“Just Do It”: Democrats Continue to Struggle to Find a Crime to fit the Offense

Below is my column in The Hill on claims of Democratic members that they have established the case for a criminal conspiracy by former President Donald Trump. The search of the home of former justice official Jeffrey Clark shows a serious escalation of the investigation by the Justice Department. Probable cause of a federal crime had to be alleged as part of the Clark warrant. Yesterday’s hearing exposed Clark’s efforts to challenge the election, including a letter that was wildly inappropriate that he drafted for the top Justice officials to sign. His effort was very disturbing and was rightfully rejected by these officials. However, the claims of an established crime by Trump remain rather fluid and undefined. Making such a case is far more challenging than making the claim on national television. While castigating Trump counsel John Eastman for telling legislators to “just do it,” the same message seems to be coming from members and legal experts on some cable programs.

Here is the column:

“SECVNDINVS CACOR.” When those words were found recently on an ancient stone in Northumberland, England, there was great excitement about what might be revealed about Roman life in the 3rd Century. As it turned out, the painstakingly chiseled words (which were accompanied by the image of a giant phallus) simply said that a guy named Secundinus was … well … human fecal matter.

The stone was an impressive effort just to establish for all posterity that Secundinus was a jerk.

The House Select Committee investigating the Jan. 6 riot is an equally impressive effort to painstakingly debunk election fraud claims and to show how former President Donald Trump refused to accept his electoral defeat. If the purpose were to proclaim “TRUMPUS CACOR,” it would likely get little argument, given the testimony about elected officials and election workers hiding out in their homes after being called out by name by the then-president.

The hearings have created a lasting, damning record leading up to Jan. 6. Yet, some members of the select committee have claimed they have established clear evidence of criminal acts by Trump. It has to be more than Rep. Liz Cheney’s (R-Wyo.) insistence that the evidence would show Trump was not “an honorable man” on Jan. 6 — an assertion that even some Trump supporters might endorse.

That claim is important to avoid confirmation of what was widely reported before the hearings. According to The New York Times, the hearings were framed with the intent to use the select committee largely to “recast the midterm message” and “give [Democrats] a platform for making a broader case about why they deserve to stay in power.” In other words, chiseling out “Trumpus Cacor” before the November election.

The fact is that this evidence is important for Americans to hear and see. Yet, the claims of established crimes this week seemed to run from the visceral to the recreational.

On CNN’s “Erin Burnett OutFront,” Harvard law professor Laurence Tribe declared that Trump can now be charged with the attempted murder of former Vice President Mike Pence “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” In addition to declaring that he is certain Attorney General Merrick Garland will now charge Trump, Tribe said: “There are other crimes that have been proven. Those are plenty to start with.”

Obviously, it is nonsensical to claim that Trump could be charged with attempted murder. However, the evidence presented does undermine Trump’s claim that he truly believed that the election was stolen when he pressured state and federal officials to block certification of the election.

Hearing an account of Trump lawyer John Eastman tell the Arizona House Speaker Rusty Bowers to “just do it” in scrapping the state’s slate of electors was cringeworthy. However, many seem to be making the same demand of Attorney General Garland about bringing criminal charges. As shown below, “just do it” is far better in selling running shoes than winning legal cases.

Crimes have elements, and the committee cannot seem to agree on even the crime, let alone the elemental evidence. Indeed, reports indicate that the committee is divided on even making a criminal referral to the Justice Department.

Here are the three most commonly cited crimes this week and their respective challenges for prosecutors:

Conspiracy to obstruct Congress

The committee has established that Trump was told by his attorney general, White House counsel, and a host of Justice Department and White House lawyers that there was no good-faith legal basis to challenge the election’s certification or a factual basis to support the alleged widespread electoral fraud.

However, to prove this case, the Justice Department would need to show an intent by Trump to obstruct an official proceeding of Congress. That cannot be based simply on the fact that he and his supporters in Congress planned to challenge the certification of the vote. Challenges to certification have been made by Democrats, including Select Committee Chairman Bennie Thompson (D-Miss.), who voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016.

