The January 6 Case Against Donald J. Trump

To anyone who followed the events between the 2020 election and January 6, 2021, the notion that it would be difficult to prove Donald J. Trump guilty of multiple crimes against the country is ludicrous. The story teems with plots to overthrow the election of Joe Biden. The man attempted to end American constitutional democracy in the most treasonous act against the United States since secession.

And yet the three statutes that Special Counsel Jack Smith enumerated in his target letter to Trump — conspiracy, witness tampering, deprivation of rights — seem timid. But as attorneys speculate on what events they likely refer to, they take on some gravity, so it’s wait and see. In the meantime, below we spin out the back stories behind each.

statute #1: conspiracy and the fake electors

There is some agreement that “conspiracy” will expand to “conspiracy against the United States” and that Smith has shown particular interest in the “fake elector” scheme.

The state legislatures were to send “slates” of electors to Congress on January 6th to submit the Electoral College votes awarded to the winning candidate in their state.

Certification of their submissions is a ritual called for by the Constitution.

The extremely close election hinged on narrow Biden wins in a handful of states. To block or at least delay by dispute and confusion the certification of those states, several in Trump’s circle came up with a scheme to create fake slates of electors to challenge the official rosters. The genesis came from Trump’s energy secretary and former Texas governor Rick Perry who, just one day after the election, urged an “aggressive strategy” in a text message to Trump’s Chief of Staff Mark Meadows for Republican legislators to “just send their own electors to vote and have it go to the [Supreme Court].”

With court cases failing, Mr. Trump openly called for state legislatures to reverse the votes in their states, claiming imaginary fraud and tweeting his reinterpretation of how America should work

“Hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done to maintain the integrity of our Elections, and the United States of America itself”.

Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, pressured 29 Republican state lawmakers in Arizona to set aside Joe Biden’s popular vote victory and choose electors who would vote for Trump. Most states have passed laws that require their legislatures to honor the majority vote, but for a president concerned only for retaining power, the tradition of legislatures following the will of their people was just another norm to trample.

Trump was directly involved in the scheme. The president even brazenly invited two Michigan legislators to the White House; the state’s senate majority leader and house speaker did not succumb to the pressure. Trump and crew went after the certification boards of large counties, asking them to withhold their vote. Measures were attempted to delay certification of Biden-won states on the December 14th deadline when delegates were by law to meet and register their Electoral College votes. Longtime election lawyer and expert Ben Ginsburg, a Republican, said,

“It’s totally unprecedented for any candidate, let alone a sitting president, to interfere with a state’s certification process”.

John Eastman, a California lawyer and professor associated with the Claremont Institute, a conservative think tank, produced a memo that proposed recruiting alternate — that is, “fake” — electors for the states closely lost to Biden. “I love it”, Meadows wrote in a text exchange with Congressman Andy Biggs after he had been briefed on the scheme. Was he the decider? Trump campaign associate general counsel Joshua Findlay told the January 6 committee investigators, “It was my understanding that the president made this decision”.

Fake elector lists were developed for five states — Arizona, Georgia, Michigan, Nevada and Wisconsin. They were even submitted to the National Archives, the correct procedure for legitimate elector slates. A total of 59 individuals from five states signed the documents.

This was no grass roots movement. It bore all the telltales of centralized organization. “A single glance at the five phony certificates shows that they are nearly identical in format and text, right down to the fonts”, pointed out Philip Rotner, a lawyer who writes at The Bulwark.

On January 2nd, Trump, his private lawyer Rudy Giuliani and Eastman engineered a conference call to 300 state legislators to equip them with what they claimed was evidence of fraud and to spur them to “decertify” their elector votes and reassign them from Biden to Trump. “You are the real power,” Trump told them, according to the conservative Washington Examiner‘s report. “You’re the ones that are going to make the decision”, he told them, directly involving himself in the overthrow scheme. Scores of state lawmakers from the battleground states responded, signing on to a letter asking the vice president to delay the congressional acceptance of electoral college votes for at least ten days after January 6th to allow “our respective bodies to meet, investigate, and as a body vote on certification or decertification of the election.”

