(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . The New York Times helpfully proves just how far the right has fallen [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-08-08 It’s a sad and dispiriting testament to the complete and total capitulation to Donald Trump by the political right that law professor Jack Goldsmith of the conservative Hoover Institute felt compelled to pen a this sorry screed in the New York Times bemoaning the “terrible” dangers of prosecuting the Orange Menace for his allegedly criminal efforts to erase the votes of millions of Americans. But even worse, it’s emblematic of the extent to which Trump’s behavior has warped and eroded the concepts of “right” and “wrong” for so-called conservatives, transforming these supposedly bedrock ideals into subjective exercises in perception rather than inquiries into objective facts. Goldsmith is not unfamiliar with the law. Described as a former assistant attorney general in the George W. Bush administration and special counsel to the general counsel for the Department of Defense, he holds a law degree from Yale and currently serves as the Learned Hand professor at Harvard. Accordingly, when he makes declarations like this one, we should presume he at least has some inkling of what he’s talking about: Mr. Smith’s indictment outlines a factually compelling but far from legally airtight case against Mr. Trump. The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Mr. Trump loses), it will be a historic disaster. Indeed, the case against Trump does raise novel, even “tricky” issues. That’s because the country’s justice system has never before had to weigh the grotesque and unprecedented actions of a former president possessed with the same sheer, base venality as Donald John Trump. There is (thankfully) no exact historical analogue, no clear roadmap for such a prosecution, because the electoral process usually — with a few exceptions — weeds out such individuals and prevents them from attaining that high office. But the “novelty” is applying existing criminal laws to this person in particular, not the laws themselves. The laws are fairly clear. So perhaps Goldsmith should have begun his earnest expression of concern by citing some examples of how the legal process should be whittled and chiseled by its practitioners in order to accommodate crimes committed by political actors, as opposed to ones committed by the rank, unwashed masses. Sadly, however, none are cited. Instead, we are sternly advised of the political perceptions that could flow from their application to Donald J. Trump in particular. “Political” in Goldsmith’s view clearly means something being done for an improper purpose, and Goldsmith is very concerned that the timing of Trump’s prosecution — in the runup to a rematch between President Biden and Donald Trump — makes it appear “political,” whether that’s the intent or not. He writes: This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year and then rushed to indict him well into G.O.P. primary season. The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Mr. Trump if he is nominated. Goldsmith links to a recent Washington Post article which detailed the rationale for this “delay” in investigating Trump, implying that the purpose for delaying was, in fact, political. However that article very clearly states: A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him, The Post found. If anything, the reasons for the delay, as detailed by the Post, are the exact opposite of what Goldsmith insinuates as “political.” But more importantly, Goldsmith uses the word “political” without (apparently) realizing what he is talking about. Because that word, “political,” does not mean what Goldsmith apparently thinks it means. The very essence of attempting to overturn an election — which is what Trump is being charged with — is inherently “political.” It is an action of a political actor attempting to influence the body politic of this country. Because Trump tried to discharge a lawful election in which Trump was declared the loser and Biden the winner, if Trump’s acts were to be prosecuted for their criminal malfeasance they had to be prosecuted by the incoming Administration. That’s not a “political” result, but the simple application of criminal statutes of limitations. Given the fact that Goldsmith (falsely, actually) labels the Department of Justice as being a creature of the Biden administration, then, it follows that prosecution of any crimes — if they were to be prosecuted at all — must, in most cases occur within five years of Trump leaving office. Even Goldsmith is not disingenuous enough to suggest that a re-elected Trump would permit a continued investigation into his own criminality. Next, Goldsmith assails what he calls “the backdrop of perceived unfairness” of the Justice Department’s actions, including their earlier investigation into Trump’s ties with Russia, as well as their efforts to determine any criminality on the part of Hunter Biden. He contends that these investigations “fanned suspicions” about perceived political bias. But Hunter Biden has been charged (in a matter commensurate with similar prosecutions) and again, the complicity between the 2016 Trump campaign and Russian intelligence is thoroughly documented, even if Goldsmith refuses to acknowledge it. Most importantly, the cause of these “unseemly” perceptions (Goldsmith laughably contends that allegations against Hunter Biden were bolstered by “credible whistleblowers,” for example) are largely and demonstrably fictions dreamed up by right-wing media supportive of Trump. Then Goldsmith unwittingly buries his own argument: These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Mr. Trump. They are the circumstances that for very many will inform whether the prosecution of Mr. Trump is seen as politically biased. But they are exactly “whataboutism” points. And for a law professor at Harvard to cite right-wing perceptions fueled by its own disinformation Wurlitzer as an excuse to ignore the law is simply astonishing. How can Goldsmith possibly justify that position to his law students? Should we ignore criminality because of what Fox News says? Goldsmith then dribbles his concern about potential retaliatory, “tit for tat” investigations of future administrations, without seeming to realize that Republicans have been proceeding with those since attaining their House majority. In fact, they undertook them (fruitlessly) against Hillary Clinton, who never even attained the presidency. There is clearly no reticence on Republicans’ part from conducting what can fairly be described as “witch hunts” for the sole purpose of ginning up their own voting base. Again, all of this comes back to Trump himself, and the uniquely depraved actions he voluntarily undertook — with the help of his many enablers — to overthrow a lawful election. No one forced Trump to instigate a “fake electors” scam, to instigate an insurrection at the U.S. Capitol, or to predicate his entire, losing 2020 campaign and its aftermath on wholly false allegations of voter fraud. If Goldsmith is actually concerned about the effects on our country and the respect of its citizens for the rule of law, then chiding the Biden administration for seeking to uphold it isn’t a smart place to start. And finally, most crucially, is what is left unsaid in Goldsmith’s mighty exercise in concern trolling. What would be the consequences of failing to prosecute Trump and his minions? What if DOJ just shrugged its shoulders at Trump’s blatant criminality and said, “it’s too political,” too “unseemly? Is that something he’s prepared to suggest to his law students? Is that the country that he wants them to aspire to? These right-wingers who purport to stand for the rule of law really need to look in the mirror and ask themselves what they’re defending, when they leap to excuse or disregard the crimes of Donald Trump. 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