Trump’s Prosecutors Cannot Avoid the Law of Unintended Consequences
by John D. O’Connor
The following is an article originally published on The Blaze. Read it HERE.
__________________
Donald Trump’s detractors, hungry for his humiliation, may be in for some big, unwanted surprises if election subversion charges against him go to trial next March.
The law of unintended consequences will likely reopen 2020 election wounds, providing Trump with a long-sought forum for his heretofore suppressed proof of grievances and allowing his true misdeeds to be overlooked. These results will assuredly not be what Joe Biden and Merrick Garland wanted.
Let’s start with the contretemps over what appeared to many Americans to be significant lapses in the 2020 presidential election, some that were unfortunate artifacts of the COVID pandemic while others appeared to be intentionally fraudulent practices. What were people to make of the millions of unsolicited mail-in ballots, the lack of signature verification, and the opportunistic ballot harvesting that resulted from both? More than 60 election-related lawsuits were largely unsuccessful, which frustrated conservatives and independents while giving the media baseless talking points that 2020 was the “most secure election” in our country’s history.
In fact, each meaningful lawsuit was dismissed on a process basis, meaning that the overall merits of any state’s election were never adjudicated. The dismissals were mostly correct, since elections are not meant to be relitigated in court. But yes, the Wisconsin and Pennsylvania state supreme courts handed down nakedly partisan decisions clearly meant to avoid confronting unconstitutional election practices. The angry, highly articulate dissents in the Wisconsin Supreme Court case (decided 4-3 on party lines) should be required reading for anyone who spouts the “Big Lie” shibboleth.
Somewhat similarly, a Georgia court initially agreed that a private nonprofit organization could examine questionable absentee ballots in Fulton County in light of rampant irregularities. Georgia Secretary of State Brad Raffensperger jumped into the fray, agreeing that Fulton County had a history of election mismanagement. But he persuaded the court that private parties should not open these ballots; rather, the case should be dismissed so that his office could investigate thoroughly. Of course, Raffensperger did not.
Nonetheless, these process decisions, avoiding any ruling on the merits, became a main talking point for a media wishing to avoid any challenge to Joe Biden’s legitimacy.
The state court rulings were bolstered by unfortunate declarations of the normally sober Attorney General William Barr, who declared there was no proof of “fraud” sufficient to overturn the election. Barr was referring only to criminal fraud provable against identified perpetrators, not to illegalities, irregularities, or practices that permitted fraud. In fact, Barr noted that certain practices enabled fraud. He simply could not determine, in his brief, superficial investigation of a few referred cases, that sufficient fraud took place.
That said, election objectors held the moral high ground until January 6, 2021, when elections protests got out of hand. These violent aspects were well anticipated by the Capitol Police and the FBI, who did nothing to stop the small minority of violent saboteurs among the million-strong protesters. A sober, diligent Senate report, prepared in bipartisan fashion by Senators Amy Klobuchar (D-Minn.) and Rob Portman (R-Ohio), enunciated in lawyer-like detail the profound failures of the Capitol Police, Congress, the FBI, and Trump’s own Department of Defense. Needless to say, there is no evidence that anyone actually read it.
But in contrast to the bipartisan Senate report, the televised hearings of the highly partisan January 6 committee garnered great publicity, while the committee constantly harangued any objectors as disseminating the “Big Lie.” Yes, some elections objections, such as the Dominion Voting System and “Kraken” claims, turned out to be baseless, which in the eyes of many tarnished the protests entirely.
Given all the foregoing, after the country saw Biden inaugurated, the raw, passionate furor over a seemingly unfair election subsided, as the electorate looked not backward but forward.
With Biden’s continuing weak public approval, however, his administration sought to cripple Trump, insensitive to existing conservative disgruntlement with the former president. After all, Trump’s antics cost Republicans two winnable Senate runoff elections in Georgia last year and thus the GOP’s control of that chamber. Trump’s poll numbers in the aftermath were unimpressive. But the insecure Biden could not resist a coup de grace.
It is an accepted trope that Trump has been strengthened by public outrage over what appears to be a weaponized, two-tier system of justice, which Biden has now put on steroids.
