07 NOVEMBER 2021
Criminal laws in the United States are a product of the legislative process. They are an expression of the society’s disapproval of behaviors it seeks to forbid. For many individuals, maintaining social order or obeying the law is of no personal or intrinsic value, and their avoiding socially undesirable behavior is based solely in fear of being caught and punished. While this post does not specifically analyze these issues under Kohlberg’s stages of moral development, see, e.g., https://educationaltechnology.net/stages-of-moral-development-lawrence-kohlberg/, criminal laws can also be educational and shape behavior by informing citizens of the moral character of certain conduct. That and the fear of punishment can help habituate their law-abiding behavior as people advance along the moral spectrum and values become their own.
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Deterrence is a fundamental precept of maintaining social order. The justice system in the United States recognizes deterrence in two forms, individual deterrence, which is a consequence of exacting punishment on the specific offender, and general deterrence, which results from the threat and fear of punishment. The federal sentencing statute, 18 U.S. C. § 3553, expressly identifies the two forms of deterrence as factors the judge must consider in fashioning an appropriate sentence. It provides:
The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider — . . .
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide punishment for the offense;
(B) to afford adequate deterrence to criminal conduct [general deterrence];
© to protect the public from further crimes of the defendant [individual deterrence]. . . .
Individual deterrence works only when society punishes the specific offender.
General deterrence works only when the rule of law applies equally.
Evidence, or its absence, is largely irrelevant to most Republicans. Over 55% say they have no confidence in science, despite overwhelming evidentiary support. North of two-thirds say the 2020 presidential election was stolen, despite the absence of evidence of voter impropriety that could have changed the outcome in any state. I suspect a Venn diagram would show the entirety of the former is encompassed inside the latter. Sorting out what people really think versus what they hope is true and want to believe is near impossible and polls are, at best, blunt instruments in ferreting out such information. Regardless, the disinformation campaigners and their network accomplices, fomenting distrust in evidence or its absence for larger ends, have been resoundingly successful. The conduct at issue goes well beyond any semblance of First Amendment protection.
People believe what they choose to believe, overwhelming evidence to the contrary, so provable and proven facts will change few minds in a polarized climate, or at least those who have closed their minds and are steadfastly immersed in disinformation will say so. They are unpersuadable by evidence. They understand only consequences. The slope will become slipperier, posing an even direr threat to free and fair elections and the constitutional and social orders so long as those who orchestrated others’ seditious activities suffer no direct consequences and have no reason to fear punishment.
They remain undeterred, and why not!
As a criminal defense attorney, I can vouch for the fact that the array of tools available to law enforcement agencies within the Department of Justice for conducting criminal investigations are efficient and far superior to the cumbersome and time-consuming process on embarrassing display in the Congress. And their reasons for conducting investigations differ. The DOJ has no law enforcement reason to await a report from the Select Committee to Investigate the January 6th Attack on the United States Capitol before doing its work.
My view, which I have addressed in previous posts, is that the so-called “stolen election” based on so-called “voter fraud” can be easily exposed with a highly publicized criminal trial that allows Mr. Trump to defend what people are calling the “Big Lie.” He can put on competent evidence, if he can find any, that the election was, in fact, stolen. His conduct easily falls within the federal criminal conspiracy statute. Those who find no use for evidence, or its absence, won’t, of course, be convinced. I said:
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.
Friday’s Salon reported that the nonpartisan, nonprofit group Free Speech for People (FSFP) is calling for Attorney General Merrick Garland’s resignation for failing “to hold accountable former president Donald Trump and his co-conspirators for attempting to overthrow the government,” arguing that Mr. Garland is “the wrong person for this job at this time.”
I’m confident the FSPS isn’t holding its collective breath.
The FSPS’s position, which I quote in its entirety below, is solidly grounded in fundamental principles of constitutional and social order, the rule of law, and criminal justice.
Attorney General Garland’s position appears not to be, and if he thinks it is, he clearly is the wrong person for the job at this moment in the country’s history. I, obviously, am not privy to any calculous inside the Department of Justice, but the signaling does not bode well for the rule of law and its equal application, peaceful transitions of power based on free and fair elections, and the constitutional order.