Trump directly pressured then Arizona Governor Doug Ducey to deny Joe Biden’s election win in Arizona. Video shows Ducey signing the certification for the new president as the ousted president apparently made one last-ditch attempt to change his mind via a phone call.

The assumption of what Smith will prove is that Trump and others conspired to defraud the United States. Had the scheme succeeded, had enough Biden states been flipped to the Trump column, we the people would have had our choice of the next president taken away illegally.

statute #2: witness tampering that’s not witness tampering

Section 1512 of Title 18 of the U.S. Code constitutes a broad prohibition against tampering with a witness, victim or informant, but it includes more than 30 other crimes, one of which pertains to “Whoever corruptly…obstructs, influences, or impedes any official proceeding, or attempts to do so…”.

Smith seems to be aiming at the attempt to obstruct the Congress which met on January 6th for the constitutional certification of Joe Biden as the newly-elected 46th president in accordance with the nation’s near quarter- millennium of democracy.

Vice President Mike Pence, in his other role as president of the Senate, was to count the votes in the joint session of Congress as called for in the Constitution. In the final days beforehand, Trump began a campaign to pressure and intimidate Pence to block or at least delay the certification of the states’ electoral votes. Had the plot succeeded, it would have been an actual stolen election.

On Christmas Eve, the Trump administration called upon John Eastman to write a memo “asserting the vice president’s power to hold up the certification”. Eastman submitted a two-page memo — later expanded — that laid out six steps by which Pence could halt the Electoral College count and go on to win for Trump a second term.

On January 4th, Trump met with Pence and Eastman in the Oval Office. Eastman told Pence that he had the constitutional authority to stop the certification process. Pence disagreed, for the good reason that the Constitution provides no such authority. The Twelfth Amendment says only that the vice president “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted”. He was only to preside. There is no further mention of his duties or authority.

As the zero hour of January 6th approached, Trump lieutenants booked as their “command center” a suite of rooms at the pricey Willard Hotel a block from the White House to make final plans. Phone records have Trump calling Giuliani and Steve Bannon at the Willard, evidence that he was fully aware of the conspiracy afoot.

On the morning of the 6th, after tweets from the residence to remind Pence once again that he had the supposed power to delay certification when he presides that afternoon, Trump called Pence to make one final effort. Earlier that morning Pence had been “very arrogant” in response to Trump’s pressure for him to disrupt certification. A number of people were in the Oval Office. They could not hear Pence’s side of the conversation, but several gave the January 6 committee accounts of what Trump said that were mutually consistent. When Pence would evidently still not relent, Trump upbraided him in the vein of, “You’re not tough enough to make the call”. In “Peril”, authors Bob Woodward and Robert Acosta aver that Pence told Trump, “When I go to the Capitol, I’ll do my job” and not block Biden’s certification. That angered Trump, who answered,

“Mike you can do this. I’m counting on you to do it. If you don’t do it, I picked the wrong man four years ago. You’re going to wimp out!”

Ultimately, the Willard committee settled on only having Pence refuse to count Biden’s electors in the swing states that Trump had narrowly lost and then call for a week’s delay, supposedly for the states to resolve concerns about conjured voting irregularities and come up with electors for Trump to replace their original slates for Biden. Or come up with deadlocks that would throw to the House of Representatives the vote for who was to become president, a vote that Trump would win because each state constitutionally has a single vote in this Twelfth Amendment special circumstance and there are more Republican dominated states.

Pence’s cooperation was apparently assumed. But the vice president was not on board.

Republicans in Congress did follow their plan to object to certain states’ submission of electors. It is a process that requires at least one member each of a state’s House and Senate delegation to object to that state’s elector slate, followed by debate, after which all in both chambers vote. This had begun. Arizona Congress members had challenged the slate of electors the state had submitted when the mob crashed into the building causing a lockdown.

When sessions resumed at around 8:00 p.m., lawmakers continued with an objection by a Pennsylvania representative and senator, but then dropped the rest of the states they had planned to challenge. What was extraordinary was that so effective had been Trump’s undermining of the election that there were challenges. Of the 535 total of senators and representatives, a stunning total of eight senators and 139 representatives voted with the two states’ objections in a bid to overthrow the election and keep an illegitimate Trump in the White House.

