To defend the indefensible and itself, the Pentagon lied to the congress and the American people

This is based on a comment PD made earlier this morning. It makes an important point about what the Pentagon did not do during T****’s 1/6 coup attempt. PD wrote: 

Other missing evidence from that day includes Trump's phone logs, the now-controversial "missing texts" of the Secret Service (again, there are competing stories about what happened that day in Trump's car), WH records during the crucial hours of 1/6 including photographs and diary entries that go blank for over 3 hours, et al. For context on the Pentagon lying about Flynn even being on the phone until Jan 20, 2021 when they admitted it, consider that his brother Michael was then, and still is, openly advocating for a coup, declaration of martial law and use of the army to keep Trump in power. Before that, he had advised Trump to order the military to seize voting machines. Whether or not Charles Flynn shares any of his brother's views or not is a speculative matter-- but if the Army had to lie about it, something seems wrong. Especially in light of the 2 testifying National Guard leaders on the phone saying he and Piatt refused to green-light the deployment of the Guard and then lied about it.

He cites this 7 minute video interview with a Politico reporter, Betsy Swan. She pieced the Pentagon’s lie together and reported about it. In her December 2021 Politico article, ‘Absolute liars’: Ex-D.C. Guard official says generals lied to Congress about Jan. 6, describes a terrifying story about how mendacious, morally rotted and anti-democratic the Pentagon had become under T****.

Swan’s Politico article comments:

In a 36-page memo, Col. Earl Matthews, who held high-level National Security Council and Pentagon roles during the Trump administration, slams the Pentagon’s inspector general for what he calls an error-riddled report that protects a top Army official who argued against sending the National Guard to the Capitol on Jan. 6, delaying the insurrection response for hours.

Matthews’ memo, sent to the Jan. 6 select committee this month and obtained by POLITICO, includes detailed recollections of the insurrection response as it calls two Army generals — Gen. Charles Flynn, who served as deputy chief of staff for operations on Jan. 6, and Lt. Gen. Walter Piatt, the director of Army staff — “absolute and unmitigated liars” for their characterization of the events of that day. Matthews has never publicly discussed the chaos of the Capitol siege.

“Every leader in the D.C. Guard wanted to respond and knew they could respond to the riot at the seat of government” before they were given clearance to do so on Jan. 6, Matthews’ memo reads. Instead, he said, D.C. guard officials “set [sic] stunned watching in the Armory” during the first hours of the attack on Congress during its certification of the 2020 election results.

This helps add context to what happened during those three hours on 1/6. While T**** was refusing to act to stop the ongoing coup attempt, the Pentagon was doing the exact same thing. That non-action can reasonably be called committing treason.

Qs: Who has more credibility here, the Pentagon's Gen. Flynn and Gen. Piatt and their claims of innocence, or former D.C. National Guard official Col. Matthews and his assertion they lied and committed perjury? What are the odds that Merrick Garland will prosecute any Pentagon general for perjury, 0%, ~1%, ~10%, higher? What are the odds that the Secretary of Defense will fire Flynn or Piatt? 

Matters related to the 1/6 coup attempt are not reassuring: We were too close to a coup

This is based on a comment PD made earlier this morning. It makes an important point. He wrote (edited for added context):

Pat Cipollone, invoked privilege every time the subject was conversation with Trump (or even Meadows) during those fateful hours. There’s no privilege. He was WH Counsel, not Trump’s personal attorney. As Wikipedia states: 

Although the White House counsel offers legal advice to the president and vice president, the counsel does so in the president’s and vice president’s official capacity, and does not serve as the president’s personal attorney. Therefore, controversy has emerged over the scope of the attorney–client privilege between the counsel and the president and vice president, namely with John Dean of Watergate notoriety. It is clear, however, that the privilege does not apply in strictly personal matters. It also does not apply to legislative proceedings by the U.S. Congress against the president due to allegations of misconduct while in office, such as formal censures or impeachment proceedings. In those situations the president relies on a personal attorney if he desires confidential legal advice.   

