USA v. Donald J. Trump – Indictment 8/1/23

[Boydstun]

 

Indictment

[tadmjones]

https://en.wikipedia.org/wiki/Banana_republic

[StrictlyLogical]

US Corruption is not partisan... nor should be its opposition.

[Boydstun]

Tad, notwithstanding endless chorusing of ad hominem against judicial process in America today, the broad and firm circumstance is as Paine envisioned: in America, the Law is King. Ad hominem of acts of government or its agents is easy, and it is a refusal to face particulars of evidence and law by prejudiced preemption.

The good news for Mr. Trump is that his attorneys will be contesting each bit of evidence on specific grounds and each application of law on specific ground. Name-calling gets the client nowhere in legal process.

This thread will be good for noting and possibly discussing the particulars in the unfolding of the case, probably a case critical to the continuation of constitutional democratic process and republic form of America. 

Page 30

Quote

81. On the afternoon of January 3, Co-Conspirator 4 [DOJ official Jeffrey Clark] spoke with a Deputy White House Counsel. The previous month, the Deputy White House Counsel had informed the Defendant that "there is no world, there is no option in which you do not leave the White House [o]n January 20th." Now, the same Deputy White House Counsel tried to dissuade Co-Conspirator 4 from assuming the role of Acting Attorney General. The Deputy White House Counsel reiterated to Co-Conspirator 4 that there had not been outcome-determinative fraud in the election and that if the Defendant remained in office nonetheless, there would be "riots in every major city in the United States." Co-Conspirator 4 responded, "Well, [Deputy White House Counsel], that's why there's an Insurrection Act."

Pages 34–35

Quote

 

93. During the meeting, as reflected in the Vice President's contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, "Bottom line—won every state by 100,000s of votes" and "We won every state," and asked—regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before—"What about 205,000 votes more in PA than voters?" The Defendant and CoConspirator 2 [lawyer, John Eastman] then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states' legislatures. When the Vice President challenged Co-Conspirator 2 on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 responded, "Well, nobody's tested it before." The Vice President then told the Defendant, "Did you hear that? Even your own counsel is not saying I have that authority." The Defendant responded, "That's okay, I prefer the other suggestion" of the Vice President rejecting the electors unilaterally.

94. Also on January 4, when Co-Conspirator 2 acknowledged to the Defendant's Senior Advisor [Stephen Miller?] that no court would support his proposal, the Senior Advisor told Co-Conspirator 2, "[Y]ou're going to cause riots in the streets." Co-Conspirator 2 responded that there had previously been points in the nation's history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was "not going to work."

95. On the morning of January 5, at the Defendant's direction, the Vice President's Chief of Staff and the Vice President's Counsel met again with Co-Conspirator 2. CoConspirator 2 now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, CoConspirator 2 privately acknowledged to the Vice President's Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President's Counsel expressed to Co-Conspirator 2 that following through with the proposal would result in a "disastrous situation" where the election might "have to be decided in the streets."

96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweets: . . .

97. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant's request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President's Chief of Staff was concerned for the Vice President's safety and alerted the head of the Vice President's Secret Service detail.

Effective defense includes undermining such particular evidence to an extent sufficient to persuade at least one juror that the charge to which the evidence goes has not been proven beyond a reasonable doubt. Hollering that the Special Counsel or the Devil or "the establishment" or "the deep state" has it in for Defendant does not stand as warranting reasonable doubt.

Edited August 2, 2023 by Boydstun

[tadmjones]

Stephen

Unlike an indictment the 'evidence' will be challenged. I suspect rules of discovery will allow for the defense to try and substantiate claims of malfeasance in several of the states mentioned. "False" as a legal term is going to get a lot of attention , I'd figger.

Shouldn't the 147 members of congress that stated, publicly, they would follow established procedures attendant to challenging slates of electors be listed as co-conspirators in advancing 'false' claims ?  

[necrovore]

This looks like a very dangerous indictment to me because it implies that the government can define the "facts" to be whatever they want them to be. Once that is done, anybody who disagrees with those "facts" is obviously guilty of "perjury," "fraud," or the like, and any "evidence" against those "facts" is obviously "fabricated," etc.