Oil on Panel, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
Attorney General Garland prosecuted Timothy McVeigh, the country’s most infamous domestic terrorist, for bombing the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people, including 19 children. In his prologue to Reign of Terror: How the 9/11 Era Destabilized America and Produced Trump, Spencer Ackerman places the Oklahoma bombing in its broader context which includes white separatism and supremacy and explains the bombing’s lasting imprint on the American psyche. It’s worth your time.
Many observers suggested that Judge Garland’s experience as a prosecutor, and specifically for having prosecuted McVeigh, well prepared him for the monumental tasks that lay ahead as the nominee for Attorney General to lead the Department of Justice — especially in the immediate wake of January 6. In his written statement to the Senate Judiciary Committee, Judge Garland said:
“150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission.”
At the time, McVeigh’s bombing in Oklahoma City was the worst terror attack on United States soil since Pearl Harbor and by any measure the worst domestic terror attack in the country’s history. In the aftermath of both attacks, the country united against common enemies. Nonetheless, pockets of similarly minded extremists who supported the attack on Oklahoma City and were steeped in its rationale remained, even thrived.
While the immediate death and destruction paled in comparison to those of Oklahoma City, January 6 is the product of a much broader radicalization of willing and eager Trump disciples, in and out of government, many of whom know better but long ago traded in their integrity. January 6 presents a clear and present danger to the United States that exceeds that of Oklahoma City by near limitless factors.
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
In a June 13, 2021 post, Attorney General Garland, Does “Our Job is to Ensure Adherence to the Rule of Law” mean Giving Trump a De Facto Pardon?, I addressed the same Trump crimes identified in the FSPS’s November 5, 2021 call for the Attorney General’s resignation. In testimony before a Senate committee, Mr. Garland had recently defended certain DOJ decisions, saying:
“The job of a Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people. And our job, in doing so, is to ensure adherence to the rule of law. . . . But in every case, the job of the Justice Department is to make the best judgment it can as to what the law requires.”
Many of Trump’s serious violations of federal criminal law, committed while he was in office, were on public display, in real time. Others were identified in fully investigated and sourced reports, including the Mueller Report, Inspectors General reports, and impeachment proceedings. I won’t take up the space here to list them. What would it mean for “ensur[ing] adherence to the rule of law,” for “what the law requires,” for elected officials and future presidents, if the Department of Justice declines to prosecute open, notorious, fully documented and sourced violations of federal law that struck at the very core of our constitutional republic?
That would not be even-handed or non-partisan. That would be the most dangerous precedent the Department of Justice could possibly set for the future and survival of the United States as a democratic republic. Consistent with the conduct and pattern established in Trump’s DOJ, that would eviscerate and render meaningless the rule of law.
The current state of affairs portends poorly for the country. Unless the Department of Justice takes immediate, decisive, open, and notorious action to deter future attempts to overthrow the government by prosecuting those responsible for instigating the insurrection, the constitutional order will not survive. Few if any more serious crimes have been committed against the United States.
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
The Free Speech for People’s statement is quoted below.
Merrick Garland Must Resign
Over the past thirty years, Merrick Garland served with distinction as a federal prosecutor and then as an appellate judge. Unfortunately, as Attorney General for the past eight months, he has failed to take any meaningful action to hold accountable former president Donald Trump and his co-conspirators for attempting to overthrow the government on January 6, 2021 and a flurry of criminal acts in the months and years leading up to that date. Instead, he has adopted indefensible positions of the Trump Department of Justice (DOJ) to protect Trump from accountability. Since Garland is unwilling to step up, it is time for him to step down.
In January, we urged incoming Attorney General Merrick Garland to establish an independent task force to centralize and coordinate criminal investigations of Trump and his associates. To preserve the rule of law, we explained, Garland should announce the task force’s formation, designate its leadership and mandate, and allow it to independently investigate. If Garland had created a framework for credible, impartial criminal investigations of a former president of the United States, DOJ would have affirmed that no one — not even a former president — is above the law. Yet while DOJ has charged the low-level insurrectionists who broke into the Capitol, it has not moved against the highly placed leaders of the insurrection, including Trump himself.