An obstruction charge would have to show that Trump was planning for violence or actively supported the violence as it unfolded. However, it now appears that National Guard personnel were offered by the Trump Defense Department — but declined — four days before the riot. Trump’s delay in calling for supporters to go home was denounced by many that day; some of us objected to Trump’s speech as he was giving it and later criticized his recklessness. Making a case for condemnation is easier than making a case for criminalization of speech.

Conspiracy to defraud

Conspiracy to defraud the government is equally challenging. It would require the government to prove that “at least two people entered into an agreement to obstruct a lawful function of the government, by deceitful or dishonest means.” However, this ignores the fact that, as the committee has repeatedly stressed, there were two teams of Trump lawyers: the “Team Normal” and “Team Crazy.”

Trump may have been delusional or dishonest in siding with one team over the other. The committee has portrayed “Team Crazy” as a clown parade — but a clown parade does not make a criminal conspiracy. For a strong federal case, the charge would have to be based on proof that Trump believed these legal and factual claims were meritless. Not probably meritless but entirely, knowingly meritless. (A Georgia grand jury is looking into the separate possibility of state election fraud violations.)

Trump has long used litigation as a business and political cudgel, often advancing weak legal claims. He has been criticized for treating the law as endlessly malleable. The Democrats themselves have supplied Trump with this best defense. They have often portrayed him as a megalomaniac who could not accept that he lost the election. They offered pseudo-scientific accounts of the “shared psychosis” of Trump and his supporters in refusing to admit defeat. To bring a charge over such a challenge could criminalize future challenges when one party claims that the other lacked a good-faith basis.

Seditious conspiracy

After the riot, there were widespread calls for criminal charges over insurrection or incitement. Indeed, to the thrill of many in the media, District of Columbia Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks (R-Ala.) for incitement. Then nothing happened. The reason was not any misguided affection for Trump; the problem was that Racine could not make the case.

The case has still not been made.

After promising new evidence of a criminal conspiracy with groups like the Proud Boys, the committee showed new tapes that simply amplified rather than added to what was already known. Indeed, in its opening hearing, the committee tellingly showed the same tape from a presidential debate when Trump told the Proud Boys to “stand back and stand by.” That much criticized statement does not make for a conspiracy carried out on national television. The committee has yet to show a direct link between these groups and Trump in carrying out a plan of insurrection.

The select committee may still have the smoking-gun evidence of a criminal conspiracy. However, if the committee hopes to do more than declare Trump a modern-day Secundinus, it still has to prove that he is a criminal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

227 thoughts on ““Just Do It”: Democrats Continue to Struggle to Find a Crime to fit the Offense”

  1. I just watched The Big Guy sign his gun control bill. Nurse Jill was right by his side. She gave him a kiss. Kind of made me think of the Clintons. The press wanted to ask him questions, but he had a helicopter waiting for him. I guess the beach awaits.

  2. Tonight on The Cover-Up

    But first, Let’s begin with this Article:

    Durham Played You For A Fool!
    John Durham and Bill Barr finally ran out of the clock on Spygate. Why are you surprised?
    Emerald Robinson – June 21st 2022


    We now return to our regularly scheduled programming:

    Special Hearing Programming: The Democrats’ An Inconvenient Truth
    [The Cover-Up becomes Continuous & Fiat]

    Just as “incessantly” (i.e.: beyond non-stopping mindless rhetorical), that the Democrats had berated Candidate Trump, then President Trump, and now Post-Presidency Trump… ya-da, ya-da, ya-da! The Democrats are continuously hounding the People with; lies, conjecture, & innuendo too create a ‘distraction’ from the Truth of their own Pre-Election Malice, On-going Election Malice, and Post-Election Malice. [Brain Washing]

    The “insurrection against the country” | What was it that brought these Individuals to the conclusion that there was something wrong with the Election Process (ret.?). The post election speech (tweets & speech rants) by President Trump (?) or the civil & criminal malice of the Democrats (*Hillary, Obama, the FBI & CIA, their Think-Tanks and Operatives… Prof. Tribe, etc. …) (?), by their continuous haranguing of Their own Tongues, loudly amplified by the Military & Commercial Media branches.

