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  • Writer's picturePhilip Drucker

"A Legal Theory" 6-14-2022

“A Coup in Search of a Legal Theory” - Judge David Carter 3/28/2022

Today I’m going to try something a little different. I’m a firm believer in the past being the best indicator of what will happen in the future, unless it doesn’t, and that my friends is called progress, I’m going to play the “what if” game as part of today’s Communique.

Specifically, as related to the events leading up to the January 6th storming of the Capitol Building and how prior compliance by the DOJ with the Trump driven fascist agenda could have altered history to the degree an artificially tanned madman with a twisted half-baked plan could still be in office today, and get this, with a Constitutionally “plausible” legal argument.

So, with an extra day in hand due to the postponement of the June 15 hearing, let’s set the stage regarding the story being told by the January 6th Committee, which BTW is doing an excellent job of informing the public.

On Thursday, June 16th, the hearings will continue with an emphasis on then VP Mike Pence’s role with what at this point could be considered as either a defining moment or two in our quest to save democracy or, smack dab in the middle of the purest of politically motivated drama, Trump is running out of options.

Having given up long ago on the idea of winning the election, Trump has committed to any means necessary to retain power. The fact he knows, or does not know, believes or does not believe, fantasizes, hides his head in the sand, or was the victim of voter fraud (he wasn’t) is no longer all that relevant. It’s “prove” the “Big Lie” (“Lie”) or die time.

Of utmost importance, if the Lie dies, so does the grift and as an existential question, what is a Trump without a grift? A sucker to deceive? A loser to exploit? Or, in our case, an entire half-nation of rubes to hustle? The answer is at best uncertain, but whatever “it is” Daddy Fred Trump would not approve and this, Baby Don cannot allow to happen.

By now, Billy Barr knows it’s time to jump ship or face the reality of jail time for his actions in support of a coup. Jeff Rosen is the acting AG. and Donny is desperately seeking validation for his next move to retain the presidency. He knows he must change the outcome of several states in order to “win”.

He starts in “swing-state” Georgia. So far, as with Barr before him, Rosen refuses to acknowledge in writing or otherwise, that any meaningful voter fraud took place in the state. Trump’s latest rattle is a letter stating the DOJ believes there is enough evidence of ballot tampering that needs to be investigated.

If emotional neonate Don gets his DOJ “approval”, he can then invoke whatever superpowers his “emergency” power has vested in him and at a minimum, he can conduct a federally authorized investigation to prevent fraud and conduct his own recount of the ballots.

Remember, in the mind of a tyrant, it’s not who casts their ballots that counts, it’s who counts the votes, that counts. The outcome becoming, shall we say, less objective and a wee bit more subjective? Stalin thought so.

Meanwhile, the public is made aware of Mini Trump’s numerous attempts to persuade Georgia officials to magically “find” 11,780 votes. They weren’t buying it and now, neither are we.

The net effect is wee bairn Trump can’t rely on the State(s) to intervene on his behalf and supply enough smoking guns and mirrors to provide the pretext of “reasonable doubt” in an amount necessary to stop the vote count and begin with his scam to negate the Red Mirage effect and only tally the in-person voters is gone.

Now, Trump is left with the Eastman Plan to send in and have Pence certify an “alternate” slate of “electors” from six different states all of whom declare Trump is entitled as the actual winner to each state’s electoral college votes, even though everyone knew, Trump included, that Joe Biden had won.

On December 27, 2020 a call took place between Trump, Rosen and his associate deputy attorney general Richard Donahue. In his notes, Donahue may have scribbled one of the most consequential phrases in American history.

'Just say that the election was corrupt + leave the rest to me’ -Trump

With less time and fewer allies left, and Trump back to the Federal level and again pressuring the DOJ to send the voter fraud is rampant but only in the states I lost but need to win, letters. Rosen again, refuses and now is threatening a mass resignation by members of the DOJ in response to his removal.

They all know Jeffrey Clark has made his deal with the devil. In exchange for being named Attorney General, he will send whatever and how many letters Trump wants. The big question is, too late?

Checkmate? Stalemate? Game over? As it turns out, not by a long shot for as it turns out, January 6th is right around the corner and we are heading to DefCon4.

But what if Barr or Rosen or anyone at the DOJ had folded and sent the we found fraud and think you should do something about or we will letter to Georgia? I submit, none of the above would have happened for had Trump been given the chance to intervene, it would have all been unnecessary and for the most part, contrary to the script/ploy/scheme/scam.

