Notices by I moved to Mastodon.social (teri_kanefield@law-and-politics.online), page 8

If you missed my weekend blog post (although wait: Is Monday July 3 still a weekend 🤔 )

This one is about what one former Republican calls "The Conspiracy To End America," why Trump's influence in the Republican Party is growing as his legal peril increases, and the Supreme Court.

https://terikanefield.com/what-a-former-republican-calls-the-conspiracy-to-end-america/

Hi, Mastodon,

So my technical support staff (my husband) talked me into doing something new.

Well, actually something I started but stopped: making videos of my content.

I stopped because I hate how I look and sound, but he said, "Just do the talking and I'll do the rest."

So I talked. He did the rest.

I haven't even looked at the final product. What trust, right?

https://www.youtube.com/watch?v=Jk7C6aev8lU

I know some people prefer listening to reading.

(The second video is now posted as well)

If you're new to Mastodon, welcome!

@feditips is helpful if you have questions.

FDR's New Deal was popular.

In 1935, a conservative Supreme Court started systematically overturning FDR's New Deal Legislation.

As I wrote in my biography of FDR, "Roosevelt knew if he didn't come up with a solution, the Supreme Court would undo every part of his New Deal."

What changed?

The 1936 election and
"The Switch in Time that Saved Nine."

Read what Garland alongside the article.

The article offers these reasons for the tactic of starting at the bottom (or the rim) and working upward (or inward):

🔹 A wariness about appearing partisan
🔹institutional caution
🔹clashes over how much evidence was sufficient to investigate the actions of Trump

These three things basically say the same thing. I can phrase it another way. . .

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The FBI immediately had evidence that Trump was being the insurrection, but they worried that it wasn't ENOUGH evidence to open an investigation.

Trump this week said that the moment he is reelected, he will appoint a special counsel to "go after" the Bidens.

See how that looks?

Here is what Merrick Garland said on January 5, one year after the insurrection, when he explained what the department was doing:

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Rephrased:

"If we launch investigation of Trump himself and we don't have enough evidence to convict, it could take years to get all of the evidence."

What then? An investigation against Trump himself drags out for years, in public.

Instead, work quietly up the ladder and gather the evidence.

Right. This doesn't "appear" partisan.

There are three arguments AGAINST Garland's approach. . .

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It would be much harder to get witnesses to flip against him.

Another problem is that it smacks a bit of "Show me the man and I'll show you the crime."

Finally, making sure that an investigation doesn't appear partisan is not a bad thing.

"Appearing partisan" undermines the entire investigation in the public mind.

The DOJ (and prosecutors) has enormous power.

Using that power cautiously isn't a bad thing.

On the other hand, being like Trump is bad.

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This is the question:

#1: What is the best way to gather the evidence? Is it better to start with the bottom and work up, building the case?

#2: Or is it better to start with the person you think is guilty (even though you don't have the evidence you need to prove it) and search for more evidence?

There are lots of problems with #2.

The first problem should be obvious given the way that Trump is currently using the prosecutions against him to solidify his hold on the GOP . . .

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(1) Trump, if president, will appoint a DOJ who will set aside caution and go straight for Biden. So Garland should "fight fire with fire."

(2) Going straight for Trump would have "reassured" Trump critics.

(3) The insurrection was serious enough to risk starting with Trump.

All of these arguments are flawed (for the reasons I talked about in my FAQs.)

One thing the article doesn't mention as a factor . . .

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. . . it requires search warrants, seizing phones and analyzing the contents.

Then, 2 years later, Trump announces his bid for president and says, "They started 2 years ago and still they don't have anything on me."

Because these investigations can take two years.

Surely the strength of the indictment against Trump in the special master's case shows that you better have the evidence when you file an indictment.

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As someone in the comments just said, the DOJ used the same tactics that it uses in taking down mafia kingpins.

The evidence against the guy at the top who insulates himself is hard to get.

If they started with Trump the evidence would have been even HARDER to get.

Imagine this scenario:

March 2021: Garland announces an investigation into Trump.

Getting the evidence requires piercing attorney-client privilege and getting prominent Republicans to testify against Trump. . .

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Starting from the bottom and working up allows the prosecutors to test legal theories. Some of these statutes have rarely been used.

They can build their court rulings.

Oh, and by the way, the Post said this:

We have evidence that prosecutors asked questions about Trump's inner circle in early January, 2022: https://www.washingtonpost.com/national-security/trump-jan-6-investigation-garland/2022/01/15/e55a3ca2-7555-11ec-b202-b9b92330d4fa_story.html

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Quietly building up the evidence outside of the public view so as not to appear partisan and further damage democratic institutions does not seem to me to be a bad thing.

The article also makes clear that there were differences of opinion within the DOJ.

That means you will always have someone who thought the boss was doing it wrong.

That means you will always have someone willing to say, "The boss was doing it wrong."

10/

Since everyone is going to get all unglued about this, let's look at it carefully.

It tells us everything we knew all along but uses language that will distress people.

In fact, if we compare it to Merrick Garland's statements about how (and why) the DOJ adopted it's strategy, the article simply repeats what Garland said, changing his language.

Basically the article says that "instead of starting at the top, we started at the bottom."

https://wapo.st/43NM1Cf

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The Supreme Court upheld the Indian Child Welfare Act (ICWA) This is cause for celebration.

(In my legal appellate practice, I filed appeals to overturn dozens of forced adoptions where Indian children were taken from Reservations in violation of the Indian Child Welfare Act.)

The Act was passed in 1978 in response to the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families.

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For people asking, here is the entire indictment:
https://int.nyt.com/data/documenttools/trump-indictment-document/967835b8a14a6b03/full.pdf

Task: Get your MAGA relatives to read the entire thing.

Surely the Aileen Cannon complication proves that it isn't "timid" and "cowardly" to wait until the prosecutors have enough evidence to convict.

I've been saying for years: Good prosecutors bring cases when they know they'll get a conviction.

Bad prosecutors rush forward.

There. I got that off my chest.

Here's what I gather about the Taylor Budowich testimony today.

I have this seemingly innocuous entry on my timeline:

February, 2022: Trump wanted to release a public statement saying he’d returned everything, but people around him persuaded him not to do that. (They kept him from releasing a lie.)

Apparently Budowich was the guy who kept Trump from releasing the statement after consulting with lawyers.

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In my weekend blog post I talked about the sometimes fine distinction between witnesses and accomplices.

See: https://terikanefield.com/mob-lawyers-and-trumps-lawyers/

It seems to me that Budowich and the lawyers are walking a line.

From these facts, it's likely that Budowich's only criminal liability would come from lying.

If he tells the truth, he's a witness. If he lies, he's part of the conspiracy.

Hence his tirade earlier about how the government is out to get Trump.

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