Once a government can set the facts to their tastes, the constitution and the law mean nothing.

[Boydstun]

Tad & Nec, "knowingly false claims," that is, false claims known to be false by the claimant, is part of the requirement for criminality. The Indictment mentions additionally that one as a legal right make all sorts of false claims (even lies). The burden of proof of the 'knowingly' qualification as fact in the case is on the prosecution. Criminality comes where the proven "knowingly false" comes in the particular contexts of a–c.

Page 2

Quote

 

3. The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means . . .

4. Shortly after election day, the Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results. In so doing, the Defendant perpetrated three criminal conspiracies:

a. A conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government, in violation of 18 U.S.C. § 371;

b. A conspiracy to corruptly obstruct and impede the January 6 congressional proceeding at which the collected results of the presidential election are counted and certified ("the certification proceeding"), in violation of 18 U.S.C. § 1512(k);and

c. A conspiracy against the right to vote and to have one's vote counted, in violation of 18 U.S.C. § 241. Each of these conspiracies—which built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the United States federal government: the nation's process of collecting, counting, and certifying the results of the presidential election . . .).

 

 

Edited August 2, 2023 by Boydstun

[necrovore]

The government could claim that "Capitalism is the system where the government supports businesses at the expense of the workers." Then they can go on to say that supporters of Ayn Rand, who disagree, are promulgating a "false" claim. If those supporters hear the government's assertion and refuse to accept it, the government can then go on to claim that it's "knowingly false."

Apparently this would even apply if a supporter of Ayn Rand were elected President and tried to carry out policies based on Ayn Rand's definition of Capitalism as opposed to the government's "official" definition. Such a person could be deemed to be "defrauding the government."

Edited August 2, 2023 by necrovore

[Boydstun]

nec,

The US government does not do that. Nor could the US government do such a thing. By its empowering law, the US Constitution, it is not allowed to have law mandating beliefs, or mandating in vague and arbitrary ways, including the ways of fantasy. We have Law, not King and not Walt Disney. No case law or statute such as that can stand as part of our law. No actual case that makes it to court would have that implication for law. It would in effect be laughed out. 

Do you have access to any case books they use in law school? Illuminating they are on how things actually work at court, from Constitutional Law to Criminal Procedure to Rules of Evidence.

[necrovore]

Well, there was the "finding of fact" in the Microsoft antitrust trial, which as I remember was well-laden with opinions and not facts. But, once they were declared "facts" they could not be challenged, even in the appeals courts, which stuck Microsoft in the position of having to prove its innocence without contradicting those "facts."

[Boydstun]

nec,

Quote

The Court has considered the record evidence submitted by the parties, made determinations as to its relevancy and materiality, assessed the credibility of the testimony of the witnesses, both written and oral, and ascertained for its purposes the probative significance of the documentary and visual evidence presented. Upon the record before the Court as of July 28, 1999, at the close of the admission of evidence, pursuant to Fed. R. Civ. P. 52(a), the Court finds the following facts to have been proved by a preponderance of the evidence.

If someone not that court should find the preponderance of the evidence points to finding of facts at odds with the court, it does not mean that either reasoner is indulging in mere opinion. (The "findings of fact" has the ordinary sense of the phrase on its face, but additionally, as you may know, as phrase of art of law, its paramount contrast class is "conclusions of law.")

Edited August 2, 2023 by Boydstun

[DavidOdden]

The first count raises an interesting interpretive question. The law says that

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both

and one should wonder “who / what is the United States?” as far as this law is concerned? Words are often specially-defined for particular statutes. The term is defined:

The term “United States”, as used in this title in a territorial sense, includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone.

The three main interpretations that would be sensible would be “the government of the United States”, “the entire United States including the government and all of the population”, or “some entity in the United States”.

We can rule out “some entity in the United States”, since that would make it a federal crime for two people to conspire to “commit any offense” against me. It is settled law that the federal government does not have jurisdiction over every offense committed in the US. To be valid federal law, the federal government would have to have personal jurisdiction – for example, acts against the federal government, or acts against specified federal workers. The addendum “or any agency thereof ” clearly indicates that an agency of the US government is supposed to me included in the scope of “against the United States”.

