Bracing for Perp Walk III

Jun 17, 2023

As we prepare for Donald Trump’s third perp walk this afternoon, let’s take a moment to check in with Co-conspirator One, shall we? [CONTENT WARNING.]

Noelle Dunphy, who has accused Rudy Giuliani of sexual abuse, harassment and a few other things, has filed transcripts of audio tapes of some of her interactions with her old boss. Lordy.

As it turns out that Borat movie was, in fact, a documentary.

I regret to tell you that it gets worse.

In the transcripts, the former NYC mayor explains: “Jewish men have small cocks because they can’t use them after they get married. Whereas the Italian use them all their lives so they get bigger.”

He also has Deep Thoughts on theology and biblical history.

Giuliani railed against how Jewish people “want to go through that freaking Passover all the time” and how they should “get over the Passover” because it was 3,000 years ago. “OK, the Red Sea parted,” the transcript reads. “Big deal. Not the first time that happened.”

It’s worth repeating that if Mayor Rudy had shuffled off this mortal coil a few decades ago his name would be on schools-parks-airports-highways-courthouses-post offices. Now, it is hard to even say his name without adding: FFS.

This is the man who brought us the immortal episode of the presser at Four Seasons Landscaping — between a crematorium and a sex shop running a sale called “DILDO MADNESS — and the hair-dye meltdown at the RNC. (Delicacy ought to prevent us from mentioning his farting at a Michigan public hearing where he was lying about the election.)

But as diverting as all of this might be, nota bene: this is the man the former president of the United States enlisted as one of his chief advisers/confederates/co-conspirators in his attempt to overturn the 2020 election.

Behold Co-conspirator Number One.

Mr. Giuliani, the crime-fighter who rose from a federal prosecutor’s office to lead New York City at its moment of deepest crisis, is not named in the indictment that was filed Tuesday accusing his former client, Donald J. Trump, of plotting to overturn the 2020 election.

But Co-Conspirator 1, who Mr. Giuliani’s lawyer acknowledged appeared to be his client, figures in each of the three conspiracies it alleges took place — leaving open the possibility that Mr. Giuliani could be charged himself.

The next chapter in his long public life will now be written by the special counsel who filed the indictment, Jack Smith, who can prosecute him, pressure him into cooperating or leave him dangling, potentially to be indicted by a district attorney investigating election interference in Georgia.

The former mayor who made his name as a lawman now faces a reckoning with the law.

Happy Thursday.

Morning Shots is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.

The New Yorker’s Susan Glasser joined me on Wednesday’s podcast to discuss Trump’s Indictment III:

You can listen to the whole thing here.

Share Morning Shots

It will not come as a surprise to learn that the right — including the worthies of anti-anti-Trumpism — have reacted to the latest indictments with a firehose of fatuousness. Here’s Hugh Hewitt (who is inexplicably still published by the Wapo) channeling TrumpWorld’s bizarre legal strategy:

I hope the charges brought by the American Javert are thrown out, but the TDS Dead Ender Coalition should listen carefully to what John Lauro told @BretBaier last night:

The former president will be subpoenaing everyone who had anything to do with the unusual circumstances of the 2020 election in order to prove his genuine suspicion of the process, which I think means everyone from Mark Zuckerberg who provided the "Zuck Bucks" to the PA Supreme Court to the "51 former Intelligence Community members" who signed the "laptop is Russian disinformation letter" to the old execs at Twitter who suppressed the @NYPost story to Hunter and President Biden and on and on and even perhaps to all participants in the Steele Dossier ought to clear their calendars for whenever the trial is scheduled.

Show trials are only choreographed in Stalin's Russia. Lauro made clear this one --if it begins-- is going to explore every corner of the 2020 election with former President Trump empowered to subpoena everyone who can help prove his innocence.

Um, as Politico’s legal reporter Kyle Cheney pointed out: “This is not how any of this works, of course. Trump can vow to subpoena everyone under the sun but, aside from getting credulous headlines, the odds of testimony from these far-flung randos being admissible and relevant to this case are… nil.”

Then there is National Review, which published a fact-challenged editorial calling for the whole case to be thrown out: “This Trump Indictment Shouldn’t Stand.”

Legal analyst Ken White, who writes as Popehat, is calling bullshit: “People Are Lying To You About The Trump Indictment.”

Let’s take the editors of National Review. I’m singling them out from many people lying about the law, because they are prominent, we can expect better, and they deserve it. Fair disclosure: I have written for them.

The editors of the National Review have published an editorial arguing that impeachment was the proper vehicle to address Trump’s attempt to steal the election and that it’s improper and an abuse of the Department of Justice to use the criminal justice system to try to redress it. That’s not a lie; it’s an opinion. I disagree with it, but it’s not “right” or “wrong” factually, it’s a dispute over policy and what the rule of law should mean.

Unfortunately the editors aren’t satisfied with making a policy argument; they stoop to misleading and lying about the law. First, the misleading. They say:

Finally, Smith is charging Trump with a civil-rights violation, on the theory that he sought to counteract the votes of Americans in contested states and based on a post–Civil War statute designed to punish violent intimidation and forcible attacks against blacks attempting to exercise their right to vote. What Trump did, though reprehensible, bears no relation to what the statute covers.