    They would like you to believe that it was the Former (Pres. Trump) and his rhetorical (Free Speech) which was the culprit.
    It was the Democrats* that got those People killed on that fateful day of January 6th. They incited the Mob, this is Their doing.
    That Blood is on Their hands, but they would want you to believe that it wasn’t Them at all, but a lone Man, a single actor, President Trump, brought the Years of deceitful lies of the Democratic Party to a head with an “insurrection against the country” at the United States Capitol. [BS]

    Its the Totality of what They have done. They have let their Banking & Wall Street Moguls ransack the economy, They fostered the Ukrainian War covertly, They open the starting gate to Inflation (-The Squad- with cry’s to raise the minimum wage), They slandered a Sitting President in to retirement (yes they won the election, but only by reducing the integrity of the American People’s willingness too stand resolute to the endless and mindless rhetorical). Biden won the election because the People have had enough of the Democrats ranker (They wore the People down and into submission to Vote for the Dem. Party).

    The Deep State wanted Their ‘control restored’, of which they had never lost. So Langley (CIA) employed Their craft at the behest of the Former Sec. of State H.R.C. and engaged Allied Agents (Assets like Christopher Steele – His dossier & Alpha Bank claims et.al. the use of Foreign Operatives) to play upon the American People, doing what the CIA does best in Other Countries, which is overturn an election for Regime Change.
    A complete ‘Smear Campaign’ of Candidate and President Trump was extremely broad and well-organized.
    [Thomas Leo Clancy Jr. (Tom Clancy – Spy Novel Author) could not have written a better scenario]

    Yes – That’s what They did, They used the Intelligence Community against Our People, by turning the Election Process into a Covert-Ops, Too ‘get back’ what They presumed was a loss of Control. Whom else but the CIA knows how to do this better? They are in the business of Spys and Covert Ops.
    The reality was its just Their own paranoia. (The Spooks got Spooked by Themselves & H.R.C./Obama, Dems… )

    This tid-bit, should it be fully realized by the People, would be to much for the D-State. With Their cover blown, Head of D-State would Roll.
    Hence a Cover-Up at full throttle is necessary and continuous to keep the American Public in its place
    (i.e.: This cannot stand – No more Trump, We are in Control… ).

    Trump worked to make relations agreeable with: Russia, North Korea, China, the Middle East. That effort, even if it were to have been successful, would have not changed the ‘Control’ in: Langley, the Pentagon, Crystal City, Foggy Bottom, etc. … in the Deep Government. That was too much for the D-State and Dems.
    !WHATS THIS! a President actually forming Foreign Policy. NO No no – This cannot be, We are in Charge, not the President. Hence Biden, lets put a Old-Fool in place, that we can control. And keep him in check with holding him accountable for his Son’s infidelities (That’s putting it mildly). Ditto for Kamala.

    Continued Below

    1. Cont.

      These (You) Idiots would still be In-Charge, but No – The People must suffer this for the sake of Your personal Gravy-Train.
      Doesn’t matter if You -Look into the Mirror- you will still be getting your FERs Pension.
      Screw’em if They can’t take a Joke (The American People) .. Isn’t that your Motto.

      They are truly Sick (ill), there is something wrong with Them, like the Rabid Animals that They are.
      They are not simply espousing a freely expressed view. They are systemically malicious in Their premeditated effort(s).
      And They want to bury any and all acknowledgement of Their perversity and fractiousness of the Constitutional esprit de corps.

      The Republic (America) is in very grave danger right now. The Federal Reserve Banking System, Wall Street Bankers, Brokers (All Kinds*), Insurance Businesses, 1%’ers have done it! … The Ones whom embraced this EVIL [Democrats -(Not all Democrats! as this is not to condemn a Whole Group)- the Deep State et.al.].

      Like the demise of Detroit, “Will The Last One Out Of Detroit Please Turn Out The Lights”.
      SO will go the demise of America, “Will The Last One Out Of America Please Turn Out The Lights”,
      Except there is… ; No Idea, No Where, No Place to go. WE’re all ‘Sitting Ducks’.
      Way-to-Go They have killed US.

