Developments: A midweek check-in on the state of the Republic

Jim Comey

Wednesday’s biggest news arguably involved the scoop by MSNBC that the new U.S. Attorney in the Eastern District of Virginia plans to indict former FBI Director Jim Comey for perjury before Congress as early as tomorrow. This, despite reporting that prosecutors in her office have provided her with a detailed memo advising her to decline to present both perjury and obstruction charges in the case.

Reporter Ken Dilanian tweeted:

“The full extent of the charges being prepared against Comey is unclear, but the sources believe that at least one element of the indictment—if it goes forward—will accuse him of lying to Congress during his testimony on September 30, 2020 about whether he authorized a leak of information. The five-year statute of limitations on that charge would lapse on Tuesday.”

We will discuss this further, obviously, if there is an indictment. But DOJ doesn’t just “get” an indictment. They have to convince a grand jury to vote to return one, something this administration has struggled with recently. Federal grand juries have 16 to 23 members, as required by Rule 6 of the Federal Rules of Criminal Procedure. It takes “yes” votes from 12 of those grand jurors to secure an indictment. We will see.

Perjury cases are not easy to indict. They require a specific statement that the government can show is false—not ambiguous, but false. They must prove that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake, or faulty memory. If the defendant believed his statement was true when he made it, even though it was false, then the government fails to prove perjury.

The 2011 prosecution of baseball great Barry Bonds for perjury over the use of steroids is illustrative. He was indicted for both perjury and obstruction. The perjury allegedly occurred during grand jury testimony, where he denied using the drugs. The jury hung on three perjury charges, and they were dismissed. They convicted on one count of obstruction, which the Ninth Circuit Court of Appeals, sitting en banc, threw out on appeal. They wrote, “During a grand jury proceeding, defendant gave a rambling, non-responsive answer to a simple question. Because there is insufficient evidence that Statement C was material … defendant’s conviction must be reversed.”

Materiality means that the statement has to be important to “have probative weight, i.e., [be] reasonably likely to influence the tribunal in making a determination required to be made.” It’s the jury that makes the decision of whether an allegedly criminal response was material. It’s easy to see how the government would have an uphill battle here, on these facts.

Jimmy Kimmel

Comedians are the new defenders of democracy. Whether it’s Volodymyr Zelenskyy, the former comic who is now president of Ukraine, or American Jimmy Kimmel. Tuesday night when Kimmel returned to late night, he explained the essence of democracy in his monologue:

“This show is not important. What is important is that we get to live in a country that allows us to have a show like this.”

Kimmel pointed to the agreement, across the political spectrum, on the importance of the First Amendment, crediting it with his return. “I want to thank the people who don’t support my show and what I believe, but support my right to share those beliefs anyway,” he said. It’s a low bar, but it’s a bar that even Republicans like Ted Cruz and Rand Paul don’t believe democracy can fall below.

Kimmel saw what that meant and suggested that the silver lining to his experience might be that we have finally found one thing we can all agree upon, the importance of the First Amendment. Having done that, he continued to speculate that we might be able to find another, like ending shootings at schools or restoring pediatric cancer research. “Let’s stop letting politicians tell us what they want, and let’s tell them what we want,” Kimmel said.

ICE Shooting

There was an early morning shooting at an ICE detention facility in Dallas on Wednesday.

Vice President JD Vance was one of many who jumped to condemn the attack as a crime against ICE, committed by people on the left. But as the day drew on, there was little information about the shooter, who took his own life, and his motives. The government said the bullets were marked with “anti-ICE” slogans. One undocumented person was killed and two other people were shot, but reports indicate none of the people who were targeted were federal agents. Calling it an “obsessive attack on law enforcement” seems to be premature, at best.

Trump’s Anti-ANTIFA Executive Order

On Tuesday, Trump signed an executive order that designated ANTIFA as a domestic terrorist group. In a post on Truth Social, he wrote, “I am pleased to inform our many U.S.A. Patriots that I am designating ANTIFA, A SICK, DANGEROUS, RADICAL LEFT DISASTER, AS A MAJOR TERRORIST ORGANIZATION. I will also be strongly recommending that those funding ANTIFA be thoroughly investigated in accordance with the highest legal standards and practices.”

Antifa is not an organized group. There are no pledges, dues, or sign-ups. Not even tiki torch marches. So what is Trump trying to do?

Here’s a clue: Earlier this month, Trump said on Fox News that his administration was going to be launching an investigation into liberal billionaire George Soros. Soros’ alleged crime is funding organized protests across the country, which, last time I checked, was First Amendment-protected activity. But Trump seems to have seized on the idea of using this as a mechanism to go after people who fund political opposition to his regime and to the American people who oppose him as well.

Trump claims Antifa protests turn violent, but even if that was accurate, it’s far from proving Soros has any intent to incite it. The executive order purportedly fills in that gap for him, permitting him to continue this week’s trend of going after specific “enemies” on a much larger scale if he decides to. (Also worth noting in this context—Trump’s ability to ignore his own speech on the Ellipse on January 6 and the attack it provoked on the Capitol is expected but still ludicrous.)

This executive order seems designed to let Trump, Bondi, and crew investigate anyone who they accuse of bankrolling or supporting supposed terrorist “organizations.” They have enormous surveillance powers at their disposal and a demonstrated willingness to avoid the strict dictates of law to go after their “enemies.” Given its amorphous form, Antifa can usefully become anyone the administration decides to go after, from high profile folks like Soros to ordinary people who love democracy and are willing to stand for it. Trump has claimed the ability to apply the label “terrorist” to all Democrats. It’s the ultimate in othering.

U.S. law does not permit terrorist designations for domestic groups like it does for foreign ones. That was deliberately done for reasons Trump’s new move lays bare—the risk posed by criminalization of opposition political activity. Any application of the new EO will be met by swift opposition in court, but it’s a dangerous development as part of this week’s continuing trend of Trump trying to pervert the criminal justice system for his own purposes.

We’re in this together,

Joyce

A note about my book: we’ve sold out of all the available signed editions of Giving Up is Unforgivable at my local indie book store in Birmingham, Little Professor. If you still want a signed copy, a limited number of books are available through Premiere Collectibles. I can’t thank you all enough for your enthusiasm and support for the book, which will be out October 21.