DOJ’s inaction — Garland’s inaction — endangers the rule of law. Even before the 2020 election, Trump conspired with key aides to sabotage a free and fair election by extorting (or, viewed another way, bribing) the President of Ukraine to embarrass Joe Biden politically in exchange for military aid. (Although the Senate failed to convict him in an impeachment trial for this conduct, that has no impact on criminal proceedings.) And as the election approached, Trump bragged that he was deliberately sabotaging the Postal Service to limit voting-by-mail.
After his election defeat, Trump called Georgia’s Secretary of State and pressured him to “find 11,780 votes” to overturn the presidential election outcome in that state. (Two Members of Congress have already sent a criminal referral to the FBI regarding that phone call.) He also pressured another Georgia official to investigate counties where Biden received more votes. Since overturning Georgia’s election results alone wouldn’t yield a victory for Trump, it’s almost certain that he made or attempted similar conversations with elections officials in other states.
The culmination was Trump’s speech inciting an angry mob to march on the Capitol. His violent horde then stormed the Capitol, seizing the House and Senate chambers and forcing emergency evacuation of Congress — all in an effort, spurred by Trump, to stop the certification of election results while Trump watched on television with obvious satisfaction and ignored pleas to intervene to stop the insurrection. In fact, recent news indicates that, even before January 6, his team established a “command center” or “war room” to coordinate the events of that day, and that event planners were in close contact with Trump’s White House Chief of Staff. Their actions, no less than those of the individual rioters, may constitute conspiracy to impede or disrupt the orderly conduct of government business, insurrection, seditious conspiracy, and advocating the overthrow of the government.
That is not all of Trump’s potential criminal liability. Trump’s offenses related to the 2016 election weren’t prosecuted during the Trump presidency because of DOJ policy. The Mueller Report and the Republican-led Senate Intelligence Committee report cited extensive evidence that Trump obstructed justice. But Mueller explicitly noted that he didn’t consider filing — or even drawing conclusions about — charges against Trump due to DOJ policy against prosecuting a sitting president. That policy, however, stopped applying to Trump at 12:00 pm on January 20.
The same policy probably protected Trump from the federal criminal charges against his former personal lawyer, Michael Cohen, who paid off Trump’s mistresses for their silence during the campaign. Cohen pleaded guilty to (and served prison time for) those crimes and admitted that he committed them at Trump’s direction. Trump was named as an unindicted co-conspirator (“Individual1”), but, so far, has escaped accountability.
Indeed, Trump spent his entire time in office misusing the presidency for personal profit. As early as the transition, he engaged in a scheme of exchanging U.S. policy for approval of Trump Organization trademarks in China. Over the next four years, he demanded and received a mind-blowing array of personal financial benefits from domestic and foreign supplicants seeking to curry favor with the U.S. government.
Garland’s failures have not been limited to Trump. He has failed to investigate Members of Congress who appear to have helped plan the January 6 insurrection, including Rep. Paul Gosar (Ariz.), Rep. Lauren Boebert (Colo.), Rep. Mo Brooks (Ala.), Rep. Madison Cawthorn (N.C.), Rep. Andy Biggs (Ariz.), Rep. Louie Gohmert (Texas), and Rep. Marjorie Taylor Greene (Ga.).
Meanwhile, DOJ inexcusably sat on its hands since a bipartisan majority of the House of Representatives voted on October 21 to hold Steve Bannon in contempt of Congress for defying a subpoena from the January 6 committee. The last time that the House referred a contempt of Congress charge to DOJ, then-President Reagan’s prosecutors immediately brought the matter to a grand jury; it returned an indictment just nine days after the House vote.
Furthermore, Garland’s failures have not been limited to inaction. He has actively defended or continued many Trump-era DOJ policies, including the coverup of the key DOJ legal memo regarding Trump’s obstruction of justice, and defending Trump’s libel of a rape victim by claiming that he did so “within the scope of his office as President of the United States.”
For all these reasons, Garland is no longer fit to serve as Attorney General. His previous record of federal service should not blind us to the fact that he is simply the wrong person for this job at this time. Perhaps he can still contribute to the country in other ways. But as long as Trump and his co-conspirators walk free, American democracy is in danger. We need an Attorney General who understands that danger and is willing to take action to protect democracy and the rule of law.
Merrick Garland must resign
*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.