Last week The New York Timespublished a photograph it had acquired that showed an upside-down American flag flying on the pole at the home of Supreme Court Justice Samuel Alito. This incident occurred in January 2021, just days after former President Donald Trump’s supporters stormed the U.S. Capitol. The flag is associated with Trump’s false claims of election fraud.
Alito says he had no involvement whatsoever in the flag flying. The flag, he said. was briefly placed by his wife, Martha-Ann Alito, in response to a neighbor’s use of objectionable and personally insulting language on yard signs. Alito also claimed he did not participate in the decision to display the flag. Sounds to me like Alito is throwing his wife under the bus.
Oh, I tried. I tried to write about the horrible fire in Maui. I tried to write about elite universities. I tried to write about artificial intelligence. And I tried to write about the ongoing strike of writers and actors in Hollywood.
But before I could publish, it happened again. Donald Trump. Back to the top of page one. Unavoidable.
Donald Trump and eighteen others were indicted in Georgia on Monday over their efforts to overturn his 2020 election loss in the state. Prosecutors used a statute normally associated with mobstersto accuse the former president, his lawyers, and other aides of a “criminal enterprise” to keep him in power.
The nearly 100-page indictment details dozens of acts by Trump or his co-indictees to undo his defeat, including asking Georgia’s Republican secretary of state to find enough votes for him to win, harassing an election worker who faced down false claims of fraud, and attempting to persuade Georgia lawmakers to ignore the will of voters and appoint a new slate of electors favorable to Trump.
I’ve said it before, and I’ll say it again. I love sharing with you my opinion, something I was rarely able to do in my many years with CBS, NBC, and PBS where my task was to present the unvarnished facts of events without commentary. But I still try as hard as I can to make sure my opinions are clearly opinions, and my facts are accurate. I also work to provide you with links to primary sources, which I implore you to read for yourselves. I remain shocked at how many Americans can’t be bothered reading documents or watching videos and instead adopt the viewpoint of whatever talking head they favor from whatever cable or internet source provides the echo chamber in which they hear the views they are predisposed to believe without a challenging word to raise doubts or questions.
Please read the indictment, here. And listen to the whole one-hour recording of Trump’s phone call on January 2, 2021, with Georgia Secretary of State Brad Raffensperger, here. Do the work. Then you can decide what it means.
“The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result,” Fulton County District Attorney Fani Willis, whose office brought the case, said at a late-night news conference. Willis’ investigation stretched over two and a half years.
The Georgia case is significantly different from the two cases previously filed in federal court by Special Counsel Jack Smith. Willis’s expansive detailing of events and use of laws (“RICO“) usually employed to go after mob bosses, will allow Fulton County prosecutors to tell the jury a story of a wide conspiracy to reverse election results in multiple states and build a compelling narrative of Trump’s actions in concert with numerous accomplices. But the logistics of putting Trump on trial along with eighteen other people, each of whom may file pretrial motions, in a racketeering indictment so complex and multilayered could result in many pre-trial motions and delay. Even so, Willis has asked the court to schedule a trial in March.
There are many interesting legal issues raised in this indictment. And whether I like it or not we will probably consider several of them in the months ahead. But first I expect you to do your homework.
For now, some quick observations. Trump’s defense, and those of many of his co-indictees, center around the idea that all he was doing was exercising his first amendment right to speak freely and criticize the election results. Another defense is that Georgia, in this indictment, and the federal government in the two indictments it has filed, is criminalizing conduct which is not criminal.
That’s where the “RICO” business comes in. RICO stands for the “Racketeering Influenced and Corrupt Organizations” Act. It was a groundbreaking piece of legislation passed in the United States in 1970 with the goal of financially crippling the Mafia. The act provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. More than thirty states, including Georgia, have passed state RICO statutes based on the federal law.
Willis explained that “overt acts are not necessarily crimes under Georgia law in isolation but are alleged to be acts taken in furtherance of the conspiracy. Many occurred in Georgia, and some occurred in other jurisdictions and are included because the grand jury believes they were part of the illegal effort to overturn the results of Georgia’s 2020 presidential election.”
The Georgia charges have the potential to accomplish something that the federal indictment does not, holding people other than Trump accountable for what happened. The other eighteen defendants, accused of being members of a criminal enterprise, include lawyers, political operatives, state Republican Party officials, and even a Justice Department official. The indictment charges Rudy Giuliani, the former New York mayor who served as Trump’s personal attorney after the election, Mark Meadows, Trump’s White House Chief of Staff, and several other Trump advisers, including lawyers John Eastman, Sidney Powell, Jenna Ellis, and Kenneth Chesebro. Some of these are believed to be unindicted and unnamed co-conspirators in the federal cases.
The Georgia indictment reads like a story, a tale the public should find easy to understand. The recorded telephone call speaks for itself and has been available for the public to hear for more than a year. The indictment specifically accuses Trump with making false statements and writings for a series of claims he made to Raffensperger and other state election officials, including that up to 300,000 ballots “were dropped mysteriously into the rolls” in the 2020 election, that more than 4,500 people voted who weren’t on registration lists and that a Fulton County election worker, Ruby Freeman, was a “professional vote scammer.”
