As it happened, I caught Neal Katyal on MSNBC the other night where he tried out his “three audiences” theme to the most obedient audience possible. It didn’t work then, and it doesn’t work in his effort to manufacture an excuse for Attorney General Merrick Garland’s failure to do what he, channeling Larry Tribe, contends is unquestionable. Why has the Department of Justice not prosecuted Donald Trump?
Critics of the hearings who say they are too detailed and dry miss the multiple intended audiences. When I argue before the United States Supreme Court, there are several audiences. One is the nine justices. Another audience is the public — both in the courtroom and listeners online. And there’s a third audience: history.
Does it work for you? Probably not, but that’s likely because you’re a lawyer and realize this is nonsense. When he, or anyone else, argues before the Supreme Court, he argues to win that case. It may also play with the public, and historians may someday parse the argument, but if he loses before the Supreme Court, nothing else matters. And if he’s serious about dividing his focus between winning the case and how the public and historians will feel about him, then he has no business being in the well representing a client.
The January 6 Committee isn’t a court, and its purpose can be framed in various ways to make it sound better or worse, more or less political. That Trump’s claim was, as Bill Barr profanely expressed it, “bullshit” is interesting not so much for its substance, but for the fact that insiders, denominated “Team Normal,” told Trump it was false. “Team Rudy” argued otherwise because of course it did. And so the committee, bipartisan to Dems and made up of Dems and RINOs to MAGAheads, is putting its evidence on the table for all to see in the hope that anyone open to the possibility that Trump is a lying, amoral, vulgar, narcissistic ignoramus will see it for themselves.
But if it’s so clear, so obvious, what the hell has Garland been doing over the past 17 months? This is where Katyal’s “three audiences” theme comes into play.
Merrick Garland and high officials at the Justice Department, not nine justices, are the immediate decision makers. Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.
Katyal is arguing that the DoJ is one of the three audiences of the Committee, waiting patiently to see what it finds, whereupon he will pick up the gauntlet and prosecute Trump.
But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.
Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.
He “may” have. He may be a space alien. But as Katyal correctly notes, there has been no sign from the DoJ of any investigation into Trump’s role in the insurrection, for if there had been, there isn’t a chance in hell that it would not be known. Put aside whether there would be a prosecution following an investigation, a separate question. There has been no investigation.
Is Garland biding his time while the 1/6 Committee puts on its show to see what it comes up with, to see how the public reacts, to figure out how history will judge him for his action or inaction? He knows that no former president has ever been prosecuted. He knows that the nation is divided, and that a not insubstantial portion of the nation will perceive any attempt to prosecute Trump as pure partisan politics, just as it perceives the Committee’s investigation.
But Garland knows something that Neal Katyal apparently doesn’t. Cheap talk on MSNBC or the Times doesn’t a case make. Fuzzy argument may serve for punditry, but a trial will require evidence beyond a reasonable doubt of every element of a crime. And even if he produces that evidence, it will be spun by unduly passionate as lies to get their adored Darth Cheeto.
And even though this should seem too obvious to need saying, we’re almost two years past Trump’s unceremonious ouster, and the DoJ hasn’t gotten off the dime. There isn’t a chance in hell that he could bring a case to trial before the 2024 election even if he indicted tomorrow. To the extent there was a window of oppotunity, there remains at most the tiniest crack as it’s slamming shut.
What the January 6 Committee is doing, and has done, is shift the onus onto Garland. The committee can’t bring criminal charges, but Garland can. The committee members have repeated Judge Carter’s admonition that a crime is more likely than not. The impression, if not their express assertions, that Trump tried in his own inept way to orchestrated a coup because he couldn’t suffer the humiliation of being a pathetic loser could not be more clear. Is Trump “above the law”?
Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.
If Neal Katyal, a lawyer, a lawprof, a Supreme Court advocate, a former acting Solicitor General and a regular on MSNBC, says so, can the public audience be wrong to believe him?
If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.
The public may care. History will judge. The committee and Katyal are putting the screws to Garland to force him to act. But for the attorney general and the assistants charged with trying the case, there is only one audience, the jury. And if the jury returns a verdict of not guilty, who cares how the other audiences feel?
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Oh, I think DOJ is investigating the Trumpies, if for no other reason than it is part and parcel of the 1/6 cases it is charging and prosecuting. But it seems unlikely the Trumpies will ever be charged. Proving all elements is harder than most people think. And Trump is arguable defensible to the crimes that people speculate about, especially as to mens rea. Just hard to see it happening.
I see that Marcy did a twitstream about what the DoJ’s been doing and why Katyal is wrong. It’s unclear to me why she did so and where she’s heading. If anything, it suggests the DoJ investigated and came up empty. But Katyal is using his Times real estate to shame Garland into indicting by spinning this for public consumption that the crimes are now overwhelmingly established.