At the protest rally on the Ellipse, the then-president implicated himself still further.

“All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people. ..And I actually, I just spoke to Mike. I said: ‘Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.’ And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.”

statute #3: deprivation of rights

The surprise in Smith’s letter is his wielding of Section 241 of the criminal code which makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” It dates from Reconstruction after the Civil War to give federal agents the means to arrest southern Whites who were terrorizing newly-freed Blacks to prevent them from voting. Infrequently used today, it has

legal talent on television talk shows straining to come up with likely scenarios of how Smith & Co. will apply it.

Here’s our recommendation and perhaps a bet: Smith might have tacked on that third statute only to condemn Trump for his particular act of vengeful persecution that ruined the lives of two election workers in Georgia — Ruby Freeman and her daughter Shaye Moss — which brought them death threats from the White supremacist deviants forcing them out of their homes. Trump repeatedly accused them of processing a suitcase of phony ballots for Biden without any evidence whatever and even after video of the Atlanta site completely debunked the lie. Both testified before the January 6 committee, Freeman saying,”There is nowhere I feel safe. Nowhere” and choked with emotion asked, “Do you know how it feels to have the president of the United States target you?”.

more to come?

Conspicuously and disappointingly absent is the charge of insurrection. Smith dodged it as a charge, say legal savants, because it could be difficult to connect Trump directly to what happened at the Capitol despite the obvious: there would have been no one at the Capitol had not Trump told them to come.

And what about the conspiracy of the Big Lie, the fantasy of the stolen election, as an enormous fraud perpetrated on the American public that poisons the minds of tens of millions of Americans still?

Clearly, this story does not end with Smith’s three items. We expect to hear protests that he has not gone far enough.

Jul 21 2023 | Posted in Law | Read More »

Xi Jinping, Irate at Our “Containment” and “Encirclement”, Doesn’t Mention His Infiltration.

Secretary of State Antony Blinken had just restored tentative relations with China, having met with President Xi Jinping for 35 minutes at the Great Hall of the People along Tiananmen Square, when a day later President Biden uttered another of the
Illustration for a 2020 New Yorker article
“The Future of America’s Contest with China”

gaffes for which he is famous. Talks had broken off after China floated a spy balloon across the entire United States at the end of January. At a California fund-raiser, Biden explained that Xi’s not even knowing of the existence of the balloon with its “two box cars of spy equipment” was “the great embarrassment for dictators, when they didn’t know what happened“. Calling Xi a dictator is a perfect fit to Michael Kinsley’s definition of a gaffe — “when a politician tells the truth” — but the Chinese erupted. That they know it’s true was betrayed when China’s media had difficulty explaining Biden’s insult to the Chinese people because “dictator” is a banned word.

Biden’s putdown was all to the good, we’d say, as something of a corrective to the groveling posture the U.S. has assumed toward China, now that relations have taken a decidedly disputatious turn. We have been made the supplicant, traveling to Beijing ritually bowing to implore forgiveness for having sent up an F-22 to shoot the thing down.

Treating our ambassador Nicholas Burns like a schoolboy in the principal’s office, China’s foreign minister, Qin Gang, told him it is our “series of erroneous words and deeds” that has caused the rift, soon after its warships had cut across the bow of ours. It is for America to conduct itself responsibly if we want continued relations with China. Their top diplomat, Wang Yi, urges the United States to manage differences with Beijing and “reflect deeply”. Chinese media regularly attacks the U.S. on human rights, racism, and gun violence, describing our democratic system as “troubled”, “messy”, and “in constant decline”.

how our diplomats could have countered

Let’s look at China’s conduct toward the U.S. over the last couple of decades. This will take some time, but shouldn’t every American be more aware of this?

One in five America–based companies say that China has stolen their intellectual property. The count is undoubtedly higher owing to many companies’ aversion to the publicity of revealing security breaches. So estimates are iffy, but a 2013 study estimated that as much as 80% percent of the $300 billion in yearly losses suffered by U.S. companies from the theft of intellectual property was attributable to China. A more recent look at the U.S. economy projected the theft to have cost us more than $600 billion per year. Neither figure counts the ongoing cost of the competing businesses the thefts create against our victimized businesses.