¶10(a) of the indictment asserts that “The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant's opponent”. However, said legislators and “election officials” are not part of the government of the United States. Maybe a case could be mounted in Pennsylvania or Wisconsin, but you can’t make a federal matter out of a state offense.

The claim is that there was an attempt to “defraud” the government of the United States. Therefore we need to turn to the chapter on fraud which brings us to infamous 18 USC 1001 (used to imprison Martha Stewart), which says that

whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry

goes to jail.

The term “matter within the jurisdiction…” means, for example, “a court proceeding”, or “a Congressional investigation” or “an FBI investigation”, it does not make it a federal crime to tell a lie in the US. There is no “matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States” (the election of president is not within the jurisdiction of the United States, it is with the jurisdiction of the several states).

There are a handful of other references to fraud in that chapter: all of then involve something rather specific such as fraudulent contract bids, forging documents and identification instruments, accessing computers (any computer connected to the internet), some violations of the Atomic Energy Act… A knowingly false claim that there had been electoral fraud is not “fraud” in the federally-relevant sense, and by the same logic, the indictment itself is fraudulent (however, not actionable, since one cannot be prosecuted over an indictment no matter how egregiously false it is).

The defense will of course attack everything, but the most important thing to attack, and the most significant crime against rights being mounted by the Biden Administration, is the “weaponizing” of words like “fraud”, and the usurpation of individual states’ interest in properly addressing these acts – or not.

[necrovore]

My definitions of "fact" and "opinion" might not be the same as the legal definitions... I'd consider a "statement of fact" to be something concrete and an "opinion" to be something more abstract. A statement of fact can be correct or not, but you could verify it with observation (or possibly the use of instruments). An opinion can also be correct or not, but in order to assess its correctness you'd have to apply abstract principles which are drawn over large numbers of facts. It's possible for an opinion to be based on Objectivism or Communism but it's not possible for a claim of fact to be based on an ideology, because it's supposed to be the other way around -- ideologies, if correct, are supposed to be based on facts! (Of course, if someone lies about a fact, then the motive for the lie might be some ideology... and sometimes an ideology can bias someone toward making certain kinds of errors... but you cannot conclude that something is a lie or an error merely because it supports some ideology...)

A legal system cannot conform to reality by itself; it depends on its practitioners (judges, attorneys, police, etc.) for that. Sometimes practitioners make mistakes, but a legal system should be devised to take that into account and allow those errors to be corrected. A legal system should also be devised to correct for the situation where occasionally a practitioner is corrupt. Even when the legal system makes provisions for these kinds of problems, the provisions may not always work and errors may occur. However, if a majority of the practitioners are sufficiently corrupt, such as by an ideology, there is not much the legal system can do.

Ayn Rand noted decades ago that America had a rift between its people and its intellectuals. The intellectuals become the legal system's practitioners. Now they are the permanent bureaucrats, the DC "swamp." They have the power to declare what is "true" and "false" as far as the government is concerned, and to enforce those pronouncements through the legal system. Although that power should be used to keep the government aligned with actual reality, they can also use it to keep themselves in power, and that's what they are doing here, and I believe they have done it in other cases.

The question of what would be "laughed out of court," and what wouldn't be, is up to them.

Edited August 2, 2023 by necrovore

[necrovore]

p.s. minor nitpick in the above, I identified police as practitioners, but later I said the intellectuals become the practitioners... with police there is a level of indirection... the police are usually not intellectuals themselves, but somebody has to develop the programs used to train them... I think my main point still stands.

[Doug Morris]

On 8/2/2023 at 1:09 PM, tadmjones said:

https://en.wikipedia.org/wiki/Banana_republic

Did you read this before posting?

 

[Doug Morris]

On 8/2/2023 at 2:58 PM, necrovore said:

This looks like a very dangerous indictment to me because it implies that the government can define the "facts" to be whatever they want them to be.

How do you know that it is the government and not Trump who is defining the "facts" to be whatever they want them to be?

[tadmjones]

3 minutes ago, Doug Morris said:

Did you read this before posting?

 

Yes , why?