      WE the People need a new system, because as it is, You can’t save America from itself. This … THIS isn’t working anymore for any of US, even those whom think they have it all. It’s a “United” thing that either works or not.

      So go ahead America, Tune-In! Take the Blue Pill and the Red Pill too, drink the Kool-Aid.
      After all Life is all about living it to the fullest and the Journey to the End.

      * Brokers of All Kinds: Real Estate, Automobile, Mortgage, Stocks & Bonds, Speculators, Political-Power-Brokers, … i.e.: Brokers whom take a Percentage(%x) with No-Skin-in-the-Game. THEY – Have run the Republic into the ground, Absolutely Killed the Goose that Laid the Golden Eggs, Buried-It (R.I.P. America).


      Here, it seems, the Blog Stooge is drunk. Hopefully he’ll sleep-in late today and real discussions might develop in his absence.

      1. Do you have an argument ?

        Is your idea of how to advance your cause to call people drunks or stooges ?

        I have not read the post you are attacking. I do not care if it is left or right.
        Can you address the issues rather than just insult the poster.

    3. It is time for some new laws. Anything involving the FBI takes too long unless it is a political prosecution. The rest is slow walked until, “Oops! Statute of Limitations! Sorry suckers!”
      If Special Prosecutors were serious, the S of L would reset when he was appointed.

  3. Dennis,

    I agree that Turley is trivializing many aspects of 1/6 and is in denial of the *bad-faith* of Trump’s Big Lie from the get-go. I have suggested that Turley wishes to overlook the obviousness of the Big Lie because it would undermine Fox’s defense in its defamation lawsuit that it should have known that these election conspiracy theories were bogus when its hosts spread them to millions. But for Fox, 1/6 does not occur.

    But in fairness to him, he does not rule out the possibility, unlike a lying Trumpist, that Trump could be found guilty of a crime if the evidence is found. And he will accept a jury’s conviction of Trump which Trumpists never will.

    It’s important not to lump Turley with the Trumpists who follow him. He is not one of them despite his obvious pandering. He has more in common with us.

    1. J6 is being trivialized – because it is self evidently NOT the insurection, coup … that you keep trying to make it.

      The collusion delusion remains an actual illegal attempt to remove a president from office.

      The big problem you have with J6 is that Most people know the election smells like a sewer and they know that doing everything the constitution allows to “overturn” a lawless and fraudulent election is not a crime.

      The DOJ is going after the proud boys of insurection – and as we all wait with baited breath the evidence ? The planned a sittin at the capital.

      Mario Savio is rolling over in his grave;

      1. Merrick Garland should be charged with seditious conspiracy and if found guilty, punished to the max extent of the US Code. His failure to enforce federal laws.

        18 U.S. Code § 2384 – Seditious conspiracy

        If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

        1. Lets not do the same things Democrats do.

          If republicans wish to do anything – they should drag him in front of committees and grill the crap out of him.
          They should not take no for an answer on anything, and they should start blocking DOJ budget items until the get cooperation.

          If you must go further – impeach him.

    2. Jeff: You may be right. But so far Turley has not indicated any willingness to seriously consider the evidence of Trump’s crimes and those of Eastman and Giuliani and others. Just consider the testimony of AZ Speaker Rusty Bowers in Tuesday’s hearing. He testified that Trump, Eastman and Giuliani pressured him to change the election results– that Bowers already certified, and declare Trump the winner in AZ. That was a violation of federal and state election laws. Eastman said “Just do it” (overturn the election). Giuliani admitted to Bowers he had “theories” about election fraud but “no evidence”. Turley does not mention Giuliani’s admission. He simply dismisses “Just do it” as “far better in selling running shoes than in winning legal cases”. Trivialization. No attempt to seriously analyze the statements by the 3 Musketeers as part of a criminal conspiracy to overturn a legitimate election. Just an hour before Bowers was to testify Trump blasted him–saying Bowers had conceded “the election was rigged and that I had won”. Not true and contrary to Bowers sworn testimony. Trump then boasted he helped Bowers win his election in 2020 and without Trump’s support Bowers “would have been out of office”. Trump was willing to engage in witness intimidation and tampering to accomplish his criminal conspiracy. Turley’s column boils down to claiming all we have so far is the “criminalization of speech”. “Free speech” is always Turley’s fall back position when he has no real arguments to present in any given case.

