The Week Ahead

Sunday, November 6, 2020

It’s going to be hard to look away from the elections long enough to focus on much else, at least early in the week.

Tuesday is the last day to vote in the midterm elections. Some of you will have already cast your ballots. Because of Alabama’s restrictive policies on absentee voting and lack of any early option, I will be up bright and early Tuesday morning to vote.

Of course, the stress of waiting on results and hoping that Election Day and those counts don’t spawn any violence is going to take a toll on all of us. I’d love to hear about what you’re doing to keep yourself sane.

Something I’m trying to do is focus on encouraging young voters (pollsters typically define that as 18-to-29-year-olds) to vote. Strong turnout from them that matches 2020 numbers could be a key to success in close races. So make sure you talk to the young folks around you and encourage them to vote in person on Tuesday if they haven’t already done so.

Here’s what else is on tap in the week ahead:

Trump Misses His Date with Congress

Trump, not really a shocker, missed his Friday deadline for turning over subpoenaed documents to the January 6 committee. There appear to be ongoing negotiations between his lawyers and the committee. The result of these negotiations is, of course, tied up with the results of the midterm elections. If Democrats retain control of the House of Representatives, Trump’s lawyers will have to come up with a strategy for tendering both his documents and his testimony (currently scheduled for 11/14, a date the committee has said it won’t bend on) because the committee will be able to continue its work.

That won’t be the case if Democrats lose control of the House. In that case, the committee will have just weeks to issue its final report before it’s forced to shut down. There won’t be any realistic prospects of enforcing its subpoena. So, we’ll be watching to see how this unfolds as we learn the results of the midterms.

One thing that the committee can do here is leave behind a historical record that the former president, when offered a chance to tell his story, declined to do so. We’re all capable of understanding what inference to draw from a failure like that, just as we are when, as a witness, Trump repeatedly asserted his 5th Amendment right to avoid answering because truthful testimony would incriminate him. If Trump declines to comply with a subpoena from Congress, the permanent record will reflect that he was afraid to testify under oath and tell the truth. Whether and how that might have any impact on a future Trump candidacy is hard to assess, given his base’s steadfast tendency to cling to him no matter what. But it will, at least, create a record for the future.

More Mar-a-Lago

The Mar-a-Lago investigation presents more of a threat to Trump at the moment than the J6C subpoena. First off, Kash Patel reportedly testified before a D.C. grand jury last week. Patel, the former federal prosecutor who became one of Trump’s national security advisors before being sent to the Department of Defense as chief of staff after Trump lost the election, has remained a staunch Trump ally. It was Patel, for instance, who maintained he had seen Trump declassify documents in the waning days of the administration.

By giving Patel immunity, DOJ has essentially defanged him. His only path forward is telling the truth, and DOJ should have plenty of evidence available to confront him with if he strays from it. The truth is now Patel’s only safe zone; anything else subjects him to prosecution for perjury, and his experience as a prosecutor is likely enough to convince him he doesn’t want to go there.

The Washington Post reported that Patel was asked about his “claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago, his part-time residence and private club in Florida.”

This information most likely comes from Patel’s camp, because prosecutors and agents are strictly prohibited from discussing any matters involving ongoing grand jury investigations. It’s important to keep that in mind as the lens through which any information that becomes public is filtered. But the suggestion in the Post’s reporting that Patel is important because of his potential as a defense witness if the former president is indicted makes sense. Patel isn’t necessarily a witness who implicates Trump. DOJ doesn’t need him to do that. They have plenty of evidence that Trump retained classified material and refused to return it, lying about its status when subpoenaed for it. What DOJ needs to do with Patel is neutralize the possibility that he might offer some preposterous defense for Trump, something that might persuade a juror or two to balk at convicting. Locking down Patel’s testimony now, and subjecting him to the penalty of perjury for false testimony, is the type of strategic move that one would expect to see executed among the final steps before indictment.

In the meantime, DOJ seems to be building out a trial team for the case, with the addition of two former prosecutors from the Southern District of New York. I’ll just cut to the chase here and say, these aren’t the kind of folks who interrupt their lives to go to Washington and work on a major investigation, only to decline prosecution. While nothing is certain until all of the evidence is in and the prosecution team can consult with the highest levels at DOJ, it looks like DOJ is closing ranks here.

When can we expect DOJ to reach a decision? While the smart money suggests that if there’s going to be an indictment, it won’t come until after the start of the year, I’d say we’re on indictment watch from this point on. We’ll find out if it’s happened when we see everyone around us picking up their phones at once and gasping as the news alerts go out.

There are also rumors, which no one at DOJ has confirmed or denied, that the appointment of a special counsel for both this investigation and January 6 is under consideration. This comes on the heels of reports that Trump is chomping at the bit to announce his 2024 candidacy once the midterm elections are in the rearview mirror. One can only hope Elon Musk doesn’t let him back on Twitter just in time to do it there.

Here is the provision that governs those appointments:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Trump is going to cry foul no matter what the process is if he’s indicted. He’ll try to incite his base with the tired old “witch hunt” playbook. He’ll claim any prosecution is political because he’s a candidate for the presidency and DOJ is accountable to the current occupant of that office. In essence, he’ll argue that he, alone, is indictment-proof. And that just can’t be the case.

Joyce Alene @JoyceWhiteVance

In our country, announcing you're a candidate for the presidency is not & can never be a defense strategy in a criminal investigation.

Running for office can’t insulate someone like Trump from accountability if the rule of law is going to continue to mean anything. Attorney General Garland is going to face difficult decisions and enormous amounts of criticism no matter what he does. There are suggestions that a Republican Congress would try to defund DOJ, or at least specific investigations into the former president. It will undoubtedly be messy, especially for institutions that are already fragile. But the regulations suggest that the attorney general’s decision should be grounded in the public interest, and here, the public interest is best served by ensuring that even a former president (and possibly a current candidate) is held accountable when evidence of criminality surfaces, just like anyone else would be.

The Secret Service

Finally, there’s the chance that we will learn more from the January 6 Committee this week. Remember Cassidy Hutchinson’s riveting live testimony? One of the most compelling parts was the story she told about encountering Anthony Ornato on January 6. Ornato, a Secret Service agent who took a leave of absence from the Service to become the White House deputy chief of staff (something that has always seemed wildly inappropriate for a career civil servant to me) told Hutchinson, in front of Secret Service Agent Bobby Engel, who headed Trump’s security detail, the story we’ve all heard about Trump’s response to being told he couldn’t join the mob at the Capitol. According to Hutchinson:

“The President reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said ‘Sir; you need to take your hand off the steering wheel. We’re going back to the West Wing. We’re not going to the Capitol.’ Mr. Trump then used his free hand to lunge towards Bobby Engel.”

After Hutchinson’s testimony, there were suggestions from a source identified as being “close to the Secret Service” that she was wrong and that Engel and the driver would say so under oath. But that never happened, and news of missing Secret Service texts emerged.

Now the J6C has reportedly interviewed both Engel and Anthony Guglielmi, the Secret Service’s top spokesperson. Perhaps we will hear from the committee about that testimony this week. I have to confess to having enormous curiosity about how the Secret Service could have ever let the president go onstage at the Ellipse rally, knowing there were armed people out and about. We’re still due a lot of answers from that direction. This could be the week we begin to get some of them.

We’re in this together,

Joyce