Correct but Ignores Critical Factors

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It would seem as though the Select Committee’s commitment and unbounded speed have sent a current through the legal system everywhere. Along with the Committee’s speed, the flip of the calendar acts pushes prosecutors along, knowing that each week closer to November allows Trump to scream about it being entirely political, impacting any jury pool.

To that end, the panel on Morning Joe – a routinely derided, but undervalued,  show, in this writer’s opinion – discussed the many cases that seem to be suddenly accelerating to Trump’s detriment and that Georgia seems to pose the most immediate threat, as of right now. Mika smartly observed:

“You know, that phone call gets worse with time, if it’s possible. I mean, it was bad when we first heard it, but hearing him say, you know, you can simply say that you recalculated — I mean, my God, as corrupt as it comes.”

And the invaluable Jonathan Lemire said:

“The investigation into whether or not President Trump tried to overturn his defeat in that state — spoiler alert, he did, so I think we got that.

That phone call obviously is going to be the center of this. He hits the specific vote total that he needed to overturn the result, he’s leaning on a fellow Republican, secretary of state Brad Raffensperger, there. A lot of legal experts have suggested that this case poses more legal peril to him than some of the others circulating, those in New York, there’s an indication Washington, D.C. might investigate his words leading up to the insurrection.

All true.

Simply calling a Secretary of State and demanding he find just the right amount of votes needed for you to win, then berating and – at times – seeming to reference vague threats is not as “corrupt as it gets” but it’s close enough that I agree.

But there are problems that the crew on Morning Joe fail to cover, indeed near everyone fails to cover. These problems should not preclude charges where warranted, and that point cannot be repeated enough, but prosecutors must take many factors into consideration when charging any case and those same factors apply to a case against Trump.

First among them is the likelihood of getting a conviction. In a normal case, this would not seem to be a problem in this matter, though I have checked the Georgia and federal statutes and they are a tight fit. But presuming that the behavior fits the statute, the prosecutors still have to look at the likelihood of getting a conviction and a conviction requires twelve completely unbiased opinions from people who have heard about the case, heard about the defendant, and certainly formed some sort of opinion about the defendant generally, if not in this case, and could put all that aside when hearing the evidence. In other words, the prosecutor will be gambling upon having anywhere from 4-9 MAGA-type voters on the jury and that every single one of them would vote to convict him in a society in which 80% of Republicans believe Trump won the election. It only takes one to hang the jury.

Second, the judge. We saw what a judge can do in the Rittenhouse case. If the judge is a Republican-appointed judge, upset about the case even being filed by the Democrats, we can expect the exact same type of pre-trial rulings that we saw in Wisconsin, crippling pre-trial rulings. The public tends to be a little too cynical regarding judges. Most judges, by far, are decent men and women who take their jobs with the utmost professionalism and do not allow personal biases to enter the courtroom. Most judges would not allow Trump’s campaign song to come on their phone right under the microphone as we saw in Wisconsin. But the prosecutor’s office will not know the assigned judge until the case is filed and they have to consider who they might get.

Third, presuming the prosecution is able to secure a guilty verdict, the appeal then poses the exact same problem. Georgia is in the 11th Appellate District, the same that comprises Alabama and Florida. It is certainly not the most conservative district in the country (that would be the 5th, with TX, LA, MS). But it is not the 9th or 2nd Circuit, either. All it takes is two judges committed to finding an error to at least remand the case for a new trial and it is sent back down. And then the SCOTUS, a dynamic we need not even discuss because we all know it.

If a prosecutor makes a mistake anywhere along the way or is simply hindered by reality at any point, Trump will take a victory lap that he will use to buttress as yet more validation of him. Whereas most people who are on the receiving end of a criminal charge “lose” in one form or another, even if found not guilty, Trump would use anything but a guilty verdict as proof that he is always right and the war against him is always contrived, always political, and always wrong.

For what it’s worth, I think he should be charged. Sometimes prosecutors will charge a “hard case” on one basis alone; “This guy keeps getting away with everything and needs to go through the process, at least, to appreciate that there are limits.” This happens in communities throughout the country and a good prosecutor is forced to take in such considerations.

As a total aside, the person who has been lost in all this is another powerful Republican on tape talking to the Georgia Secretary of State’s office, Sen. Lindsay Graham, who asked about means to get rid of votes due to problems with “matching signatures.” USA Today’s Fact Check said it was “partly false” to say that Graham asked the Georgia Secretary of State to dump Biden votes. Graham asked about matching signature verifications as a means to lower vote totals and though the specific words may be neutral and it would be extremely difficult to prosecute Graham, it is Graham’s phone call that is more disturbing to me because Graham seemed – with neutral language – to be specifically directing Raffensberger as to how to go about dumping enough ballots to make Trump the winner, simply verify enough signatures.

I don’t know about you, but I cannot think of a more subjective way to swing an election than through signature verifications. As every reader can relate, most of our signatures vary depending on time, the space allotted, the type of paper, and whether we are in a hurry. Graham might have been meticulously careful in the words he used, but with respect to intent, his phone call seems every bit as problematic as Trump’s. Why is a South Carolina senator even calling the Georgia Secretary of State?

In summary, the assumption that Georgia represents the most powerful case against Trump is correct from an evidentiary point of view. And yet, having looked at the criminal statutes, which are beyond the scope here, it is a very tight fit for criminal prosecution. But it is the jury problem and whether or not the prosecutor can realistically get a conviction that will most dominate discussion in the prosecutor’s office. This is as it should be and happens in every case. The supervising attorney, in this case likely the U.S. Attorney for that district of Georgia (This should not be a decision made at Main Justice in my opinion), will take in all these factors in deciding to bring charges. Or, the exact same process will occur in the Fulton Co. D.A.’s office, the office that we know has convened a grand jury. (The U.S. Attorney may have convened a grand jury, too – we don’t know).

As deeply disturbing as that phone call may be, and it is chilling, it may not represent the most “obvious” case with which to prosecute Trump.

 

 



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