      You say “It’s important not to lump Turley with the Trumpists who follow him. He is not one of them despite his obvious pandering. He has more in common with us”. As you probably know I have very little in “common” with Turley on the issues he discusses in his posts. Remember Turley is a paid “legal analyst” for Fox News. Fox initially refused to cover the Jan. 6 hearings live. That was “censorship” that Turley only complains about when it involves Twitter or Facebook or at universities. Fox calls the hearings “political theater”, a “witch hunt” and designed to enhance the Dems chances in November. Turley knows his role, to support the “Trumpist” Fox position. He will never contradict the Fox talking point of the day. Do you think Turley would continue his paid gig on Fox were he to find credible the evidence of crimes by Trump and his cronies? Sorry, but Trump is as much a “Trumpist” as anyone else on Fox. That’s why I predict that at the end of the day, after all the hearings have been completed and the Jan. 6 Committee has issued it’s final report, Turley position will be the same as day one. No evidence of any crimes. Ever the “Trumpist” is he!

      1. Dennis,

        Thanks for your reply. I agree that Turley is avoiding tackling the most damning evidence. He is bending over backwards to keep his job at Fox and remain in good stead. As you must know, I yield to no one on this blog in denouncing his abject hypocrisy in NEVER- not once- faulting Fox News for the mistakes and biases he rightly points out at Fox’s media competitors.

        However, it must be said that he does not subscribe to the Trumpist false narratives of calling investigations “witch-hunts” or accusing the FBI and DOJ of being a “Deep State.” Moreover, he has never called anything a “hoax.” He presumes, unlike Trumpists at Fox News, that people in government act in good faith unless the evidence to the contrary is unmistakable and undeniable. Turley often called out Trump for his falsehoods and condemned him for 1/6. No Trumpist would call for Trump’s Congressional censure as he did. Naturally, he was not allowed, to my knowledge, to make these statements on Fox News! The Fox producers cherry-pick what Turley has to say.

        There is no one more outspoken on this blog in stating that Turley’s employment at Fox is despicable for the very same reason had he joined the ranks of Infowars. Admittedly, Tucker Carlson, for instance, is not as gross a liar as Alex Jones, but neither was Joseph Goebbels as virulently antisemitic as Julius Streicher. I remain more convinced than ever that Turley will long regret earning a living off the rage provocateurs at Fox. His silence in the face of it will tarnish his professional legacy.

        I believe the acid test of whether Turley is a genuine Trumpist will be determined if and when Trump and his cronies are prosecuted. Now we know that Trumpists will accuse the prosecutors of engaging in a witch-hunt, claim the judges are harboring TDS, and argue that the juries are either biased or not impartial. For all these “reasons,” they will completely reject the verdicts as “rigged.” Turley, I predict, will not. His acceptance of the fair administration of Justice will prove, despite his disgraceful selling out to Fox, that he is not a lying Trumpist.

        1. Jeff: Turley reminds me of the comic/TV character “Superman”. On one hand “Clark Kent” is a mild-mannered reporter for the “Daily Planet”. But when he goes into the phone booth and takes off his shirt and tie he becomes a crime fighting super-hero. Similarly, Turley wants us to believe he is just a mild-mannered law professor who writes legal columns and law review articles and frequently appears to testify before Congress. But the real Jonathan Turley is the one you see on Fox who is an advocate for whatever is Rupert Murdock’s talking point of the day. You are right. Turley doesn’t resort to name-calling or the use of such terms as “witch hunt”. He, instead, employs words like “breathtaking” or “astonishing” to describe views with which he disagrees. Turley’s role on Fox is to provide a veneer of “legal” respectability to the views of Carlson and other Fox hosts who are willing to use more incendiary language that is red meat to Fox viewers. And Turley is paid handsomely for his appearances. Turley has yet to figure out why Lawrence Tribe gets more TV face time than he does. I think it’s because Tribe is willing to forgo a strictly legal analysis .Tribe gets more attention if he says Trump should be prosecuted for “Murder”. This appeals to network execs and their audiences. And Turley falls for Tribes provocations every time.

