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How to ease into prosecution of TFG [1]
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Date: 2022-08-31
Ford pardoned Nixon, and ever since there has been a theory that leaving former presidents alone may be the best thing to do to promote peace, tranquility, and order. On the other hand, of course, more and more revelations argue that someone should actually take the plunge and prosecute Trump.
It occurs to me that the present conflict over Mar-a-Lago documents may offer a change to ease into prosecution. As with chilly water, it can be hard to jump right in, but less of a shock to go bit by bit.
In the DOJ’s latest filing, they quote and attach a declaration by one of Trump’s attorneys, presumably Christina Bobb, stating that all of the documents responsive to the subpoena have been produced. The key words in the document are the statement that “I am authorized to certify on behalf of the office of Donald J. Trump ...” that everything has been produced.
This is a very carefully worded document that reflects Trump’s usual practice in avoiding getting caught personally in a lie. In fact, it is so carefully worded that one wonders if another attorney wrote it and convinced Bobb to sign it.
Clearly, the FBI search turned up so many responsive documents that there can be little question the certification is false. The question then is who can be charged with perjury for the false certification.
Out of the gate, it is important to note that this is not a question that involves attorney-client privilege. An attorney cannot reveal confidences, which are in fact privileged (with certain exceptions, such as the “crime-fraud” exception. On the other hand, if a client directs an attorney to say something, that is a communication that is not intended to be kept confidential, but rather to be affirmatively disclosed. Because the certification by Bobb says she has been “authorized to certify” it comes possible to look into the communication giving rise to the certification.
Where Trump’s team has kept this slippery is by avoiding pointing to Trump directly, and instead referencing the “office” of Trump. But that would only be a short detour to get around.
The first step would be to seek a statement from Bobb. She has a choice: either take the fifth, or point the finger at Trump or someone in Trump’s office. If she won’t point the finger, she can be prosecuted for perjury. Because of her duty as an officer of the court, she has an independent duty to ensure her representations are accurate, so she would have a hard time avoiding the charge. Since it involves top secret documents, it also opens her to prosecution for obstruction and related charges.
This is easing into prosecution. If indicted, Bobb then has an opportunity to get out of jail free by pointing the finger. If Trump told her the search was made and came up empty, she would have to identify him directly; otherwise, she identifies the people who made the authorized representations to her and claimed to have searched for the documents. They can then be indicted an prosecuted.
The thing is, this is the pattern that the DOJ follows all the time, typically starting with the little guys and working up to the top. While it might be a shocking move to immediately seek to prosecute Trump himself, they could start with those lower down and get used to the idea. By the time everyone else flips, moving on to the guy at the top would seem natural and inevitable.
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