 

He’s a crucial witness and knows it and hides behind privilege. He also is the guy who first came to public attention when he vigorously defended Trump in his first impeachment. His sympathies are pretty clear; he’s no “John Dean,” as some in the press had hoped. The 1/6 Committee could have contested his claims to privilege, which would get hung up in court probably beyond the ’24 election, or take as much corroborating info as possible and let him look responsible. But we now have just enough to get the DoJ to do the rest in terms of Trump’s culpability. Will he? To be a democracy or not to be a democracy-- that is the question. (emphasis added)

In other words, Cipollone had no legal basis to invoke privilege. There was no privilege to invoke. He openly spit on the 1/6 Committee and what it was trying to do. By doing so, he intentionally and knowingly deceived and betrayed democracy, truth and the American people. He did that in the name of loyalty to T**** above loyalty to all else. 

PD also cited this Tweet by a well-known legal scholar, Lawrence Tribe.

Cipollone should be compelled to testify in the DC grand jury about what Trump told him. No executive privilege or attorney/client privilege would apply and if he tries to take the 5th he should be immunized. That would test Garland’s commitment to democracy and the rule of law.

— Laurence Tribe (@tribelaw) July 22, 2022

To get at the truth of what T**** was saying to people, Cipollone would probably need to be immunized against prosecution for his own crimes. He is a defender and enabler of T**** and his coup attempt, so expecting him to talk voluntarily is unreasonable. He would need to be forced to talk or put in jail for contempt if he refused.

The T**** White House had other treasonous criminals working in defense of T****’s attempted coup. They all knew exactly what they were working for, destruction of democracy and installation of a tyrant-kleptocrat for life. 

Just as bad, the morally rotted, fascist Republican Party supported it then and still supports it now. 

From the vexing matters files: The subjective nature of the rule of law

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.” -- Former US Attorney General, Edward Levy,  An Introduction to Legal Reasoning, 1949

“The lives of the richest people in the world are so different from those of the rest of us, it's almost literally unimaginable. National borders are nothing to them. They might as well not exist. The laws are nothing to them. They might as well not exist.” -- Sociologist Brooke Harrington commenting on how many extremely wealthy people treat the rule of law, NPR interview, 2019

“Well, when the president does it that means that it is not illegal.” -- Richard Nixon 

NPR aired an interview yesterday (that I cannot find today) with a district attorney (DA) in Texas. The DA publicly stated he will not enforce Texas anti-abortion laws in his district. He claims that as a DA, he has discretion to decide what cases and laws to prosecute. NPR then spoke with a legal expert in Texas who concurred that a DA does have the discretion to decide what cases to prosecute and what to drop. So at least in Texas, the only obligation a DA has once police or other law enforcement presents evidence of a crime is to review the evidence and then decide whether to prosecute or not. 

The expert pointed out that it is not uncommon for DAs nationwide to not prosecute selected crimes. Sometimes a crime is not prosecuted because much or most of the community opposes the law. Sometimes it takes too much time and resource to prosecute a hard to prosecute or complex crime. That’s especially true for complex financial crimes and some (most?) white collar crimes where plausible deniability makes getting a criminal conviction impossible or almost impossible. 

The Texas DA said his concern was justice. In his opinion anti-abortion laws are an injustice. He risks his job to take that stand. Although I agree that anti-abortion laws are an injustice, what about the rule of law? 

The United States Attorney General (AG) also has discretion to enforce a law and to prosecute a crime. T**** publicly said that he admired an AG who protected the president from the law. He argued that AG Eric Holder protected Obama from prosecutions, which he saw as a good thing. At this point, AG Merrick Garland has chosen to not prosecute T**** for multiple instances of obstruction of justice, each instance being a separate felony (discussed here in 2019). The choice is up to Garland. Maybe Biden could order Garland to prosecute T****, but at this point that seems highly unlikely.

Both democracy and tyranny can share traits. Governments of both can be bigoted, corrupt and/or incompetent. Two major things distinguish them. One is reasonable compromise. Democrats have to compromise, but tyrants don’t. The other is the rule of law. In democracy, the law is above everyone. So at least in theory, even the elites and leaders are subject to the law. In an authoritarian state, the dictator or plutocrats are the law. They say what the laws is and they apply it equally or unequally when it suits them.

Arguably inherent in the law in a democracy compared to the law in an authoritarian state is a meaningfully higher level of objectivity. For dictators, the law tends to be what the dictator has the power to say it is. Nearly absolute power can inject nearly absolute subjectivity into laws if the dictator or plutocrat is so inclined.

Much as one might agree with the sentiment of the Texas DA, he arguably undermines the rule of law, which is arguably too weak already. Is it too subjective to give DAs that much discretion? In essence, broad discretion gives them power to ignore and abuse law in addition to tailoring justice to reasonably deal with unique situations or complexities. Some discretion is always bad. Sometimes it is good. It depends on how it is used. Regardless of good or bad intent, there can be a lot of subjectivity in how discretion is exercised.