Can’t speak for Marcy, but I do think Katyal is wrong that it is all clear cut. It’s not. Heck I think he is likely guilty of all kinds of things, but even I probably would not charge him. And, yes, I too have been to the dinner parties you and Gamso have attended, and I too have been that guy with the bad news. Even loyal readers and commenters on our blog get enraged when I remind them that “No it’s not RICO, no it’s not treason and no Trump will likely never be charged.” As I said above, I even think Trump could be defensible. Of course he would need to hire and pay a LOT better lawyers than he is known for.
Not too many serious criminal defense lawyers would be willing to stake their reputation on working with Trump, even if he wasn’t a deadbeat.
These folks, including many of the members of the committee, were squawking about impeaching Trump before he was inaugurated. Holding them up as some reasonable group deciding if Trump committed a crime or not is ridiculous. They decided he committed the crime before the crime was actually committed.
I can’t stand Trump, didn’t vote for Trump, and believe that his actions after the election demonstrate that he’s not fit to be president. I have no opinion as to whether he committed a crime. But if the Democrats (including Kaytal) wanted us to see them as righteous determiners of what Trump did, they shouldn’t have spent the six previous years bleating their credibility away.
Even paranoids have enemies. They hated Trump from the outset, but that doesn’t mean Trump didn’t commit crimes in anticipation of, and in the aftermath of, being a pathetic loser.
I agree completely. The problem is that these people have rendered themselves an unreliable source to tell me if he did or not. As has the vast majority of the American media.
Trump will never be prosecuted. His entire presidency was a TV show, culminating in the 1/6 finale. They don’t prosecute the actors after a successful show ends. The “Democrats” and “Republicans” worked together with the FBI and their trusty “informants” to put on one of the greatest finales that we Americans have ever seen. What a great ending to a 4-year TV drama!
Trump is the greatest reality TV star of our time. Nobody is immune from his charms, not only in the US but worldwide. Either you love him or you hate him. Greatest “president” ever. Of course he’s a terrible human being, but who cares? So is Kevin Spacey, but that doesn’t stop us from enjoying The Usual Suspects.
“And if the jury returns a verdict of not guilty, who cares how the other audiences feel?”
I do, and I think you should too. At some point, the system will contend with the other window that’s slamming shut: Any sliver of hope in regaining the people’s faith in our public institutions.
“Any sliver of hope in regaining the people’s faith in our public institutions.”
Dude, that ship sailed a long time ago, way before Trump.
At a dinner party last night, the subject of criminal charges came up. To the dismay (or at least disappointment) of the others at the table, I explained that Trump wouldn’t be criminally charged, that if he were charged he wouldn’t be convicted, and – as an aside, that if he were charged it would seal the fate of Dems for the next few elections and that if he were somehow charged he’d be pardoned by whichever R got elected President in 2024.. I added that while I wouldn’t be surprised to find that he was factually (regardless of whether legally) guilty, it also didn’t much matter for the questions of whether he’d be charged or convicted.
All that seemed to me self-evident. But i was the only lawyer (and a criminal defense lawyer at that) at the table.
I’ve been at that same dinner party. A few times already.
along with…
A clown show within a clown show, as they don’t really want Trump to be prosecuted. At the moment, the prospect that he might run again is the only thing that gives them any hope.
I take it you don’t do your own appeals. Trial work is mostly a one-off, you want the jury on your side, but even then, you are creating an appellate record, so you have at least two audiences. When you’re up in front of whatever number of robes decides legal issues, now you’re trying to win, but you’re also cognizant that future cases will come that reinterpret what is happening in your case. Your point- that you should just be trying to win, is actually a bit of a non sequitur, in that what I have experienced is appellate attorneys that think a case is a loser and so they don’t really fight for it. The other two audiences Katyal is talking about are what drive you to make your best argument knowing you probably cannot win given the current robes in front of you.
Similarly- Katyal’s point is that he doesn’t care if Garland wins, he just wants a trial to show the good guys tried.
That all being said, for the reasons stated by Gamso- that’s a terrible idea.
In fact, I do my own appeals. But just like trial, I do them to win, not to make excuses for failing. Clients prefer it that way when they aren’t stuck with you for lack of ability to retain a lawyer of their choosing.
The more I hear from Jay, the sadder I feel for his clients. He really doesn’t get what lawyers are supposed to do. Sad.
I bet he never gets their pronouns wrong. They probably write letters from jail thanking him for being so empathetic.
I’m among the many who would love to see Il Douche doing the perp walk, but will accept the wisdom of those more knowledgeable/ experienced in these matters as to the inadvisability/ unlikelihood of Garland/ DOJ doing prosecuting him.
Is there a greater likelihood of charges being brought against Il Douche in GA for election interference? If so, is there much likelihood of his being convicted? His imploring Raffensberger to find 11,000 votes seems pretty damning to me, but IANAL.
TIA for your considerate and thoughtful replies.
I can’t speak for anyone else here, but I still lack the ability to see into the future, Hal.