Legal TRAPpings

For anyone who, like myself, has been a public sector employee and been interviewed, deposed or testified in a civil or criminal investigation, Monday’s evidentiary hearing in which former chief of staff Mark Meadows and former assistant attorney general Jeffrey Clark make their case to have their pending Fulton County trials assigned to a federal court brought back a flood of memories.  More importantly, the proceedings will involve some questions of law which to my knowledge have been largely ignored during the media coverage.  Provisions which allow the prosecution to lay a statutory trap to bolster their case.

Meadows has argued he was only doing his job when he placed calls or scheduled meetings with election officials in Georgia on behalf of the president. Expect his legal team to repeatedly declare, “That’s what chiefs of staff do.”  If that is the case, it is unfortunate there is no law preventing taxpayers having to fork over Meadows’ senior executive salary ($183,000/year) to the equivalent of an appointments secretary.  The prosecutors will no doubt respond, “Does your job description include making calls and setting up meetings with election officials for the sole purpose of asking a state official to manipulate the votes in a previously certified outcome?” If Meadows is in the witness chair, he might respond, “I set up all kinds of meetings on all kinds of topics.  I do not see how the substance of the president’s subsequent discussion makes a difference.”

In a Perry Mason moment, the prosecution continues, “Mr. Meadows, you do realize you have just confessed to a violation of the Hatch Act.  Under the Act, you are prohibited from political activity on federal time using federal resources.  You cannot transmit petitions for such purposes using government issued phones, computers or email.  And most importantly, you cannot use your official authority or influence to interfere with an election.  Mr. Meadows, did you do ANY of these things?”

No one has ever gone to prison for a violation of the Hatch Act.  Most infractions result in a warning or reprimand.  In the most egregious cases, an offender is fined and/or terminated.  If Meadow’s lawyers were really interested in their client’s welfare, they would request a recess, confer with their client and then tell Fani Willis and Jack Smith that Meadows will plead guilty to violating the Hatch Act multiple times, pay the appropriate fine and testify for the prosecution in both the federal and state trials.  Meadows can then spend the rest of his life with his family in the Macon County, North Carolina trailer he never owned or lived in,  where he claims to have voted in 2020.

Which brings us to the second trap, waiver of self-incrimination.  Willis’ filings include 161 specific acts which the prosecution claims are evidence of a criminal enterprise to overturn the results of Georgia’s presidential election.  However, as every legal expert explains, the challenge for Willis and her team is to prove the defendants’ intent.  The filings suggest she has the receipts to make her case including recorded conversations, text messages, draft documents, etc.  Refuting the prosecution’s claims may require the defendants to testify on their own behalf.  Meadows’ and Clark’s lawyers will help them shine the most favorable light on their actions during direct examination.  But what happens when the prosecution holds up tangible evidence to Meadows and asks, “Do you really believe this was merely a call to set up a meeting?”  Or with Clark, presents a copy of the draft DOJ communication to Georgia and other state legislators falsely claiming the department was investigating widespread fraud after Clark assures his own lawyers, “We were just exploring options.”

Both, I am sure, will be advised to invoke Fifth Amendment protection against self-incrimination.  Just one problem.  The Legal Information Institute at Cornell Law School describes an exception to this constitutional right as follows.

If a defendant takes the witness stand or a witness discloses self-incriminating information when answering specific questions, then the privilege is waived. Once waived, individuals cannot assert the privilege again when the prosecutor cross-examines their testimony.

Consider the following hypothetical.  The prosecution challenges Clark’s contention the draft memo was just an option.  “Mr. Clark, on January 3, 2021, did you call the president and tell him, if you were named acting attorney general, you would send the ‘draft’ to state legislators and recommend they name their own slate of Trump electors?”  The chorus of “Objection, your Honor” from the defense table will be deafening. 

However, the presiding judge will likely overrule the objection, explaining,  “Mr. Clark testified he only considered the DOJ correspondence as an ‘option.’  That, in and of itself may be an illegal abuse of power, even if he had never discussed it with the president.  You and your client opened the door.  You cannot now make the room inaccessible to the prosecution.”

MGM and Caesars Sport Books say the odds of either Meadows, Clark or any other Georgia co-defendant taking the stand on Monday are infinitesimal.  Yet, you might want to put a few dollars down since much of what has transpired post-November 3, 2020 defies probability.

For what it’s worth.

One thought on “Legal TRAPpings

  1. And the Statute of Limitations is tolled. I think also of the doctrine of “collateral estoppel”.

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