The Thugs for Trump Club

David Brooks writes,

Cohen has left the Thugs for Trump club and passed that baton to certain House Republicans. I would have loved to have been in the strategy session when the House Republicans decided to be incurious about Trump’s sins and crimes but to rip the skin off Cohen.

Normal people have moral sentiments. Normal people are repulsed when the president of their own nation lies, cheats, practices bigotry, allegedly pays off porn star mistresses.

Were Republican House members enthusiastic or morose as they decided to turn off their own moral circuits, when they decided to be monumentally unconcerned by the fact that their leader may be a moral cretin?

Do they think that having anesthetized their moral sense in this case they will simply turn it on again down the road? Having turned off their soul at work, do they think they will be able to turn it on again when they go home to the spouse and kids?

This is how moral corrosion happens. Supporting Trump requires daily acts of moral distancing, a process that means that after a few months you are tolerant of any corruption. You are morally numb to everything. You end up where Representative Jim Jordan blandly ended up Wednesday, in referring to the hush-money scheme: “I think it’s news we knew about.”

I’ve heard the rationalizations. This is gang warfare. We have to do everything we can to defend our team. The other team leaves us no choice. Those are the sorts of things people say to give themselves permission to yield to their venal ambitions. Those are the sorts of things rookies and amateurs say.

Goblet or Heads?—or, You Can’t Beat Something with Nothing

goblet heads

Many have remarked on how the Republican members of the House Oversight Committee beclowned themselves yesterday.(I am, as always, indebted to a good friend for sending along this highly bemused British take on the clown show.)

Here, I only want to make two points.

First, Cohen was superbly prepared and ready. Obviously, someone—I assume it was Lanny Davis—spent many hours role playing with Cohen, anticipating each and every thing that would be thrown at him, and then practicing over and over again how to respond. Good for Cohen, and good for his lawyer—whoever was or was not paying the lawyer.

Secondly—without taking anything away from the Republican committee members’ own foolishness and bad faith—the primary fault for their execrable performance does not lie with them. Here is why.

Think of a litigable case as a situation where the facts can be viewed in two different ways:

  • Do the facts show us a conspiracy, or do they just show a lot of separate actors?
  • Does this picture show a goblet, or do you see two heads and a white space between them?

In short, a litigable case—as distinguished from a hopeless case—is a case where there are two different explanations for a set of facts, and each explanation is at least semi-plausible.

Even if the House Republicans were not a bunch of incompetent buffoons, they were just not in a position to construct a semi-plausible defense for Donald J. Trump. Ignorant of the facts, and ignorant of what explanation Trump would eventually embrace, they could not, for example, offer an alternative explanation for the $35,000 check he signed. Cohen said it was to reimburse a hush money payment. What was their answer? That the check was actually for some other service rendered? That Cohen had manufactured a bogus document? That Trump did reimburse the hush money payment, but so what?

It was up to Trump’s defense counsel to develop such a case, and it was up to the Republican spokesbots to defend the case. But even the most faithful spokesbot cannot effectively defend a non-existent case.

So, what do we have? Massive malpractice on the part of Trump’s legal team?

Well, yes. But, more importantly, we have a legal team that cannot construct a semi-plausible legal defense because their client won’t let them. And he won’t let them because he still believes he can bullshit and lie his way out of any predicament. That is Trump’s central character flaw, and, as the Wall Street Journal Editorial Board instructs us this morning, character is indeed destiny:

The day was above all a reminder that Americans elected a President in 2016 who had spent decades in the sleazier corners of New York business and tabloid life. He surrounded himself with political rogues like Mr. Stone, legal hustlers like Mr. Cohen, and even brought in a Beltway bandit from central casting, Paul Manafort, as his campaign chairman for a time.

Republicans knew all this when they nominated Mr. Trump, and now he and the GOP will pay a political price as Democrats marinate in that blue past in hearing after hearing. Character does matter, especially in Presidents.

Is There a Lawyer in the House?

I agree with someone named Ken White (“attorney and former federal prosecutor“). After criticizing Democrats’ performance during the Cohen hearings, White continues,

House Republicans needed a trial lawyer—or even a moderately bright junior-high mock-trial participant—to tell them how to do anything.  Cross-examination is hard.  It’s not just barking at the witness.  It takes meticulous planning and patience. Republicans could have marshaled Cohen’s many sins of the past to undermine his statements today. Instead they returned repeatedly to lies and misdeeds he’d already admitted, wallowed in silly trivialities like the “Women for Cohen” Twitter account, and yelled. The effect was to make an unsympathetic man modestly more sympathetic. Republicans committed the classic cross-examination blunder: They gave the witness the opportunity to further explain his harmful direct testimony. They provided Cohen with one slow pitch up the middle after another, letting him repeat the cooperating witness’s go-to explanation like a mantra: I did these bad things so often and so long because that’s what it took to work for your guy. I have seldom seen a cross-examination go worse.

Today Republicans had the opportunity to learn … that theatrical committee hearing tactics are ineffective against a witness trained to withstand cross-examination. Will the president of the United States ever learn that a federal criminal investigation is not a reality show?

Character is Destiny

character

There are many things that might be said about the moment we are in. One is that we are witnessing a compelling morality play.

Michael Cohen Finds His Inner Moral Compass

I just watched the first part of Morning Joe, where Donny Deutch and Emily Jane Fox—both claiming much personal knowledge of Michael Cohen—assert that Cohen, Trump’s consigliere for many years, has truly repented for his sins and decided to join the side of the angels.