[Doug Morris]

On 8/2/2023 at 4:00 PM, necrovore said:

Well, there was the "finding of fact" in the Microsoft antitrust trial, which as I remember was well-laden with opinions and not facts. But, once they were declared "facts" they could not be challenged, even in the appeals courts, which stuck Microsoft in the position of having to prove its innocence without contradicting those "facts."

From Wikipedia:

At the initial trial, the United States District Court for the District of Columbia ruled that Microsoft's actions constituted unlawful monopolization under Section 2 of the Sherman Antitrust Act of 1890,^[2] but the U.S. Court of Appeals for the D.C. Circuit partially overturned that judgment.^[1] The two parties later reached a settlement in which Microsoft agreed to modify some of its business practices.^[3]

This does not look to me like a definitive example of anything.

The ambiguity and inconsistency of antitrust law is probably at least part of the problem.  The solution is to repeal the antitrust laws.

 

[Doug Morris]

9 minutes ago, tadmjones said:

Yes , why?

The article on "banana republic" is about corruption of the political and economic system of a country into a device for extracting wealth from the general population.  Where does it mention anything relevant to the Trump case?

  

[necrovore]

1 hour ago, Doug Morris said:

How do you know that it is the government and not Trump who is defining the "facts" to be whatever they want them to be?

Trump is not the one trying to end freedom of speech here.

[tadmjones]

27 minutes ago, Doug Morris said:

The article on "banana republic" is about corruption of the political and economic system of a country into a device for extracting wealth from the general population.  Where does it mention anything relevant to the Trump case?

  

It has a different generally held connotation in ‘modern’ political rhetoric as a term to describe a corrupt government that is just a figurehead for some oligarchic regime.

The relevance is to the character of the actions of the DoJ, and it was interesting to note the O Henry connection.

[InfraBeat]

So "the indictment is based on denying free speech" will be central strawman canard. The charge is not that Trump lied, but rather that he lied as part of a conspiracy to defraud, to obstruct and to deny rights. Anyone has the freedom to lie, "This watch is made of gold" as no one is thereby defrauded, but not when selling the watch as the buyer is then defrauded. Anyone is free to say many of the claims about the election mentioned in the indictment, but the indictment is not just about making those claims but the role of those claims in a conspiracy to defraud, obstruct and deny rights. One may disagree that the indictment is sufficient evidence, but it's a sophomoric, specious strawman to characterize the indictment as tantamount to prosecution for exercise of free speech. 

Edited August 4, 2023 by InfraBeat

[InfraBeat]

On 8/2/2023 at 1:35 PM, tadmjones said:

Shouldn't the 147 members of congress that stated, publicly, they would follow established procedures attendant to challenging slates of electors be listed as co-conspirators in advancing 'false' claims ?  

Why would one ask such a pointless question? They wouldn't be indicted as co-conspirators merely for making certain statements while not being part of a conspiracy to defraud, obstruct or deny rights. 

Edited August 4, 2023 by InfraBeat

[InfraBeat]

On 8/2/2023 at 12:09 PM, tadmjones said:

https://en.wikipedia.org/wiki/Banana_republic

A link to a page in which 'banana republic' is defined so that we see that the United States has not been and is not now a banana republic.

[InfraBeat]

On 8/2/2023 at 4:32 PM, DavidOdden said:

acts against the federal government

The presidential election is a federal election. 

On 8/2/2023 at 4:32 PM, DavidOdden said:

18 USC 1001

That's not a code being charged. 

On 8/2/2023 at 4:32 PM, DavidOdden said:

The defense will of course attack everything

I'd be curious to see whether the defense would argue that the United States does not have a basis to charge a defendant for conspiracy to defraud, obstruct and deny rights regarding the election of the president as constitutionally through a federal election is subject to federal laws and rules, meeting of the Electoral College (which is not an entity of just an individual state) and a meeting of Congress. Moreover, I don't see that one cannot attempt to defraud the United States through fraud carried out against individual states. If someone attempts to defraud a state in such a way to make the state fraudulent in reporting election results and to send false electors, then it seems hard to argue that that is not thereby an attempt to defraud the United States.  

Edited August 4, 2023 by InfraBeat