This brings us to the sense that this recent, fourth indictment in Georgia of the controversial ex-president, meant to drive a stake through his heart, was in fact a lifesaving operation for Biden’s chief antagonist.
The indictment in essence charges that Trump lobbied to have Vice President Mike Pence delay vote certification, while brandishing “false” slates of electors, under the claim that the Republicans in fact won certain states.
The gist of the charges? Trump “knew” that he had lost the election in the key, close-margin swing states.
As these charges play out, not over a few weeks but over the next eight months, Americans will have the chance for unhurried reflection on exactly how tenuous and uncertain were the disputed swing state results.
What’s more, the burden of proof will now be reversed, as well as the form of “proof” that should be admissible as to defendant Trump’s state of mind.
The vast majority of courts reviewing the postelection objections demanded that the plaintiff meet the burden of showing, by competent, admissible evidence, particular miscounting. For example: I, John Q. Doe, was listed as voting, whereas in fact I did not vote, meaning someone filled out the ballot in my name. But such an affidavit proved only one potential vote miscount. Physical sampling or statistical analysis pointing to widespread anomalies unfairly favoring Biden were not cognizable “proof” for those who bore the burden of proof.
In the criminal case, however, Trump does not bear the burden of showing any state election result was incorrect. Rather, the burden is on the prosecution to show, beyond a reasonable doubt, that Trump “knew” he lost. In response, Trump should be able to show statistical irregularities as proof of his good-faith belief that he won, evidence not relevant in election protests.
And these samplings are quite powerful. One Wisconsin analysis estimated that Biden benefited by 20,000 net votes from illegal absentee ballots. In one ward in Milwaukee, voting increased 1,285% from the last election. Sixty-six of 91 analyzed nursing homes, with differing managers, reported 100% voting; the others each reported over 95%. In Georgia, where 6.4% of mailed ballots were rejected in 2016, 0.36% were rejected statewide in 2020, with a 0.05% rejection rate in historically mismanaged Fulton County. Disqualified ballots in Fulton County, in other words, were 1/128th of historical norms. Indeed, after counting there had been apparently stopped at 10:30 p.m. on election night, with poll observers gone, 23,487 more ballots were counted, with 23,000 of them going to Biden.
In Arizona, under a consent decree obtained by a pro-immigrant nonprofit, “federal-only” voters were allowed to vote without any proof of citizenship, favoring Biden by 8,000 votes. Overseas ballots for Maricopa County, which normally would skew Republican, stunningly went 95% for Biden.
There are plenty of additional irregularities, which could fill a lengthy book. None would necessarily “prove” Trump won. But they do disprove any criminal state of mind, which the prosecution must prove beyond a reasonable doubt. If the court rejects such proof, the judge invites practically certain reversal, perhaps through an embarrassing mid-trial writ proceeding. While this proof is being adduced, the populace would now be able to review multiple, significant irregularities that evaded close attention after the 2020 election.
If Trump is as unrestrained in proof as any criminal defendant should be, the case will take months to try. So while the citizenry will become increasingly outraged at intentionally shoddy election safeguarding, in all likelihood the Mar-a-Lago documents trial scheduled for May 20, 2024, would be postponed until after the 2024 election.
If the public is then deprived of this second federal trial, Trump’s worst alleged misdeeds — obstruction and lying regarding classified documents — may be lost to posterity.
All of this augers a Shakespearean tragedy: Biden, not content to bask in the glow of his coronation to lead the world’s greatest country, would see his crown tarnished by what will look like abject thievery by his supporters, enabled by him. The ham-handed Georgia indictment, then, may be the last shoe to drop disqualifying Biden from a second term.
If Biden sought to make Trump a sympathetic figure and California Governor Gavin Newsom a white knight to rescue the Democratic Party from defeat, he will have succeeded brilliantly in spite of himself.
While we all absorb in coming months proof of the trashing of all meaningful swing-state election safeguards, our laws will appear sickeningly weak, except for one: the law of unintended consequences.
__________________
John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of the books, Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate and Began Today’s Partisan Advocacy Journalism and The Mysteries of Watergate: What Really Happened.