It feels as if the law in America has become dangerously subjective. Radical right American authoritarians have come to understand and embrace how much the law can be bent or abused to undermine and subvert democracy. The more one considers this, the more one some will come to understand that subjectivity and discretion can be a powerful tool in the war against democracy and the rule of law.

Qs: Should the DA in Texas not prosecute anti-abortion law violations in his district? Should he prosecute, but try to minimize the penalties? Is at least some discretion necessary for law enforcement and/or judges because, as AG Levy wrote in 1949, “in an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible”?  

Key points the 1/6 Committee hearing brought out yesterday

Various sources are summarizing the hearings from yesterday. Much of this has been made public before, but the 1/6 committee did a splendid job of honestly telling the tale of what the ex-president did and what his intent was during a critical three hour period on 1/6.  

A summary of some of the key points could be helpful for context and memory.

• After all of T****’s lawsuits alleging a fraudulent election failed in the courts, he planned an a coup for 1/6 as another attempt to stay in power by simply usurping the election outcome. 
• Republicans in congress initially condemned T**** and his coup attempt, but later defended him and justified the coup attempt in the second impeachment. That is solid evidence of the Republican Party’s moral collapse. I call it moral rot. Prominent Republicans like Kevin McCarthy went from initial anger to sniveling obsequiousness justified by crackpot justifications that would convince no one except hyper-partisans. 
• T**** knowingly refused to call off the mob of traitors. Although he tried to hide, allowing no photos or other means of tracking his behavior during the critical three hours of violent insurrection, the evidence is rock solid that he knew he could have called it off. T**** intentionally and knowingly refused to call the mob off.
• The evidence presented yesterday made it undeniable that T**** intended to subvert the election. Instead of calling the mob off, he was calling Republican senators and asking them to delay certifying the vote. 
• During the coup attempt, T**** posted a couple of Tweets that he knowingly intended to further inflame the mob of traitors to get them to stop the vote certification. He specifically targeted Mike Pence and the mob responded to his incitement once they became aware of it.  
• The evidence presented yesterday made it undeniable that T**** supported the traitors on 1/6, seeing them as justifiably angry and justifiably attacking the capitol because of his lie that the election was stolen.
• Only after it became clear that his coup attempt was going to fail, the ex-president called it off, praising the traitors as people he loved and “patriots.”  T**** undeniably saw his violent coup attempt as justified and patriotic. Once law enforcement was mobilizing to shut the insurrection down, T**** reluctantly and half-heartedly asked the violent mob to leave.
• Republicans in congress refused to seriously investigate the 1/6 coup attempt by an independent commission. That created situation where there would be no serious congressional or Department of Justice[1] investigation. That would have left the evidence forever buried or dribbling out in a complex story that few average people would ever piece together on their own. Democrats wanted an independent commission, but Republicans rejected the idea. That Republican Party refusal left Nancy Pelosi (D-Calif.) the choice of setting up a bipartisan panel of House members or leaving T**** free to lie about 1/6 without a counter narrative available to the American people.

Sources:

https://thehill.com/homenews/administration/3570067-five-takeaways-from-thursdays-jan-6-hearing/

https://thehill.com/homenews/house/3570056-trump-accused-of-dereliction-of-duty-in-dramatic-jan-6-hearing/

https://apnews.com/article/capitol-siege-panel-hearing-3e3dc618ed8cee37147cf6a792c0c0fa

https://www.washingtonpost.com/opinions/2022/07/21/jan-6-hearing-trump-behavior/

https://www.washingtonpost.com/opinions/2022/07/22/jan-6-hearing-revelations-trump-inaction/

https://www.washingtonpost.com/national-security/2022/07/22/trump-election-is-over/

https://www.cbsnews.com/live-updates/january-6-hearing-trump-actions/

https://www.bbc.com/news/world-us-canada-62263279

Footnote: 

1. The evidence I am aware of so far indicates that the House 1/6 Committee investigation and the evidence it is publicly showing prodded the DoJ into maybe taking a more serious look at what happened than it had previously. Before the 1/6 Committee hearings started, it wasn't obvious to me that the DoJ was going to do anything about it. If there was a major DoJ investigation before the committee made T****’s coup attempt impossible to ignore, I am unaware of it.