This is a plausible originalist argument about Section 241, which is a Civil War statute and was originally intended to stop the sort of anti-civil-rights violence that the National Review eventually agreed was unlawful. However, I submit that the statement is materially and intentionally misleading because it does not reveal to the National Review’s readers that the United States Department of Justice has prosecuted election fraud as a violation of Section 241 for generations and has been repeatedly upheld by the courts in doing so. The National Review describes the charge as “remarkable.” Without adding that the charge is based on a widely accepted interpretation of Section 241 upheld by the courts, this argument is deceitful.

The National Review also flat-out lies. It says:

Here, it is not even clear that Smith has alleged anything that the law forbids. The indictment relates in detail Trump’s deceptions, but that doesn’t mean they constitute criminal fraud. As the Supreme Court reaffirmed just a few weeks ago, fraud in federal criminal law is a scheme to swindle victims out of money or tangible property. Mendacious rhetoric in seeking to retain political office is damnable — and, again, impeachable — but it’s not criminal fraud, although that is what Smith has charged.

But National Review is lying to you about the Supreme Court and about what’s charged here. The Special Counsel charged Trump with defrauding the United States under Section 371. The Supreme Court and lower courts have repeatedly and specifically ruled that Section 371 doesn’t require a scheme to take money or property. National Review is referring to the latest in a line of cases interpreting a completely different statute, the wire fraud statute, that includes a “money or property” requirement in its text:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice . . . .

Justice Thomas, in the 2023 case to which National Review alludes, expressly relies on that language to find that the wire fraud statute requires a scheme to take money or (as traditionally defined) property. He does not even mention Section 371, which does not include the “money or property” language and which has a long history of Supreme Court and lower court cases holding that the object of the fraud need not be money or property, but can be interfering with government function.

That’s not just misleading; it’s a flat-out lie about the law.

National Review’s Noah Rothman publicly broke from his colleagues’ editorial: “January 6 Was a Crime: A dissent from NR’s editorial.”

[Our] editorial implies that Smith is aware of the flimsiness of the charges he has brought because, in his Tuesday statement, he lingered on the horrible outcomes Trump’s conduct produced rather than the statutes the former president is alleged to have violated. But just as every rational American supposedly should have known Trump’s lies were, in fact, lies, no one should need Jack Smith to take them by the hand and lead them to the conclusion that the riots were a direct consequence of the lies.

Meanwhile, at the Dispatch, a disagreement between ex-Trump DOJ spox Sarah Isgur and former colleague David French.

ICYMI, French wrote in the NYT: “Smith has brought a difficult case. But it’s a necessary case. . . . This is the trial America needs.”

Isgur pushed back:

“At a time when so many Americans are questioning the legitimacy of our institutions and believe that our laws can be wielded by their enemies for political advantage, I can only agree with the first sentence. A trial relying on vague laws to prosecute a presidential candidate who may well have believed the lies that assured him that he wasn’t a loser is the last thing this country needs.”

(French is right. See below.)

Mona Charen in today’s Bulwark:

In our polarized information world, with millions getting only news that is politically palatable, it’s excruciatingly difficult to convey basic facts. But trials, especially trials that will dominate every single news outlet, are probably the one way to penetrate those hermetically sealed bubbles. As inconceivable as it seems to viewers of CNN and readers of the New York Times, millions of Americans do not know a fraction of the offenses Trump committed. And while millions won’t care, a saving few may. Through the trials, some who are currently in ignorance will learn facts that will disturb them. There will be no escaping the cataract of facts that will fill the airwaves in the coming months, and while spinners will work overtime to explain it all away, their task will be more challenging when there is testimony from Republicans and cross examination and sworn oaths. Our justice system is by no means perfect at revealing truth, but it’s far superior to social media or cable TV. If just a few tens of thousands of Americans in key states have their minds opened to new information, it could be enough to avoid an unthinkable outcome in 2024.

So we must strap in and prepare to play our part, mindful of the stakes, and welcoming a new ally in the battle for truth—the courts.

Phil Rotner explains in today’s Bulwark:

And while some of the overt acts alleged against Trump might look less damning if Trump could show he truly believed he won the election, others would not. Even a sincere, deeply held belief that the election had been stolen would not, for instance, give Trump license to participate in a fake-electors scheme. As I wrote over a year ago, none of Trump’s standard defenses can excuse this piece of dirty work. Trump can’t claim he didn’t know about it, and he can’t claim that forging election certificates and then attempting to pawn them off as official documents is just fine as long as you believe you won an election.

Think of it this way. You may be absolutely convinced that a charge on your credit card isn’t yours, but you can’t hack into the bank’s server to remove it. You may know with all your heart that your neighbor took your Rolex, but you can’t break into his house in the middle of the night to retrieve it (just ask O.J. Simpson about that one). You may hold it as an article of near-religious faith that the government is tyrannical, but you can’t blow up the federal building.

Jill Lawrence in this morning’s Bulwark:

As he teases Republican donors about the possibility that he will swoop in to save the day, Youngkin could not have asked for better liftoff conditions: over 200,000 more people employed in the state since he took office 18 months ago, which his team notes marks Virginia’s highest labor-force participation since 2013; record fundraising hauls; a personal-best 57 percent approval rating, which he achieved in a state that gives no special welcome to GOP politicians; and his party’s two leading presidential contenders looking ever less viable.