List of Charges
Twice-impeached former-President Donald Trump is drowning in litigation. He is the target of (at least) four criminal investigations. The Manhattan District Attorney’s probe of hush money payments is the one we’re hearing the most about right now. But it’s probably the least of his problems. The Georgia election fraud investigation, including Trump’s call to Brad Raffensperger, risks more serious charges.
But, it’s in the two Federal investigations Trump faces that risk the greatest danger, both to his freedom, and his political career. With the testimony of his attorney, the classified documents case is now “blooming” into an obstruction of justice investigation. But the most dangerous case of all, is the Federal investigation into Trump’s role in the January 6th Insurrection. At worst for him, that case could result in conspiracy to commit insurrection, potentially a twenty-year jail sentence.
Progressive commentators have been “bad-mouthing” the Federal Insurrection investigation for years. When the January 6th Committee was holding hearings last summer, it seemed that their testimony was all “new-news” to the Department of Justice. The typical “bottom-up” organized crime investigation of the FBI goes on after more than two years. It didn’t made the “jump” from the rioters on the steps to the organizers in suits and ties (or three shirts and khakis).
But last Friday that changed.
Pierce the Veil
The Federal Court ordered several of Trump’s closest staff members to testify to the Insurrection Grand Jury. It’s a roll call of the former President’s closest advisors. It includes his Deputy Secretary of Homeland Security Ken Cuccinelli, White House aides Nick Luna, and John McIntee, National Security Advisor Robert O’Brien and Director of National Intelligence John Ratcliffe.
Also required to testify are three even closer to the former President: advisors Stephen Miller and Dan Scavino (who controlled the President’s Twitter feed), and, at the true center of the storm, Chief of Staff Mark Meadows.
All of these former officials claimed exemption from testifying based on “Executive Privilege”. They believe their advice, conversations and actions were protected from inquiry by the Presidential confidentiality to conduct business. But the Court saw it differently. Much as the attorney/client privilege of confidentiality can be “pierced” by the crime/fraud exception when both are engaged in criminal activity; the Court found that the possibility of a criminal conspiracy among those officials requires their testimony.
The man closest to the President in the days leading up to January 6th was Mark Meadows. The testimony of his assistant, Cassidy Hutchinson, to the January 6th Committee was devastating to both Meadows and Trump. But only Meadows can speak first-hand to what Trump knew and didn’t know; did and didn’t do; and wanted or didn’t want.
Top of the Pyramid
Meadows is the “top of the pyramid” of the potential conspiracy to disrupt the government. He can speak to what happened and who did it, now that the veil of silence imposed by executive privilege has been pulled aside. Meadows has two choices. He can testify, or he can remain silence and face imprisonment. Of course, the Fifth Amendment right against self-incrimination is still avaliable. And that becomes the major decision for Special Federal Prosecutor Jack Smith.
If Smith is “satisfied” with letting Meadows “take the fall” for planning the January 6th Insurrection, he didn’t need to pierce executive privilege, and he doesn’t need to offer Meadows immunity. The testimony of the junior staffers like Hutchinson would be enough. But clearly, the Prosecutor is not satisfied.
Meadows has been on the verge of full cooperation for several months. He even sent many of his communications; emails and texts, to the Committee. It lead to riveting testimony last spring and summer. But Meadows pulled away when it came time for direct testimony, an act correlated to a million dollar donation from Trump sources. Now, with executive privilege gone, Meadows can only fall on his sword for Trump, testify, or take the Fifth.
And Smith can offer some form of immunity, removing the Fifth Amendment from the equation; leaving Meadows with the choice of testimony or jail. Likely, that will make Meadows crack.
Watergate
In the Watergate crisis, the actual crimes took place in June of 1972. It wasn’t until the spring and summer of 1973 and the Senate Watergate hearings that Deputy Assistant Alexander Butterfield revealed that President Nixon was taping all of the White House conversations. The proof was on tape, if Prosecutors could get their hands on them.
It took another full year, the summer of 1974, for the Supreme Court to finally order the tapes released in the case Nixon v United States. Once the tapes came out in July, it was only a couple of weeks before Nixon faced sure impeachment and conviction, and resigned from office in August. He was only able to avoid Federal indictment and conviction by a Presidential Pardon from his successor, Gerald Ford.
Donald Trump dodged responsibility when the US Senate failure to convict in the second impeachment trial. It’s been more than two years since that vote. Now Jack Smith should make “the deal” with Meadows. He needs to demonstrate what the Nation missed in the 1970’s: that this Nation, under Law; will treat its citizens equally at the bar of Justice.
It’s up to Smith.
