Why Democrats Should Be Frustrated that the Manhattan Indictment Came First
There was no way to avoid the politics, but there was a way to strengthen the political argument.
I want to make it very clear up top that, given a grand jury examined the evidence and the law as presented by prosecutors and voted to indict, it is entirely appropriate and necessary that Trump be held accountable (finally) for his crimes. (I acknowledge that he’s presumed innocent). That is beyond dispute, and I fully support filing the indictments.
I also acknowledge that I don’t know the specific charges. There could be serious and easily proven tax fraud. But still…
Damn, it is seriously to Trump’s advantage that New York is first and perhaps even more so to the Democrats’ disadvantage.
The fact is, anyone being honest with themselves has to acknowledge that of all the investigations of Trump and possible indictments, this one “appears” to be the most tenuous and most politically motivated, even though I don’t believe for a second it is politically motivated.
Appearances, even wrong ones, matter in politics.
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Six months ago, I called for Merrick Garland’s resignation. Every single time I make this assertion, it is controversial with the readers. Perhaps I should note that I am echoing Adam Schiff, a former prosecutor and someone who has seen ALL the Committee’s January 6th evidence. Schiff has also expressed his “extreme frustration” with the DOJ’s pace. I am also backed up by legendary attorney John Flannery who released a tweet two days ago demanding Merrick Garland’s resignation and chastised Biden for not demanding that Trump respect the FBI and the United States Constitution.
The entire reason that Trump is actually helped by the fact that Manhattan brought the first indictment is that - as near as we can tell, Garland only began investigating Trump and January 6th when Congress humiliated the DOJ by bringing forth such damning evidence. How do we know this? Because DOJ aggressively asked the January 6th Committee for its transcripts. DOJ didn’t have its own transcripts from these witnesses. We also know that just this week, THIS WEEK, Pence is fighting a subpoena for his testimony. That fight should have occurred in July of 2021, back when far more people, even Republicans, had less sympathy for Trump.
That delay has given Trump a huge advantage. Given that the Manhattan D.A. filed the most remote, least serious, and most amenable to an argument that this is just politics. It sets the tone for any indictments down the line.
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Face facts. The closer the indictments come to the 2024 election, Trump’s argument that the DOJ is only trying to take him out as election interference resonates stronger with some. That was always true and only required a contemplative adult to understand. No legal training was required.
Thus it was that there was a timing issue from the very beginning. I always believed it was 50-50 at best that Trump would run again. But as we approached the 2022 election, and the DOJ doesn’t prosecute political figures in the 90-day window prior to an election, the more obvious it became that Trump would have to run if he faced criminal charges post-2022. Running for president or hell, even being president, was his best defense both in the court of public opinion and even in the federal courts.
Indeed, Trump announced weeks after the November election and didn’t start campaigning for months. The key was announcing he was a candidate. It automatically made the context more political though not fatally political.
And what did Merrick Garland do? He f’ing started over, giving Trump the delay he desperately needed by appointing a “special counsel.” We were assured it wouldn’t cause any delay. The very fact that obvious subpoenas are only now coming from Jack Smith - a prosecutor who does seem to have a sense of urgency demonstrates that it indeed did cause a very significant delay.
And so the single most important charges, the fact that Trump essentially led a coup against the United States government, the charges that are obviously the least political, now fall behind a much more tenuous New York case. It sets the “tone” for every possible indictment to come. Trump can continue to pound on the “election interference” with overtones of the New York case resonating in the MAGA’s mind.
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OH, and now we also have another highly significant problem! A New York attorney just said that it usually takes 18 months to get to trial. Add that up. And know that Trump’s attorneys will file every motion possible to delay the proceedings.
The problem is even worse in federal court because, well - obviously, Trump hasn’t been indicted in any federal charges and, generally, when a defendant is out on bail, federal dockets are busier and criminal trials take longer from the time someone is indicted.
So now, the feds are in a real dilemma. A trial date set after the November 2024 election would do no good at all if Trump wins the election - and many of you know that I think the chance that Trump wins the election through “gamesmanship” with the electoral college is far too strong. And the moment Trump’s hand comes off the Bible, he will pardon himself.
*(Personally, as a lawyer, I don’t believe that the presidential pardon power extends to himself, and I would litigate it even with this SCOTUS. Yes, the Constitution says “anyone.” But just using plain English language, one only “pardons” other people. “I beg your pardon.” No one says “I pardon my decision to…” )
If the DOJ prosecutors move to “speed up” trial proceedings, it gives Trump an even greater ability to say, “See! They are hurrying because they’re trying to wipe me off the election map! That was the point of it all!
The tone will go back to the Manhattan case, the one that “proved” to MAGAs that all of this was political. It will all blur together.
Just imagine the difference if it were a mid-2022 trial on January 6th or a December 2022 charge for the files case. The case regarding the files is the single strongest because there is a direct tie to Trump and obstruction of justice. We know he lied. Period. That’s obstruction of justice even without proving espionage and illegally handling top-secret documents.
Instead, Manhattan sets the tone of criminal accountability.
**** Summary
Not for one minute do I buy the excuse that the January 6th case was too complicated to bring a year ago. The DOJ was able to indict, try, and convict charges of sedition against the Oath Keepers and Proud Boys. Sedition requires complex, specific evidence that is just as hard to obtain as would be against Trump. It is also a highly technical law and hard to prove. They got it done months ago. Of course, they started investigating immediately.
Additionally, the DOJ didn’t need to charge every January 6th crime simultaneously. They had very simple crimes associated with January 6th that could have been filed. One that I heard from a former US Attorney on television was Trump’s crime in attempting to prevent Mike Pence from performing his Constitutional duties. Of course, that would’ve required subpoenaing Pence in July of 2021. But the DOJ could have brought that very simple case and then amended charges (as happens all the time) as more evidence was gathered on complex matters.
As of today, Mark Meadows, the center of every spoke in the White House wheel, has not testified to the grand jury. It is on appeal. I mean, come on.
Had any of these charges come first, but especially any associated with January 6th - simple ones that could be amended later to encompass the serious ones - then it would’ve happened prior to the 2022 election and prior to Trump declaring he was a candidate for president and - most importantly - prior to indicting Trump on the weakest state case, the one most tenuous.
Now, with Trump leading in the polls for the Republican primary, he gets to say, “This is the only way they could beat me,” and he will pound the point, “They started with just a stupid old crime that was purely political.” It isn’t true, it’s not a stupid old crime, but that will ring the MAGA mind.
The tone is set, and it’s simply unforgivable. Trump will take advantage of it. Democrats have to stay silent (in any criminal charges), and it most certainly will matter. Maybe I should ask Adam Schiff to co-sign this article.
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jmiciak@yahoo.com, @JasonMiciak
Zags got absolutely hammered last week. So we’re back to deserving beaches! This week, we visit Borneo because why wouldn’t we?
Jason as you well know, even though IANAL I have made so many of the same points you have made here to anyone who would listen, for a very long time. You are singing in four-part harmony to the choir here, sweetie. I got a lot of crap from people for advocating for Garland's resignation for his interminable ass-dragging. Meanwhile the Repukes continue their march for Biden's impeachment. I so wish Smith could have been on the job earlier, I really like him, he is not playing around.