller’s use of the obstruction count was “premised on a novel and legally insupportable reading of the law.”Mr. Mueller, Mr. Barr wrote, was “proposing an unprecedented expansion of obstruction laws” in an effort to find a way to charge Mr. Trump for actions that he had the constitutional power to carry out. (Mr. Mueller never sought to charge Mr. Trump.)Some legal experts have said that Mr. Trump could mount an attack against the obstruction charge, if it is brought by Mr. Smith, by arguing that he truly believed he had been robbed of victory by fraud in the election and, therefore, could not be accused of having acted corruptly.But last week, a senior federal judge in Washington, Royce C. Lamberth, found a high-profile Jan. 6 rioter guilty of the obstruction count despite the defendant’s repeated claims that he believed the election had been stolen.Judge Lamberth’s reasoning — which came in the case of Alan Hostetter, a former police chief turned yoga instructor from Southern California — made no mention of Mr. Trump’s potential criminal exposure, but it could set a legal basis for refuting any attempts by the former president to get around the law’s references to “corruptly.”“Even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing,” Judge Lamberth wrote. “Belief that your actions are serving a greater good does not negate consciousness of wrongdoing.” More