I, myself, don’t know whether that is true. But I know that repentance does happen, on rare occasions. And the conclusion that Cohen has repented is consistent with the currently available evidence.

Mark Whitaker Finds His Inner Fear of God

Whatever power he might theoretically have to slow down Mueller, as of this point, Whitaker has so far elected not to use that power for Trump’s ends. I don’t know what he will do in the future, and I don’t know on what bases he will make his decisions going forward. But it’s reasonable to assume that Mueller has told Whitaker some of what Mueller knows about Trump’s legal vulnerability. And that Whitaker, having befouled his pants, has decided not to go down with the ship.

Newly Minted Federalist Society Justices Look for their Inner Madison

Trump, being Trump, clearly thinks that all those Federalist Society judges he appointed will have his back, no matter what the facts are, and no matter what the law is. There is a metaphysical possibility that Trump is right.

But it’s more likely that Trump has made what is, from his perspective, a catastrophic error.

Whatever their faults—and they are many—Federalist Society folks like Bret Kavanaugh are not hacks.

The object of their affection is not Donald Trump, it is James Madison. James Madison, who warned of demagogues and based the Constitution on a system of checks and balances.

And don’t forget this. Trump can fire Whitaker whenever he likes. Trump cannot fire the federal judges whom he has appointed for life.

Republican Professional Pols Keep Cultivating their Inner Bobbleheads

There will come a time when they jump off the sinking ship. But they will be the last off. That will be after most of the lifeboats have been taken.

Donald Trump Continues to Embrace His Inner Clueless Idiot

Some great politicians are saints, some are devils, and some are in between. But they all have this in common: just as the conductor of the New York Philharmonic has the mental capacity to listen to the violins and the oboes and the cellos all at once, so also the great politician has an acute awareness of how the various parts of her constituency think, what motivates them, and what keeps them loyal.And, by the way, the great politician, whatever her moral underpinnings, fully understands the practical downside of bald faced lying and bad faith negotiation. The good politician makes the deals she needs to make, and then keeps her word.

Want an example of a great politician? Nancy Pelosi.

Trump, the black swan who got himself elected even though he is a clueless idiot, never foresaw that his consigliere might strive for sainthood, that Mark Whitaker might be shitless with fear, that “his” judges might not feel the need to overturn the rule of law in thanks for their appointment, or that the lickspittle professional politicians who once embraced him might be compelled to abandon ship.

Character is destiny. And so our destiny as a nation is being determined by the widely varying characters of the characters on the stage.

I am sorry to say that it is also a tale told by an idiot.

Stormy’s Day

storm over toledo

In an earlier post I tried to unpack the issues surrounding Michael Cohen’s assertion of his Fifth Amendment rights against self-incrimination.

This morning’s news is that Judge Agrees to Delay Stormy Daniels’ Lawsuit Against Michael Cohen. I’m not surprised. Nor am I surprised that Stormy’s lawyer immediately tweeted his plan to appeal to the Ninth Circuit Court of Appeals. And, however, it comes out, I won’t be surprised—partly because I have sort of lost the capacity to be surprised.

Here’s the thing. If Cohen’s criminal problems can be resolved in three months, then there is probably little harm and little injustice in making Stormy wait for her day in court. And, I think, the world can probably wait to learn exactly which form of intercourse she and Trump experienced during their one-night stand. I certainly know I can wait.

But Cohen’s criminal problems probably will not be resolved in three months. And Stormy should not have to wait indefinitely to get her day in court.

Let’s say you had an El Greco on your living room wall and I stole it. You bring a civil lawsuit demanding the return of your painting. I say, “Well, it would be unfair to make me defend the case because it would come out that I committed a crime.”

Does that mean that I just get to keep the El Greco?

I don’t think so.

When I Take the Fifth, I Feel Guilty

fifth

Now that we have all had a good chuckle over Michael Cohen and The Donald, we may ask: What are the actual rules on taking the Fifth?

Good explanation here. I’ll summarize the summary, and add some points.

First, although the words of the Fifth Amendment indicate only that it applies in criminal cases, binding case law extends the rule to testimony in civil cases as well.

Thus, where a witness in a civil case has a good faith belief that truthful testimony in a civil case would tend to prove criminal liability, she may refuse to testify.

Second, in a civil case, unlike a criminal case, the jury is permitted to draw an adverse inference where a party relies on the Fifth Amendment in refusing to respond to evidence offered against him or her.

I have some experience in these matters, and know that attorneys advising parties and witnesses in civil cases commonly urge expansive assertions of Fifth Amendment rights. The point is that if it’s a close call whether to assert the immunity or not, and if the witness goes ahead and testifies anyway, it may later be argued that the witness has waived her Fifth Amendment rights.

That means, of course, that when you assert your Fifth Amendment rights in a civil case, common sense implies guilt, and the jury is permitted to apply that common sense and thus to infer liability. So, as far as the civil suit is concerned, if you take the Fifth, you are likely to be screwed, blued, and tattooed. But being screwed civilly, lawyers often reason, is better than having your client go to the hoosegow.

Finally, judges in civil cases have broad powers over the scheduling of cases. I think that what Cohen is saying here is that the California lawsuit over the hush money agreement should be postponed until Cohen straightens out whatever minor embarrassment results from the FBI raid on his home, his office, and his hotel room.

Or until hell freezes over, whichever comes first.

Doesn’t sound too persuasive to me. For one thing, Stormy has her own rights, to her day in court. But we will see what we will see.