Yesterday former President Trump and his legal team were in court yesterday, specifically US Court of Appeals for the District of Columbia. It stems from a criminal case linked to his January 6, 2021 attempt to overthrow the government and remain in power. Trump’s team filed a brief arguing that he is immune from prosecution because he was acting in his role as President. There is reason to argue that a sitting President cannot be charged with a crime but Trump wishes us to believe that he can never be prosecuted, unless his crime causes him to be impeached and removed from office by Congress.

I subscribe to an excellent podcast called Prosecuting Donald Trump and yesterday they gave me access to the recording of the hearing. I listened to it so you don’t have to. Here’s what I learned:

Trump’s legal team argues that if a President breaks the law he cannot be prosecuted, even after he leaves office, unless he was impeached by the House of Representatives and removed from office by the Senate. They argued that without this protection Presidents would always have to “look over his shoulder” when making decisions and worry that after they leave office they will be prosecuted. The President needs this protection to govern effectively.

Jack Smith is prosecuting the Trump case and his team responded that this is not sufficient. For example, if a President breaks the law he can then resign and provide no avenue for him to answer to his actions. Additionally they reminded the court that after Trump was impeached for his actions on January 6th several Senators advised against voting to convict. They argued that once Trump left office he would be subject to criminal charges and since he was leaving office on January 20, 2021 there was no point. Now the Trump wants to have it both ways.

It’s no surprise that I disagree with Trump but I just can’t get past the idea that the President can break the law with no fear of consequences. Trump argues that if a President can be prosecuted for actions in office it would open floodgates. One of their examples was President George W. Bush lying to Congress to get their agreement to invade Iraq. There are two problems with this: President Bush honestly believed Saddam Hussein had weapons of mass destruction (because his Vice President and Secretary of Defense told him so). Additionally, it’s not illegal to lie to Congress unless you’re under oath. He never was. President Trump claims he honestly believed the 2020 election was stolen from him but we have tape of him admitting he lost. This just doesn’t work.

The US Court of Appeals will likely render their decision in the next few weeks and it will almost certainly go to the Supreme Court. I can only hope the court rules against Trump.

On the morning of January 6, 2021 I didn’t expect the date to be important. But newly defeated President Trump did. He knew that the Senate would convene that day to accept the electoral votes of the 2020 election and preventing that was his last chance to stay in office. He proclaimed, then and now, that he won the election but it was stolen from him by corruption and voter fraud.

Trump was far from the first president to be defeated in his quest for re-election; that goes all the way back to John Adams. But he was the first who fomented violence to keep his job. On December 19, 2020 he tweeted this: “Big protest in D.C. on January 6th. Be there, will be wild!”

On that morning he held a rally near the White House and told his followers to march to the Capitol to “take back our country.” In fairness he expected to join the crowd but his Secret Service team refused his request and took him back to the White House.

What happened next shouldn’t have surprised anyone. The crowd marched to the Capitol, broke windows, climbed over barriers, assaulted law enforcement and attempted to prevent Congress from certifying the vote. At first even Republicans saw this for the terrorist act it was. But it didn’t take long for that to change.

Even those who were in harm’s way have now claimed this wasn’t an attempt to overthrow the government but a peaceful protest. Trump now refers to those convicted of crimes related to this are hostages. You can read an excellent article: here.

We can’t let Trump and his minions rewrite history. Our future depends on it.

In the last few months we’ve been reading about criminal indictments against former President Trump. It can be hard to keep up (unless you’re a news nerd like me). I thought this might be a good time to see if I can boil it all down and make things sensible to the average person. Let me know how I did. By the way I didn’t categorize this under the 2024 election chronicles because it has almost nothing to do with any of the other candidates.

Background: Donald Trump was elected President in 2016; he lost the popular vote but garnered more electors. This also happened in 2000 when George W. Bush beat Al Gore. Trump ran for re-election in 2020 and lost. He didn’t get enough electoral votes and current President Joe Biden won. Trump declined to acknowledge his defeat, and while he did leave the White House on January 21, 2021 he has claimed all along that the election was stolen from him. In the last few years we’ve witnessed several investigations of illegal activity around this and he’s been criminally charged four times in four different places. Since he is running for President in 2024 it’s gotten a little complicated.

New York On April 4, 2023 in New York Trump plead not guilty to 34 counts of falsifying business records from the 2016 campaign. Of all the charges this is the least worrisome to Trump. During the 2016 campaign an adult film actress whose stage name is “Stormy Daniels” claimed she had an affair with Trump. Since he was married to Melania then and she had just given birth to their son, Trump feared that news of this might hurt his campaign. At Trump’s direction his personal lawyer Michael Cohen paid her $130,000 on the promise that she would not disclose this to anyone. Cohen paid this out of his own pocket and Trump repaid him. But since the purpose of this payment was to avoid bad publicity for his campaign it was seen as an illegal campaign contribution. Trump attempted to portray the $130,000 as legal fees to his attorney but he and Cohen were unable to provide the paperwork to show what legal services Cohen provided to Trump for the $130,000. They falsified business records to hid the payment. Since the funds were drawn off of Trump’s Capital One checking account in New York, he was indicted in New York As I said, this is the least of Trump’s legal woes. These charges were brought by New York District Attorney Alvin Bragg and the trial is set for March 25, 2024.

