The Weak Rule of Law

Political prosecution - good, bad or

something else?

On Saturday, the president called Georgia election official Brad Raffensperger, and attempted to get him to “recalculate” the votes to give the election win to himself, not Biden. The votes in Georgia had already been counted three times and each time the president lost. In asking for such massive voter fraud, the president even threatened Raffensperger with some undefined “criminal offense” for failing to do what the president was telling him to do. The New York Times writes:

President Trump pressured Georgia’s Republican secretary of state to “find” him enough votes to overturn the presidential election and vaguely threatened him with “a criminal offense” during an hourlong telephone call on Saturday, according to an audio recording of the conversation.

Mr. Trump, who has spent almost nine weeks making false conspiracy claims about his loss to President-elect Joseph R. Biden Jr., told Brad Raffensperger, the state’s top elections official, that he should recalculate the vote count so Mr. Trump, not Mr. Biden, would end up winning the state’s 16 electoral votes.

“I just want to find 11,780 votes, which is one more than we have,” Mr. Trump said during the conversation, according to a recording first obtained by The Washington Post, which published it online Sunday. The New York Times also acquired a recording of Mr. Trump’s call.

Clearly, the president is attempting to commit enough voter fraud to change the election outcome in Georgia. Is voter fraud illegal?

Were laws broken?

In theory voter fraud is illegal. When average people are caught doing it, they are generally prosecuted. But as we have seen over the years, laws generally do not apply to politicians like they apply to normal people. The discouraging truth is that the rule of law is weak for white collar criminals, including the president.  Most white collar crime (~98% ?) is never prosecuted and even less results in criminal convictions. The main problem is that evidence of intent to commit a crime is rarely to be found. 

All modern criminals with a tenth-ounce of brain know not to create or keep written or electronic evidence of their crimes or to discuss crimes except via secure phone calls. With no evidence, there are few prosecutions and even fewer convictions. The last, best line of defense against the massive tide of white collar crime is prosecution for tax evasion. Tax documents are written records that must be filed and cannot be avoided.[1] 

The New York Times describes the issue:

The call by President Trump on Saturday to Georgia’s secretary of state raised the prospect that Mr. Trump may have violated laws that prohibit interference in federal or state elections, but lawyers said on Sunday that it would be difficult to pursue such a charge.

The recording of the conversation between Mr. Trump and Secretary of State Brad Raffensperger of Georgia, first reported by The Washington Post, led a number of election and criminal defense lawyers to conclude that by pressuring Mr. Raffensperger to “find” the votes he would need to reverse the election outcome in the state, Mr. Trump either broke the law or came close to it.

“It seems to me like what he did clearly violates Georgia statutes,” said Leigh Ann Webster, an Atlanta criminal defense lawyer, citing a state law that makes it illegal for anyone who “solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage” in election fraud.

At the federal level, anyone who “knowingly and willfully deprives, defrauds or attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process” is breaking the law.

The president broke the law except for two factors. First, he is a white collar criminal and above the law. Second, he will claim he never intended to break the law. Here is how the GOP and defense attorneys spin this according to the NYT article:

Matthew T. Sanderson, a Republican election lawyer who has worked on several presidential campaigns — including those of Senator Rand Paul of Kentucky and Rick Perry, the former Texas governor — said that while it did appear that Mr. Trump was trying to intimidate Mr. Raffensperger, it was not clear that he violated the law.  

That is because while Mr. Trump clearly implied that Mr. Raffensperger might suffer legal consequences if he did not find additional votes for the president in Georgia, Mr. Trump stopped short of saying he would deliver on the threat himself against Mr. Raffensperger and his legal counsel, Ryan Germany, Mr. Sanderson said.

“You know what they did and you’re not reporting it,” the president said during the call, referring to his baseless assertions of widespread election fraud. “That’s a criminal — that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk.” (emphasis added)

Right there is the crime. Its rock solid defense is also in plain view: “It was not clear that he violated the law.” Biden has clearly signalled that he won't defend the rule of law regarding Trump and GOP crooks.[2] Trump is a GOP president, so the GOP as a partisan political power will defend him. Georgia is a GOP state that will not prosecute a GOP president. That's it. That is the whole story. 

Questions:

1. Should Trump be prosecuted for his crimes while in office and all other times, or should prosecution be avoided in the name of political comity to avoid endless partisan investigations and prosecutions of political enemies. That assumes that (1) neither party is capable of investigating and prosecuting its own crooks, and (2) there actually is rough parity in comity between the two parties.

2. Is it better to have few or no prosecutions of political crooks like Trump or to have endless partisan investigations to settle scores and try to gain political advantage and/or to deceive the public? Dark free speech (deceiving and manipulating the public) is legal and very popular among politicians, especially republicans.

Footnotes: 

1. Bipartisan congresses have neutered the ability of the IRS to prosecute tax evasion (illegal cheating) by slashing the budget needed to investigate and prosecute tax cheats. Protecting tax cheats is a bipartisan sport, but the GOP is more enthusiastic and aggressive about blocking attempts to allow the IRS to enforce tax law. That pro-corruption trick costs taxpayers about $700 billion/year, although the IRS feebly asserts that the number is closer to about $400 billion/year. As usual, honest taxpayers are, as Trump would say, suckers, losers and disgusting people.

2. Regarding Biden's tolerance of Trump crimes: “He's going to be more oriented toward fixing the problems and moving forward than prosecuting them.” Biden wants to avoid divisive investigations. Therefore, all the GOP has to do is to make clear they will see any investigations deeply divisive and that will be the end of it. Biden will crumple into a heap of spineless goo. In this regard, Biden is exactly like Obama, who let lots of crooks off without any prosecutions, including every single criminal involved in the massive financial and housing meltdowns. Politicians in the democratic and republican parties are fully in accords with protecting white collar criminals. 

The sleight of hand “logic” used to protect political crooks dates back to president Ford. One source describes the weak rule of law situation like this:

Presidents have historically gone out of their way to avoid using the power of the office to pursue their political rivals. When President George H.W. Bush pardoned six Reagan White House officials who were involved in the Iran-contra affair, he warned of “a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences.” Bush was sparing members of his own party. President Obama created what is perhaps an even more relevant precedent for Biden by choosing not to prosecute members of the George W. Bush administration who had authorized the unlawful torture of detainees; his nominee for attorney general, Eric Holder, used the very same phrase — the criminalization of policy differences — when the issue came up during a 2009 congressional hearing. Over the summer, I asked David Cole, the national legal director of the American Civil Liberties Union, what he thought would happen to Trump if he lost the election. “My gut is that you’re very unlikely to see a federal prosecution,” he told me. “For me, the real accountability will be on Nov. 3, if he is sent packing from the White House.” It was a sentiment that I heard from a lot of legal thinkers and former government officials in the months leading up to the election: The visions of Donald Trump in an orange jumpsuit were more fantasy than reality. His true moment of reckoning would happen at the ballot box. (emphasis added)

There you have it. Crimes by bipartisan politicians are merely “policy differences” even if the policy amounted to actual criminal acts. Did the president try to commit massive voter fraud in his phone call to Raffensperger, or was that just a policy thing? One thing is certain: America's two-party system protects political crooks, including politicians, candidates, crooked partisan pundits, campaign donors and campaign workers.

This is what politics would look like if the law was enforced by partisans,

or does it already look like that? Will this kind of lying and sleaze 

end after Trump is gone because politicians will regain their moral compasses?