Under the guise of protecting a presidential election from State voting “irregularities” that could lead to a conclusion of significant voting fraud, and I’m talking Constitutionally speaking, Trump would have had a wide array of options available to him, none of them good for democracy.

To understand the stretched to its limits and misguided, but at least it’s a theory of the Constitutionality of the John Eastman Alternate Electors Certification Plan, we must begin with its textual source contained in the 12th Amendment. The applicable part being,

“The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President,” -12th Amendment (1804)

It is in old language at a time where presidents did not pick their own vice-presidents. Modernly, the VP is the official, or President of the Senate who counts the certificates and in a ceremonial way, certifies the results as being the true reflection of the will of the people.

Yet legal eagle Eastman is willing to contend, that if the VP does not believe the state certificate is an accurate reflection of the popular vote, he or she, can decertify the results and replace it with a “true” set of electors, all of whom will have astonishing as it sounds cast their votes for Trump. For his part, Mike Pence did not go along with the plan and almost ended hanged by the neck till he die by an angry violent mob for his principles.

But had the DOJ signed off on the supposed we found significant evidence of voting fraud in your state letter, the events leading up to and including the January 6th attack upon the Capitol Building would never have taken place.

The “air” of credibility now placed in the hands of a madman, Trump would have immediately had access to any number of election fraud federal statutes to slow down or stop entirely the orderly transition of power.

Now, having acquired the time to act upon the Eastman Plan, Trump as history tells us, if still in office could invoke his “emergency powers” to access any number of remedies available to him under the Constitution.

By declaring the results of the 2020 “stolen” election as a “crisis” hardly a stretch for Trump, and this is mere speculation, opted to confiscate all of the ballots and machines possibly infected by the ghost of Hugo Chavez, or under the influence of and subject to control by the Germans, Italians, Chinese or for that matter, Hunter Biden’s laptop. And importantly, any machines owned and operated by Dominion.

As a matter of established law, under 10 U.S. Code § 253 - Interference with State and Federal law,

“The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.”

I have little doubt Eastman knew about this little gem and trust me, it never hurts to have a power derived from the 14th Amendment on your side.

My next no-brainer (something Trump probably likes) would be to invoke 18 U.S. Code § 2383 - Rebellion or insurrection

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

What if Trump decided to utilize this law against Joe Biden? Kamala Harris? Hillary Clinton? The list goes on and on for pray tell me, at this point, who exactly was going to stop Trump from arresting, without due process of law, anyone that say, an inebriated Rudy Giuliani asked him to?

We must consider the likelihood than Trump Trump would have been a charter member and frequent flyer of the detain now, explain later club. It worked for Napoleon, why not Trump?

With no help coming from the SCOTUS, directly deploying the Insurrection Act of 1807 et seq. would add another level of additional seriousness, lawlessness, and terror to an already escalating situation.

The original Act is significant as it gives the President the right to move beyond militias and use regular military and the National Guard in response to quell instances of domestic unrest, protest and violence. In other other words, Trump could have put troops on American streets as an exception to the Posse Comitatus Act of 1878.

[I]n all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the prerequisites of the law in that respect.

I think it worth noting the Insurrection Act was originally intended to allow Thomas Jefferson to chase down and arrest the fugitive Aaron Burr who by all accounts was trying to build a separate nation in either Louisiana Territory or Mexico.

Lastly, it is important to be mindful the only crime described in the Constitution is in Article II, Section 3, Clause 1,

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The penalty? Why death, of course. I would not be overly confident the Courts would find America “at war” but treason does have a certain unsettling finality about it. I would say being labeled a traitor for any reason, true, false or in between would not be a good thing. And Trump, as a purveyor of all things bad wouldn’t hesitate to use it if he thought it would inure to his benefit.

Then, it was January 6th and man-child Donny’s one viable option left. Fortunately, Little Lord Trump had the foresight to raise an angry mob of useful idiots. The storming of the Capitol Building including any loss of life, was for vengeful Trump, nothing more than showtime with one last glorious attempt to be strong, to shine under the sunlight, to win. DaDa would have been so proud.

I end on this note. As fragile as democracy might be, it is often the “little” guy or unsung, obscure bureaucrat who end up making all the difference. Those acts of defiance, however small they may seem at the time, may help run out the clock, stall, setback or sometimes even kill a dragon no one thought could be slayed.

For in the final analysis, Trump failed for the simplest of reasons. He ran out of time.

Have fun on Thursday!

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