 
China has targeted our military and defense contractors, walking off with plans for supersonic anti-aircraft missiles, stealth technology, and, it is believed, terabytes of stolen data related to the F-35 fighter jet program.

 
It has used cut-out companies to buy restricted technology, such as a company purporting to improve web access in Africa buying a satellite from Boeing, until it was discovered that the $200 million payment came from a Chinese financial firm using offshore companies to disguise the money’s source.

 
It diverts goods such as solar panels through cut-out companies in Asia to skirt U.S. tariffs. It has bought control of U.S. companies — e.g., a California maker of small recreational, amphibious planes but with military applications — only to move the company’s technology to China.

 
China seeks out members of the Chinese diaspora in the U.S. at companies and universities in a process that lures them into turning over research materials and manufacturing trade secrets. On the trail of one recruiter, CrowdStrike, a cybersecurity firm, discovered that members of his network were at companies that were subcontracting to General Electric/Safran Group to build the engine for China’s first airliner, the C919. The plot was to steal proprietary technology from all of them so that China could learn how to make the engines itself.

 
Soft drink cans are lined with a plastic to prevent interaction between the drink and the aluminum. When commonly used bisphenol-A (BPA) was found to be hazardous to human health, Coca-Cola spent $120 million to come up with a substitute. A Chinese former chemist at Coca-Cola is serving 14 years for stealing the trade secrets.

 
DuPont perfected the multi-step process of extracting pure titanium white from titanium dioxide, which is used in paints, plastics, paper — a long list. The company has said it spends $150 million a year to improve the process. A Chinese technology consultant is serving a 15-year sentence for stealing and selling the information.

  Several Chinese citizens have been prosecuted in recent years for stealing or conspiring to steal American agricultural technology. A Chinese man was spotted in 2016 in an Iowa corn field digging up DuPont’s experimental seeds. Two others were seen in a field 85 miles away digging up Monsanto’s genetically modified seeds, the product of an $800 million research program.

These few examples only hint at the Chinese infiltration of this country. A year ago, FBI Director Christopher Wray and the head of Britain’s MI5 intelligence agency, Ken McCallum, gave an unprecedented joint address openly warning business leaders that Beijing is out to steal the proprietary knowledge that is their most valuable asset. Good, but that was more than a decade late.

The FBI says it opens a new China-related counterintelligence case about every ten hours. Of the nearly 5,000 active FBI counterintelligence cases currently under way across the U.S., almost half are related to China, they report. Republicans in Congress, however, want to defund the FBI.

ccp’s most wanted

In the U.S., it came as startling news last fall when the FBI raided in New York City’s Chinatown an outpost that conducted police actions against Chinese in this country. Quickly referred to as a police station, its purpose was to locate dissidents or those accused of crimes
China “police station” infiltrated into an upper floor of a nondescript building (center) in New York City’s Chinatown.

who had fled to the U.S. and, with intimidation and threats to family members back home, repatriate them to China for prosecution or imprisonment. A note tucked into the door of his New Jersey home told one Chinese immigrant,

“If you are willing to go back to mainland [China] and spend 10 years in prison, your wife and children will be all right. That’s the end of this matter!”

The human-rights organization Safeguard Defenders has exposed this as a worldwide operation. Begun in 2014 and with even a name — Operation Skynet — Safeguard says it has found more than 100 Chinese police outposts in 53 countries. A Chinese pro-democracy activist living in Los Angeles, where Safeguard Defenders found another police station, fled China in 2018 where he said he was attacked, stabbed, arrested, and tortured in a psychiatric hospital for advocating for better labor rights. He said to the PBS NewsHour:

“When I arrived in the United States. I thought that there would be fewer threats, but it feels like the Chinese Communist Party is everywhere in this country.”

Beijing believes it is their right to infiltrate other countries and flout their sovereignty with impunity. They claim more than 10,000 people have been repatriated from more than 120 countries. Washington has known of the Chinese infestation but there is little evidence of any concerted effort to expunge the U.S. of a police force from another country in our midst.

the ministry of truth

China has inserted its tentacles into the U.S. through every opening it can find.