Giuliani, meanwhile, is charged with making false statements for allegedly lying to lawmakers by claiming that more than 96,000 mail-in ballots were counted in Georgia despite there being no record of them having been returned to a county elections office, and that a voting machine in Michigan wrongly recorded 6,000 votes for Biden that were in fact cast for Trump.
Another defendant, Stephen Cliffgard Lee, is alleged to have traveled to Ruby pFreeman’s home “with intent to influence her testimony.” Freeman and her daughter Shaye Moss testified to Congress last year about how Trump and his allies acquired surveillance footage from November 2020 to accuse both women of committing voter fraud, allegations that were quickly debunked yet spread widely across conservative media. Both women, who are Black, faced death threats.
Trump has personally used his social media platform to attack Willis and other prosecutors, describing them as “vicious, horrible people” and “mentally sick.” He has referred to Willis, who is Black, as the “racist DA from Atlanta.” His 2024 campaign included her in a recent video attacking prosecutors investigating Trump. Willis has raised concerns about security as her investigation has progressed, citing Trump’s “alarming” rhetoric and the racist threats she and her staff have received. Trump has also attacked the judges. He may be put on notice at his arraignment that further inflammatory posts could lead to his imprisonment pending trial.
And unlike the federal courts, where cameras are forbidden, the Georgia courts are generally open to cameras and live coverage of the trial in Georgia is likely. That will put the spotlight, usually reserved for Trump, on prosecutors and the legal process. The public proceedings may be just what the country needs.
The cliché says that journalism is the first draft of history. We shall have to wait the verdict of historians several years down the road to craft a title for the tumultuous events of the last week and put them into perspective. For now it shall suffice to note that the FBI is calling on citizens to help identify members of the violent mob of Donald Trump supporters who attacked the United States Capitol on Wednesday in an attempt to stop Congress from tallying the Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president.
It was the first time since the Constitution was ratified on June 21, 1788, that a President of the United States attempted to overturn the results of an election and remain in office after the election of his successor had been certified by the states and the District of Columbia.
A violent mob of Donald Trump supporters, urged to action by Trump himself, Wednesday attacked the United States Capitol in an attempt to stop Congress from tallying the certified Electoral College votes declaring Joseph Biden and Kamala Harris the next president and vice-president of the United States.
In that, they failed.
But for hours they laid siege to the seat of the American government, marauding through the halls, vandalizing offices, occupying the chambers of the Senate and the House of Representatives, and preventing the members from attending to the business of the day. Before the insurrection was quelled, shots had been fired inside the Capitol and on the grounds, tear gas and flash bangs had been utilized, and four people had died.
We will not know for sure until the official certification. But as of this writing, it looks as if the people of Georgia have come through and elected two Democrats to the United States Senate. That would make the Senate evenly divided, 50 Democrats and 50 Republicans. And in case of a tie vote, the tie is broken by the President of the Senate. “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided” (U.S. Constitution, Article I, section 3). And the President of the Senate is, drum-roll please, the Vice-President of the United States. And the Vice-President of the United States is, rim-shot here, Democrat Kamala Harris!
What does this mean? First and foremost, it means Kentucky Republican Mitch McConnell will get a new title. Minority Leader. And as minority leader, he will be able to control, insert cymbal crash here, absolutely nothing. With the election results still unofficial I am afraid of jinxing something. But I would love to be able to get into McConnell’s face and congratulate him on his new found impotence.
They are battening down the hatches at the White House. But before we get to that, we have another extraordinary court decision to contemplate.
Yesterday the United States District Court for the District of Columbia denied still another request for an injunction seeking to stop Congress from counting the Electoral College ballots declaring Joe Biden the 46th President when it meets tomorrow. The opinion handed down by Judge James E. Boasberg pulls no punches in describing the scope of the plaintiffs’ complaint:
Plaintiffs’ aims in this election challenge are bold indeed: they ask this Court to declare unconstitutional several decades-old federal statutes governing the appointment of electors and the counting of electoral votes for President of the United States; to invalidate multiple state statutes regulating the certification of Presidential votes; to ignore certain Supreme Court decisions; and, the coup de grace, to enjoin the U.S. Congress from counting the electoral votes on January 6, 2021, and declaring Joseph R. Biden the next President.
No sooner had I posted the first installment of this series of columns when events overran its contents. Yesterday the Washington Post released the audio recording of a sixty-plus minute telephone conversation Donald Trump had the day before with the Secretary of State of Georgia, Brad Raffensperger. Raffensperger, a Republican, and Trump have been at odds for weeks. Trump insisting that he won the vote in Georgia but was the victim of massive vote fraud and Raffensperger, noting that he supported and voted for Trump, certifying that Biden was the victor by a margin of 11,779 votes.
When I heard it, my thoughts immediately turned to the first time I heard Richard Nixon’s voice on a recording discussing the Watergate break-in. He was considering having the CIA block the FBI from investigating the connection between the burglars of the headquarters of the Democratic National Committee and the Nixon reelection committee.
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