ARE MERRICK GARLAND’S JUSTICE DEPARTMENT AND THE HOUSE SELECT COMMITTEE ON THE JANUARY 6 ATTACK NOTHING MORE THAN PAPER TIGERS?

10 OCTOBER 2021

I refuse to become numb to the crimes Trump and his enablers have committed — and continue to commit — against the United States. My clients are held to account for their alleged crimes against the United States. While some are charged with very serious crimes, theirs’, by any comparison to the prominence, gravity, and number committed by Trump, are of little consequence to the survival of the country as a constitutional republic. Allowing Trump to evade criminal responsibility for his most serious offenses — crimes against the country’s very foundation and core institutions — could be the Attorney General’s direst mistake, accelerating the country’s downfall. Absent the deterring effect of serious criminal consequences, Trump’s sedition, and that of white nationalists like him, will continue the march encouraged and unabated, from insurrection to autocracy.

Three momentous events occurred this week. First and third, the Senate and House each issued non-overlapping reports detailing separate sets of serious crimes Trump committed against the United States. Second, in response to a duly served subpoena, Bannon, who held no position in government leading up to or on January 6 and has no standing to invoke any form of legal privilege (other than his Fifth Amendment right to remain silent on fear of incrimination), followed Trump’s “direction,” telling the House Select Committee on the January 6 Attack to go fuck itself.

I discuss this week’s revelations of Trump crimes below.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

TRUMP TRIES TO USE THE DOJ TO OVERTURN THE 2020 ELECTION

First, the Senate Judiciary Committee issued its report on Trump’s malign efforts to use senior Justice Department officials to overturn the 2020 election, linked below.

https://www.judiciary.senate.gov/imo/media/doc/Interim%20Staff%20Report%20FINAL.pdf

Comprehensive in its findings, conclusions, and source documentation, the report — “Subverting JUSTICE: How the Former President and His Allies Pressured DOJ to Overturn the 2020 Election,” — is nothing short of a speaking indictment under the federal criminal conspiracy statue, 18 U.S.C. § 371, to defraud the United States. Moreover, as Glenn Kirschner notes, Trump’s threat against then acting Attorney General Rosen to remove and replace him — unless he engaged in specific political activity — was a clear violation of 18 U.S.C § 610, coercion of political activity. See FINDINGS 1 and 3, below.

https://www.politicususa.com/2021/10/07/glenn-kirschner-says-the-only-thing-left-for-the-doj-to-do-is-indict-trump.html @glennkirschner2

The Senate Majority Staff reports:

FINDING 1: President Trump repeatedly asked DOJ leadership to endorse his false claims that the election was stolen and to assist his efforts to overturn the election results.”

FINDING 2: White House Chief of Staff Mark Meadows asked Acting Attorney General Rosen to initiate election fraud investigations on multiple occasions, violating longstanding restrictions on White House-DOJ communications about specific law enforcement matters.”

FINDING 3: After personally meeting with Trump, Jeffrey Bossert Clark pushed Rosen and Donoghue to assist Trump’s election subversion scheme — and told Rosen he would decline Trump’s potential offer to install him as Acting Attorney General if Rosen agreed to aid that scheme.”

FINDING 4: Trump allies with links to the ‘Stop the Steal’ movement and the January 6 insurrection participated in the pressure campaign against DOJ.”

FINDING 5: Trump forced the resignation of U.S. Attorney Byung Jin (‘BJay’) Pak, whom he believed was not doing enough to address false claims of election fraud in Georgia. Trump then went outside the line of succession when naming an Acting U.S. Attorney, bypassing First Assistant U.S. Attorney Kurt Erskine and instead appointing Bobby Christine because he believed Christine would ‘do something’ about his election fraud claims.”

FINDING 6: By pursuing false claims of election fraud before votes were certified, DOJ deviated from longstanding practice meant to avoid inserting DOJ itself as an issue in the election.”

Under 18 U.S.C. § 371, the crime of conspiracy “to defraud the United States, or any agency thereof in any manner or for any purpose,” is complete when (a) two or more people agree “to interfere with or obstruct one of its [the United States’] lawful governmental functions by deceit, craft, or trickery, or at least by means that are dishonest,” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924), and (b) “one or more of such persons do any act to effect the object of the conspiracy,” also known as an “overt act.”

A lawful function of the United States within the meaning of Section 371 is to conduct and manage free and fair elections, certify their results based on the will of the people, and effect the peaceful transition of power. Under the Majority Staff Report summary findings above, Trump, Meadows, Clark, and “Trump allies” reached an agreement to interfere with or obstruct a lawful government function by deceit, craft, trickery, and dishonest means. While only one overt act is necessary to complete the crime, Trump (FINDINGS 1 and 3 above), Meadows (FINDING 2 above), Clark (FINDING 3 above), and Trump allies (FINDING 4 above) engaged in separate overt acts to carry out the purpose of the conspiracy. That’s how conspiracies work: the overt act of one is imputed to all members of the conspiracy because they are all in it together. Under the conspiracy statute, a convict “shall be fined . . . or imprisoned not more than five years, or both.”