          Your reference to Carlson, Jones, Goebbels and Streicher is interesting. But remember the infamous Nuremberg Laws didn’t just appear on Hitler’s desk to sign. They were written by lawyers who sold their collective souls thinking they would be protected from persecution under the Third Reich. They were willing to forsake the democracy they pledged to defend under the Weimar Republic. Jewish lawyers found out the error of their ways. Most were prevented from practicing law and either went into exile or ended up in the death camps. Hitler hated lawyers but he needed to put a veneer of “legality” on what he was doing. There was one Jewish lawyer who was allowed to continue to practice under the Nazis. His name: Ernest Fraenkel. He represented political defendants in Nazi courts and actually worked for the resistance. He eventually immigrated to the US and published his famous treatise “Dual State” in 1941. How he survived is a fascinating story.

          Fascism comes with many faces. It doesn’t only come with marching jack-boots and swastika arm bands–although it’s doing that too these days in America. It comes gradually when lawyers forsake their duty to the Constitution and the rule of law and when right-wing courts slowly take away our constitutional rights. If we lose our Democracy it will be because lawyers, like Turley, failed us when it counted–and we failed to see the signs and act before it was too late. I think Turley will fail us when gives he gives his verdict on the Jan. 6 hearings. Maybe I’m wrong. In which case I will be more then willing to buy you a beer!

          1. Dennis,

            I consider myself a student of the Shoah, but I confess I have never heard about Ernest Fraenkel who sounds like he deserves a documentary. I’ll have to see what I can find. Thanks for the tip.

            We share the same opinion of Turley, more or less. But you should note that when he defends Trump against calls for his criminal prosecution, he invariably reminds his Trumpist readers that he tweeted his criticism of Trump as he was giving his 1/6 speech and cites to his article calling for his Congressional censure. He never fails to point out that he does not share Trump’s views despite his disagreeing with those who attack Trump.

            We would know more precisely where Turley stood were he willing to answer questions, but he will not participate in forums in which he might be asked tough questions. His avoiding accountability is cynical and unworthy of a teacher. Instead, he prefers to lecture us and pretend that “we have been discussing” when, in truth, the “we” does not include him but, rather, us.

            I’m prepared to give Turley a pass when it comes to his verdict on the 1/6 hearings. Despite his reservations of “no balanced representation,” he does not parrot the Trumpist cries of a “show trial.” He has not disputed the testimonies. His complaint is that it would prove more effective if it did not appear so staged and without cross-examination. He did not take issue with one word of the damning testimony of Barr who has been vilified by the Trumpists.

            As I have said, if and when Trump is prosecuted or sued and a jury’s verdict is rendered, Turley THEN will HAVE to either join the Trumpist cries of “railroaded” or defend the verdict. With Trump, you are either with him or against him. There is no middle ground.

            You may recall that the Trumpists claimed the jury in the Sussmann trial engaged in jury nullification. While Turley did raise concern about the perceived bias of some on the jury, he did NOT rule out the possibility of an impartial verdict and did NOT endorse jury nullification.

            It’s important to make these distinctions though Trumpists cling to the belief that Turley is on their side, but it will become undeniable in the fullness of time that Turley has always been a NeverTrumper. Turley should resign from Fox News so that he can become a truly impartial legal analyst, but every man has a price. If I’m wrong about Turley, I’m buying.

            1. Jeff: For starters on your research into Ernst Fraenkel see: RevDem, “Ernst Fraenkel–a Jewish lawyer who resisted the Nazis” (4/28/21)–an interview with Douglas G. Morris, a legal historian and criminal defense attorney in NY. He has a book “Legal Sabotage”.

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