Millions of Chinese speakers in America get their news from SinoVision, a Chinese-language TV broadcaster, and Qiaobao, one of the largest
If Xi Jinping doesn’t want to come across as a dictator, he might want to tone down the décor.

Chinese-language newspapers in the U.S. Both are subsidiaries of the Asian Culture and Media Group, an arm of the Chinese government. Staff learn their trade at the state-owned China News Service before assignment to the U.S. Stories fed to these outlets come from state-owned media. There is also the Chinese-language newspaper in the U.S., The World Journal. In cable, China Central Television and Hong Kong’s pro-Beijing Phoenix TV dominate the offerings. It is a safe assumption that these media get sizeable financial support in return for relaying the Beijing message.

In return, there is nothing of the U.S. in China, and, of course, Facebook, Twitter, WhatsApp, and so on arte banned.

educational “exchange”

Cultural and language exchange programs between countries have a long tradition in academia but they can make for an avenue for propaganda. China has some 600 so-called Confucius Institute programs at U.S. colleges and universities. Funded by the Chinese government, their stated mission is to “promote and teach Chinese culture and language” but is more observably to pacify notions that China poses any threat to the U.S. Our counterintelligence officials say the government-chosen teachers should be required to register as foreign agents. A Senate panel recommended that the centers be abolished. It is worth noting that an American equivalent in China is disallowed.

thousand talents

China has exploited the free entry of countries such as ours to establish a recruitment network, the Thousand Talents Program, to attract scientific and technological talent. There is the view that scientific collaborations should be encouraged globally. Scientists typically give little thought to the national security implications of research shared with their counterparts in other countries. In a Journal piece, a writer said,

“When I joined the U.S. Department of Energy in 2017, I was briefed about how pervasively the Chinese Communist Party had woven itself into the U.S. government’s research and innovation efforts”.

He learned that some were even paid by the CCP’s Thousand Talents program while working at the department’s National Laboratories where work on, say, plasma science can pertain to electricity production via nuclear fusion, but also can be used to make thermonuclear weapons.

In 2018, prompted by alerts from the FBI, the National Institutes of Health sent out 18,000 letters urging administrators to be vigilant in safeguarding research product. It triggered nearly 200 investigations by the FBI at 71 institutions, including many of the most prestigious medical schools, to root out scientists stealing biomedical research. Almost all involve scientists of Chinese descent including naturalized American citizens.

Another FBI sweep in 2020 targeted researchers connected to the Chinese military. One studying artificial intelligence is accused of destroying evidence; another researching fluid dynamics at the University of Virginia is charged with stealing decades of proprietary software code developed by his adviser.

That August, Assistant Secretary of State David Stilwell ordered that the Chinese consulate in Houston be closed, giving them 72 hours, and telling the Chinese to remove all its military researchers from the U.S. It was a hub for Chinese researchers in areas such as biomedicine and artificial intelligence who had kept hidden from immigration authorities their active-duty status with China’s People’s Liberation Army. The investigation has led, said the Journal to…

“intensifying cat-and-mouse tactics involving what prosecutors say are foiled escapes, evidence tossed into a dumpster and a chase through an airport.”

The Chinese have even infiltrated a network of informants at the Federal Reserve. Employees are asked to provide information on the U.S. economy, interest-rate changes and policies in exchange for cash payments, according the 2022 report of an investigation by the Senate’s Committee on Homeland Security and Governmental Affairs. One Fed economist on a trip to Shanghai was threatened with prison unless he turned over non-public information. Accused of a failure to combat the threat effectively, Fed Chairman Jerome Powell rejected the committee’s findings, claiming “our processes, controls, and technology are robust and updated regularly”.

student pawns?