Florida On July 27, 2023 the Southern District of Florida filed a 40 count indictment against former President Trump and others accusing him of illegally taking documents from the White House that belonged to the National Archives. Some of them were classified and were found in unsecured areas. When a President leaves the White House it’s a chaotic time because the White House staff has only a few hours to clean and prepare the White House for the new President and family. It can be difficult to determine what belongs to the President and what belongs to the National Archives. Because of the volume of paperwork involved it’s not hard to imagine that sometimes classified documents get misplaced. When this happened with President Biden his staff caught the mistake and returned the documents. But when Trump left the White House he directed that several boxes, some containing classified and highly sensitive information, be taken to his resort and residence in Mar-a-Lago. Since Mar-a-Lago is a public resort it’s impossible to know who had access to these materials; there was no attempt made to secure them. After Trump left the White House he was contacted by the National Archives because they believed he took boxes of documents that should have been sent to the Archives. In May and June of 2021 the National Archives made specific requests for documents. Trump claimed he didn’t have anything classified and as President he had the power to declassify anything. Over the next year the National Archives attempted several times to have Trump turn over documents; he lied, he instructed his employees to lie and he directed employees to move boxes from Mar-a-Lago, Florida to his golf course in New Jersey. Finally, on August 8, 2022 the FBI executed a search warrant to Mar-a-Lago and seized 102 classified documents. Trump and others were indicted on June 8, 2023. The trial is set for May 20, 2024.

Washington D.C. On August 1, 2023 Trump was indicted on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. These indictments focus on the events leading to the insurrection to storm the Capitol on January 6, 2021 to reverse the 2020 Presidential election and keep Trump in office. The Presidential election was held on November 3, 2020 and four days later Vice President Biden was commonly acknowledged as the winner. Trump insisted that he won the election and promised to reveal widespread fraud and cheating. Since most elections results are clear we have certain formalities that don’t normally get much attention. Each state counts the votes and declares a winner. The winning candidate then appoints electors and on December 14, 2020 electors met and awarded 303 votes to Biden and 235 to Trump. Those votes were then sent to the US Senate who was tasked to count the votes and certify the election on January 7, 2021. Almost from the beginning Trump and his allies began speaking with officials in several states that Biden won, arguing that there was fraud and the states had the right to choose electors themselves, regardless of the popular vote. When Trump learned that the Senate will meet on January 6th (with Vice President Pence in his role as presider of the Senate) to certify the election he began to pressure Pence to refuse to accept the electors and proclaim Trump the winner. Pence refused. He then directed his supporters to come to the Capitol on January 6th with the intention of preventing the Senate from accepting the electors and certify the election for Biden. The trial is set to begin on March 25, 2024.

Georgia This may be the indictment that Trump should fear the most. This also point to Trump’s attempts to overturn the 2020 election and there is some overlap from the Washington D.C. indictment. But here Trump was indicted with 18 others. On January 2, 2021 Trump made a conference call to Georgia’s Secretary of State Brad Raffensperger. Trump insisted he won Georgia’s popular vote and ordered Raffensperger to “find” 11,780 votes (he lost the state by 11,779 votes). He and his co conspirators targeted Ruby Freeman, an election worker in Fulton County, Georgia. They accused her of election crimes (handling a suitcase of false or stolen ballots); they then harassed and threatened her. Fearing for her life she left her home for a period of time. Additionally, Trump and some of his co conspirators attempted to file “false electors,” that is, electors that would vote for Trump. Their hope was that the US Senate would be given the false set. What makes this indictment different from the others is that this make use of RICO. RICO is an acronym for “Racketeer Influenced and Corrupt Organizations.” Legislation was written to give prosecutors broad ability go after criminal conspiracies. A conspiracy is when two or more people cooperate to commit a crime; as a funny aside, Rudy Giuliani made great use of this when he was a prosecutor in New York. This will allow one or several of Trump’s co conspirators to “flip” or testify against him for a reduced sentence. Nobody has, but his chances of everyone maintaining their silence are remote. That trial is set for March 4, 2024.

Still with me? This turned out to be much harder to write than I expected. I tried to be accurate and concise but I found that those terms are different points on the same continuum. The trial dates look close to each other and Trump is pushing to have them moved after the 2024 election. I see these dates are more as a starting point than fixed points. To the ability I can I’ll keep writing on this.

Over two years since he lost his reelection bid former President Trump continues to beat the drum that the election was stolen from him. Earlier this month he wrote on social media that the “fraud” allows for “the termination of all rules, regulations, and articles, even those found in the Constitution.” This is obviously not true but it got me thinking.

When the Constitution was ratified in 1789 it allowed for future amendments in Article V. There are two ways it can be done: A proposed amendment that is passed by a 2/3 majority of both houses of Congress and then ratified by the state legislators in 3/4 of the states becomes an amendment. This how it’s always been done.

But the authors of the Constitution also recognized that there may be a point where Congress refuses to act and they allowed for another method: Two thirds of the state legislatures can call for a Constitutional convention to consider amendments. This has never been done, but it is allowed.

So here’s the Constitutional question: if there is another Constitutional convention, can they only propose new amendments or can they scrap existing parts of the Constitution? There is a precedent for repealing amendments: the 18th amendment instituted prohibition (of alcohol) and the 20th amendment repealed it. But no part of the Constitution itself has ever been repealed.

Some Constitutional scholars believe that the convention can only deal with the amendments but others disagree. Those who disagree point out that the original Constitutional convention was meant only to amend the previous Articles of Confederation. But once the framers began to meet they understood that the Articles of Confederation needed to be scrapped and they needed to start over. If you’ve never heard of the Articles of Confederation (and most Americans haven’t) you can read about it here. They hold that this can happen again.

Now imagine the parts of the Constitution that you hold most dear: freedom of speech, the right to bear arms, etc. Is that what you really want? I imagine not. I also don’t think that’s what Mr. Trump wants, but he seems to think he can control every process. Fortunately he can’t.

Seriously, Mr. Trump: call me. Teaching you how our nation works won’t be easy but I’m willing to give it a try.