Parenthetically, the post-constitutional senators on the Judiciary Committee may claim as a defense no harm not foul, his plan didn’t succeed, that Trump failed to recruit or persuade enough senior Justice Department officials to complete the object of a criminal conspiracy that was well under way. No harm no foul is not a defense to the crime of conspiracy. Once any member of the conspiracy committed an overt act, the crime was complete. If the gun-toting bank robber is wrestled to the ground by security guards and taken into custody rather than escaping with bags of cash, the law does not excuse his conduct or that of the driver of the getaway car.

The statute referenced by Mr. Kirschner, 18 U.S.C. § 610, makes it a crime to “intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government . . . to engage in, or not to engage in, any political activity . . . . Any person who violates this section shall be fined . . . or imprisoned not more than three years, or both.”

In fairness to those post-constitutional members of the Senate Judiciary Committee — Iowa’s Chuck Grassley, South Carolina’s Lindsey Graham, Texas’s John Cornyn, Utah’s Mike Lee, Texas’s Ted Cruz, Nebraska’s Ben Sasse, Missouri’s Josh Hawley, Arkansas’s Tom Cotton, Louisiana’s John Kenndy, North Carolina’s Thom Tillis, and Tennessee’s Marsha Blackburn — the link to the No Harm No Foul minority staff report is below. Cherry-picking only favorable testimony, the report conveniently omits the considerable damaging testimony and important context detailed at length in the majority report.

https://www.judiciary.senate.gov/imo/media/doc/intheirownwordsafactualsummaryoftestimonyfromseniorjusticedepartmentofficialsrelatingtoeventsfromdecember142020tojanuary32021.pdf

Oil on Panel, Richard J Van Wagoner, Courtesy of Marilyn Jones**

BANNON REFUSES TO COMPLY WITH SUBPOENA AT TRUMP’S DIRECTION

The second event, Bannon’s refusal at Trump’s “direction” to comply with a duly served congressional subpoena, strikes at the core of congressional oversight and government institutions. Trump has no standing to claim executive privilege in any event, but any such claim utterly fails because Bannon was a government outsider leading up to and on January 6.

Will the committee go fuck itself?

Will it do everything within its power to hold Bannon accountable for his defiance?

If it refers Bannon to the Department of Justice for prosecution, what, if anything, will Mr. Garland do?

If it refers Trump to the Department of Justice for prosecution, what, if anything, will Mr. Garland do?

Answers to these questions matter because of the message they will send to Trump, politicians like Trump, and their followers. As some on social media have accurately predicted, absent criminal consequences to those who incited the attempted coup, January 6 will have been a rehearsal.

Trump’s and Bannon’s conduct is in clear violation of 18 U.S.C. § 1505, obstruction of proceedings before a congressional committee: “Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the . . . due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either the House, or any committee of either House or any joint committee of Congress . . . [s]hall be fined . . ., imprisoned not more than 5 years, or, if the offense involves international or domestic terrorism, imprisoned not more than 8 years, or both.”

Watercolor, Richard J. Van Wagoner, Courtesy of Van Wagoner Family Trust**

TRUMP GAVE FALSE STATEMENTS IN NEGOTIATIONS WITH THE GSA AND IN OFFICIAL GOVERNMENT RECORDS IN CONNECTION WITH HIS WASHINGTON D.C. HOTEL

Third, just Friday, the House Oversight Committee issued a report that Trump “concealed millions in losses, hid debts, and received millions from foreign governments at Trump hotel.”

“[T]he Committee found that President Trump provided misleading information about the financial situation of the Trump Hotel in his annual financial disclosures; received undisclosed preferential treatment from a foreign bank on a $170 million loan to the hotel that the President personally guaranteed; accepted millions of dollars in emoluments from foreign governments without providing an accounting of the money’s source or purpose; concealed hundreds of millions of dollars in debts from GSA when bidding on the Old Post Office Building lease; and made it impossible for GSA to properly enforce the lease’s conflict-of-interest restrictions by engaging in opaque transactions with other affiliated entities. As discussed in this letter, this new evidence raises many questions that require further investigation and action by the Committee.”

Specifically, the Oversight Committee found:

“Former President Trump Reported Massive Revenues at the Trump Hotel, Concealing that the Hotel Suffered $70 Million in Net Losses.”

“While in Office, President Trump Received Preferential Treatment Potentially Worth Millions from a Foreign Bank.”

“Former President Trump Concealed Debts When Bidding on Old Post Office Building Lease.”

“The Trump Hotel Moved Around Millions of Dollars in Opaque Transactions with Other Trump Businesses.”

https://oversight.house.gov/news/press-releases/committee-uncovers-evidence-that-trump-concealed-millions-in-losses-hid-debts

Setting aside the obvious emoluments violations, concealing a “material fact,” making a “materially false, fictitious, or fraudulent statement or representation,” or making or using a “false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry” to the government is a crime under 18 U.S.C. § 1001. A convict “shall be fined, imprisoned not more than 5 years . . . or both.”

In addition, if Trump used false or fraudulent statements or omissions in securing a lease from the United States for his Washington D.C. hotel and he did so by means of telephone, email, wire, or facsimile, Trump likely violated the federal wire fraud statute, 18 U.S.C. 1343, which carries a potential fine of up to $1 million, up to 30 years in prison, or both. If he did so using the mail, he likely violated the mail fraud statute, 18 U.S.C. 1341, which carries the same potential penalty.

MR. GARLAND, WHERE ARE YOU? ARE YOU THERE?

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.

Attorney engaged in criminal defense and First Amendment law. Board Member, local ACLU affiliate. Progressive.