By just before the pandemic, there were over a million students from other countries at American universities, half of them from China, an influx that had risen by 276% over the decade. Chinese graduate students receive 13% of all science and engineering doctorates awarded by American universities. When we consider how the Chinese Communist Party reaches out for its own in this country, there is concern that Chinese students and researchers are being intimidated into siphoning away a great deal of American intellectual property and how much of it might be routed to the Chinese military. Under the Trump administration, the FBI launched a program to prevent the theft of economic and scientific work from universities. Chinese scientists and engineers felt they were being unfairly victimized, so the Biden administration terminated the program last year.

foothold

That China has been buying land in the U.S. over recent decades has attracted attention only recently, not least because the Chinese seem pointedly to buy land near our military bases. When a Chinese billionaire bought more than 130,000 acres in Texas, some near a U.S. Air Force base, to construct a wind farm, the state banned infrastructure projects by entities connected to China. A Chinese company purchased a corn mill in North Dakota not far from a base. The Air Force in January called it “a significant threat”.

Both chambers of the Democratically-controlled California legislature passed a bill that would have halted the sale of the state’s farmland to foreigners. Governor Gavin Newsome vetoed it.

Eleven states have been working up legislation that would restrict foreign ownership of land, clearly aimed at Beijing out of concern that China, needing more arable land, looks to use American soil and water to feed its enormous population, which, if allowed to expand, could someday impinge on our own food supply.

data more valuable than oil, said The Economist.

In June of 2015, the Chinese extracted 22.1 million records from the U.S. Office of Personnel Management, records that contained names, addresses, dates of birth, Social Security numbers of those who had undergone background checks for security clearance as well as members of their families. It is unknown what was done with the trove. Speculation is that the Chinese spy agency could look for Chinese names as targets to exploit.

But it may have been just part of China’s obsessive “all-of-nation” gathering of all personal data it can scoop up in this and other countries. Americans hand over their personal data in mobile apps, social media, and email without a thought. And there are “data brokers” who amass vast databases with billions of consumer transactions that are rented for one-time use, but the Chinese would of course steal them. And now there’s TikTok where stealing is unnecessary. What data Americans offer up goes straight to the Chinese company that owns it. They say the data is kept private, but under the Chinese Communist Party’s intelligence law, companies must turn over whatever the CCP demands. It’s a safe estimate that if you are an American it is more than likely that China has already made off with your personal data.

pickpocketing Americans

In China, American companies have long been forced to enter into partnerships with local companies as their ticket to the Chinese market. The terms call for mandatory, or at least coerced, technology transfer. China argues that the practice is “voluntary” because American firms aren’t forced to do business in China; they can stay out of the country. Although the Chinese practice is extortion and violates World Trade Organization rules, American companies don’t bring cases for fear of retaliation by Beijing.

And so, with no thought to the future competition they were creating, lusting only to make money, U.S. companies went along, betraying their own country, handing over the fruits of American innovation and sending some six million American manufacturing jobs offshore.

At the beginning of 2011 we saw General Electric share its most sophisticated airplane electronics with a state-owned Chinese company, extending even to the ultra-high-tech computer system that went into Boeing’s 787 Dreamliner, governing the plane’s navigation, communications, cockpit displays and controls. GE was not alone; a roster of U.S. companies helped China’s project to build an advanced civilian aircraft.

The upshot? May 29, 2023: Reuters reports that China Eastern Airlines Corp Ltd just entered China’s home-grown narrow-body C919 jet into passenger service and completed its first commercial flight. President Xi Jinping hailed the project as a triumph of Chinese innovation.

China’s aim is to shut out Boeing and Airbus in order to — as with a long list of key industries — become self-reliant, part of its “Made in China 2025” objective to sell everything to the rest of the world while importing as little as possible.

Running for president in 2004, Democrat John Kerry dubbed American chief executives selling out to China “Benedict Arnold” CEOs. He was widely denounced.

Beijing may have decided that it has exfiltrated all that’s useful from American companies in those coerced partnerships, which would explain the harassment which has become the norm over the last few years, with raids on American offices and ill treatment of our diplomats.

Finally, we now we learn that China plans to spend a billion or so to develop a spying operation in Cuba, which lies 90 miles from our shores. And we’re told that China will of course do its best to control supplying Mexico with fentanyl precursor because it surely wouldn’t want to kill Americans.

Yet Xi Jinping says it is the United States that engages in “containment” and “encirclement”.