ENEMY OF THE UNITED STATES . . . DOMESTIC
Untitled, Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
I’ve been following the debate over whether Trump should be prosecuted for his many alleged crimes against the United States. His apparent crimes span many decades leading up to his presidency, his entire administration and ongoing in real time.
Some opine the country cannot heal if Trump is prosecuted for crimes which over 72 million people do not believe or don’t care that he committed. They suggest the inevitable revolt and further division would not be worth the benefit to preserving and reinforcing this defining principle of self-government in the United States: the rule of law that no one, including – especially – the most powerful elected official, is above.
While promising not to pardon Trump, President-elect Biden has telegraphed he does not want his administration consumed by further Trump distractions.
Others query whether the rule of law could ever be vindicated and preserved absent the full array of prosecutions. If not, many argue, Trump—whose emergence to the presidency and entire administration was and continues to be defined by a level of corruption never before encountered in the highest office of the American experiment—will have proved he is above it.
Absent a valid pardon rendering moot all prosecutions for federal crimes, my answer is an unequivocal yes: he must be prosecuted. The most public, notorious criminal in the United States if not the world, the person who publicly flaunts the law and its application to him, must be publicly held to account for his crimes.
Pardon or not, however, I expect the attorneys general and district attorneys in New York and certain other states where Trump and his collaborators have allegedly committed crimes will proceed without interference or influence by the Biden Administration. Or they will ignore any attempts to limit or suppress prosecutions.
I also expect the next attorney general, inevitably a person of high intellect, integrity and wisdom, will have the independence to make such decisions, and Biden’s White House will be walled off from prosecutorial discretion at the Department of Justice.
The damage Trump is inflicting on the most fundamental principle of liberal democracy – the mechanism by which individual citizens participate in self-government and together decide who our leaders will be – is unforgivable. The domestic attacks are much more insidious and damaging than those brought by foreign actors. Why? The country cannot unite against a common enemy but instead divides against itself. Moreover, the perpetrator’s substantial, but minority, following includes people whom Trump has encouraged (people who are willing, if not eager) to commit acts of domestic terror when Trump doesn’t get his way. For more than any of Trump’s many other sins against the United States and its citizens, Trump must be held to account for the crimes he is committing in attempting every conceivable, including illegal, means to hold onto power by overturning or nullifying the will of a majority of the people and a substantial victory in the arcane, conservative-favored electoral college.
Untitled, Oil on Panel, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
I remember when the principal threat to the United States electoral process (and to the sovereignty of its citizenry) was foreign. I remember when a grand jury returned an Indictment against 13 Russian nationals and three Russian companies for interfering in the “U.S. political and electoral processes, including the 2016 U.S. presidential election.” The Indictment alleged:
“From in or around 2014 to the present, Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016. . . . The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. presidential election.”
United States v. Internet Research Agency, et al., United States District Court for the District of Columbia, Case No. 1:18-cr-00032-DLF Document 1, Filed 02/16/18, at 2–3, 12.
The next United States Attorney General should dust off the Mueller indictment charging the Russians and use it as a template for bringing criminal charges against everyone involved in the current Trump-led and -inspired conspiracy to “impair, obstruct and defeat the lawful governmental functions of the United States by dishonest means in order to enable them to interfere with the U.S. political and electoral processes, including the  U.S. presidential election.”
Potential targets include Trump, Graham, Murphy, Loeffler, Perdue, Palmer, Hartmann, Giuliani, Powell and certain leadership in the Republican party, among many others. Even if Trump finesses his own pardon, the Department of Justice still could reprise his old role as Individual-1, an unindicted co-conspirator.
For us legal nerds, the so-called “defraud clause” in the general criminal conspiracy statute does not require as an element the purpose of committing some separate offense. “[A]ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.” Courts have interpreted “to defraud” the United States to require only that “its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.” It is “designed and intended to protect the integrity of the United States and its agencies, programs and policies.” Financial or pecuniary loss is not required.
“The intent required for a conspiracy to defraud the government is that the . . . defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency which disrupted the function of the agency or of the government. It is sufficient for the government to prove that the defendant knew the statements were false or fraudulent when made.”
Trump and Trumpism are not going away. Continuing his authoritarian campaign to undermine liberal democracy and the rule of law, he will reign over a lucrative disinformation empire. Trump’s base believes and will continue to believe what they choose to believe, despite overwhelming evidence to the contrary.
In my view, one substantial and effective means to rebuild and reinforce confidence in the integrity of electoral system, to counteract the false information about his administration—that he won the 2020 presidential election or that Biden would not have won but for massive fraud—is to give Trump and his co-conspirators their day in court for all the world to witness. Trump and his co-conspirators will be unable to develop and introduce admissible evidence that he won the election or that Biden rode a massive wave of fraud into the White House. The country, indeed the world, will be able to witness that, in the United States, we hold our leaders accountable for their crimes against the United States.
Then, and only then, will the cowering Republicans emerge from their bunkers, disavow Trumpism and their complicity in his crimes, and begin the process of attempting to rewrite their personal and political histories.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming and Norway, dropped on November17, 2020 fall. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers