CORRESPONDENCES OF MARC SUSSELMAN PART 1
Re: The indictment
Marc Susselman <marcsusselman@gmail.com> Mon, Aug 7, 2023 at 12:14
AM
To: David Zimmerman <david_zimmerman@sfu.ca>
Cc: "s. wallerstein" <vivepablo@gmail.com>
David,
I have reviewed your email, watched the video produced by Legal Eagle you
linked to, and read the article by Teri Kanefield which Anonymous linked to in
Prof. Wolff’s post yesterday. After again reviewing the indictment, I stand by
my position that Jack Smith, under the indictment as written, cannot, and should
not be able to, convict Trump unless he has evidence that Trump actually
expressly admitted to someone that he knew he had lost the election, and still
persisted in claiming that he had won and engaged in various schemes to
prevent the certification of Biden as President. And here is why: (As prologue,
I should point out that anyone who has read my comments about Trump on
Wolff’s blog in the past should know that I despise Trump and think that he is
scum. By what I write below I am not carrying a brief in support of Trump
(pun intended). But I will not abandon my intellectual integrity in order to
claim that the indictment which Jack Smith has pled against him makes a case
for Trump’s conviction.)
Suppose Trump announced that he firmly believes that unicorns exist
somewhere in the universe, and he persisted in claiming this despite millions of
people telling him this is a ridiculous idea since no one has actually ever seen a
unicorn. Trump could continue to insist that he believes that unicorns exist, and
unless everything in the universe was inspected, and no unicorns were
discovered, he had a right to believe this. Would the fact that millions of people
insisted that he was wrong, and told him so, and said he was insane to believe
this, would it follow that he knows that there are no unicorns in the universe
and that he is lying when he maintains that he believes this? As a philosopher,
and a student of epistemology, you would, I assume, agree that the fact that no
one has ever seen a unicorn does not entail that there are no unicorns, and does
not entail that Trump cannot truly believe that there are unicorns (or at least one
unicorn), and therefore he must be lying and knows that there are no unicorns in
the universe.
People, including Prof. Wolff, you, LFC, David Palmeter, and everyone who
supports Prof. Wolff lockstep are misconstruing Trump’s claim about election
fraud. They are allowing their hatred and antipathy towards Trump to abandon
their purported intellectual integrity and blind them to what Trump is actually
claiming, in order to conclude that Jack Smith has an open and shut case. They
are the victims of confirmation bias. When Trump claims that he believes there
was massive election fraud which deprived him of his election victory, he is not
claiming that ballots which have been counted and indicated a vote for Biden
were forged or manufactured ballots. This could be easily disproved,
debunking his belief, by showing him each Biden ballot and demonstrating that
the ballot was genuine and had not been tampered with in any way.
But this is not what Trump is claiming. He is claiming that pro-Trump ballots
which were cast in his favor have been missed, or overlooked, or in fact
deliberately hidden, in order to not be counted, and if they were counted, he
would have won. All the election officials, and millions of Democrats, and
Prof. Wolff, and LFC, and David Palmeter – and you – could say, “That’s
ridiculous. There is no evidence that there are any, and certainly not that many,
pro-Trump ballots missing, or deliberately hidden, or stolen, and you cannot
honestly believe this, and therefore you know that this is not true and you are
lying.” As a philosopher, and a student of epistemology, you should agree that
this argument does not hold any more water than if Trump’s hypothetical belief
that there are unicorns could be disproved by showing him that nothing we have
seen to date is a unicorn. Trump could legitimately continue to believe that
there are unicorns, and no one who is intellectually honest could claim that he
cannot believe this, and therefore must be lying.
The same analysis applies to his belief that there are a lot of pro-Trump ballots
which have not been counted – no one can prove that he does not believe this,
that he knows there are not that many pro-Trump ballots, and therefore must be
lying. And evidence that no additional pro-Trump ballots have been found,
even though every possible location where election ballots could be found has
been searched, would entail that Trump could not legitimately believe that there
were additional uncounted pro-Trump ballots, and his insistence that such
ballots exist must be a lie. This would prove that it is highly unlikely that
Trump actually believes that such ballots exist, but would not prove that he
actually does not believe that such ballots exist. Jack Smith, however, did not
claim in the indictment that it is highly unlikely that Trump believes there was
election fraud; he states repeatedly in the indictment that Trump knows that
there was no election fraud. The only way this could be proved is if he had
actually told someone else that he knew there was no election fraud and that
there were no pro-Trump ballots which had not been counted, or at least not
enough pro-Trump ballots to give him the win. Without such evidence, no one
can read his mind – and certainly not Jack Smith – and can prove that Trump
does not really believe this and knows that there are no, or at least not that
many, pro-Trump uncounted ballots sufficient to give him the win. (This
argument is an analogue of Hempel’s Confirmation and Nassim Taleb’s Black
Swan paradoxes.)
Some will say that this argument ignores Trump’s telephone call to
Raffensberger in which he pressured Raffensbeger to “find 11,780 votes,”
which would make him the winner. Everyone interprets this to mean that
Trump was asking Raffensberger to fabricate 11,780 pro-Trump ballots which
did not actually exist. But this is not necessarily what Trump meant. A valid
interpretation of what he was asking Raffensberger to do was to more carefully
review all the ballots which were cast in Georgia and make sure they had not
missed or overlooked 11,780 votes in Trump’s favor. If I were representing
Trump (which he has not asked me to do, and no amount of money he might
offer to pay me would make him my client), I would not call Trump as a
witness to explain what he meant when he made that telephone call. Rather,
when Smith called Raffensberger to testify (which he would have to do,
otherwise the contents of the telephone call would be hearsay), I would cross-
examine him and ask him: “Mr. Raffensberger, when President Trump called
you and said this to you, isn’t it possible that he was asking you to recount all of
the ballots which were cast in order to confirm that there were not 11,780
additional votes cast in his favor.” I am positive that Mr. Raffensberger,
testifying under oath, would testify that this was possible, but not how he
interpreted the question. And then I would cross-examine him on what basis he
interpreted it as a request to manufacture pro-Trump ballots, rather than more
carefully search the ballots and make sure there were no additional pro-Trump
ballots overlooked. I would ask him if he was able to read Trump’s mind. He
would answer, No, he could not. This would raise reasonable doubt regarding
which interpretation of what Trump asked was valid.
Let’s now look at the contents of the indictment. In my comment which Prof.
Wolff deleted (along with all of my other comments), I indicated that in ¶2 of
the indictment, Jack Smith states, “Despite having lost, the Defendant was
determined to remain in power. So for more than two months following
election day on November 3, 2020, the Defendant spread lies that there had
been outcome-determinative fraud in the election and that he had actually won.
These claims were false, and the Defendant knew that they were false.” This
allegation – that Trump knew that his assertions of election fraud were false – is
incorporated by reference into each one of the 4 counts which are thereafter
included in the indictment. In her analysis of the indictment, Teri Kandefield
states: “This is a speaking indictment, which means the DOJ wants everyone to
know the truth. The fact that there is so much overwhelming evidence that
Trump knew he was lying, he knew he lost, and he knew there was no outcome-
determining fraud is important for the country to know.” This is an
intellectually indefensible statement. The fact that we may all believe he was
lying; that multitudes of people told Trump that he had lost the election; that it
is highly unlikely under the circumstances that he actually believed he had won
the election – does not prove that he actually does not believe that he won the
election and that he knew he had lost the election. Smith cannot prove that
Trump knew he lost the election unless he has a witness who will testify that
Trump told him/her that he knew he had lost the election. Now, it is possible
that Smith does have such a witness, but nowhere in the indictment does he
state this. And the fact that it is a speaking indictment and does not have to
include all of his evidence in support of his allegation that Trump knew he had
lost the election, obviously does not mean that he actually has such evidence,
and unless he calls such a witness to testify, he cannot prove his case against
Trump. ¶2 is not the only place where Smith makes this allegation, however.
He repeats it several times, and the first averment in each of the criminal counts
states that the count incorporates by reference ¶s 1 through 4 and 8 through 123.
In ¶8, the indictment refers to several unnamed co-conspirators, without
specifying the evidence on which they are claimed to be co-conspirators, i.e.,
that Trump met with them and discussed a joint effort to overturn the election.
The indictment says of Co-Conspirator 1, for example, that he is “an attorney
who was willing to spread knowingly false claims and pursue strategies that the
Defendant’s 2020 re-election campaign attorneys would not.” But the fact that
Co-Conspirator 1, whoever s/he is, spread knowingly false claims, i.e., claims
that Co-Conspirator 1 knew were false, does not entail that Trump did not
believe the claims in question, and therefore did not know them. Moreover,
whatever false claims Co-Conspirator 1 was spreading, it may not have been the
claim that Trump was making – that there were ballots cast in favor of Trump
that had not been counted.
In ¶8(c), the indictment states, “Co-Conspirator 3, an attorney whose unfounded
claims of election fraud the Defendant privately acknowledged to others
sounded ‘crazy.’ “ This does not entail that Trump knowingly spread false
claims of election fraud, because it does not entail that Trump believed the
claim there were pro-Trump ballots which had not been counted was “crazy.”
The claim of Co-Conspirator 3 which Trump may have called “crazy,” may
have been a claim that ballots cast for Biden were manufactured, which was not
Trump’s claim. We of course will not know what this evidence is until the
trial. But Co-Conspirator 3 may deny that Trump said this to him, or may
testify that his claim was not the same claim that Trump was making, and we do
not know what evidence Smith has to impeach him.
In ¶90, the indictment states: “On several private phone calls in late December
and early January, the Defendant repeated knowingly false claims of election
fraud and directly pressured the Vice President to use his ceremonial role at the
certification proceeding on January 6 to fraudulently overturn the results of the
election, and the Vice resisted ,,, ,” Since this statement is written in the
conjunctive, Smith has to prove both of the elements referred to, including that
Trump “repeated knowingly false claims of election fraud.” Unless he can
prove both, the antecedent for the following list of actions involving Pence do
not apply. As I argue above, Smith cannot prove that
Trump knowingly repeated false claims of election fraud unless he has a
witness who can testify, unequivocally, that Trump told him/her that he knew he
lost the election.
In ¶90, Smith proceeds to list a number of interactions with Pence which Smith
maintains demonstrate that Trump was interfering with Pence’s performance of
his constitutional duties to certify the election. But all of the instances of
interaction with Pence were verbal. There is no evidence that Trump held a gun
to Pence’s head or threatened him physically, if he did not behave more
dishonestly. Nowhere in the indictment does Smith link the shouts by the
protesters, “Kill Mike Pence” to any action by Trump. Trump’s verbal
exhortations directed to Pence cannot possibly constitute the kind of
interference which is prohibited by 18 U.S.C. 1512(c)(2), the basis of one of the
statutory criminal counts cited in the indictment (discussed more fully below).
Contrary to Ms. Kenfield’s claim, every one of the criminal counts pled against
Trump is predicated on his proving that Trump knowingly lied about the
election fraud because he knew there was no fraud – fraud, again, based on his
belief that there were pro-Trump ballots which had not been counted, which had
disappeared, which were being hidden, and/or which had been destroyed.
Smith cannot prove that Trump knows this is not true unless he has a witness
who can testify that Trump stated he knew it was not true.
I am not the only attorney claiming this. Allan Dershowitz, who knows a hell
of a lot more about criminal law than I do (and to whom I sent an email after he
represented Trump during his impeachment excoriating him for doing so) has
said, “I did not believe that the government would bring this indictment unless
it had corroborated evidence that Trump had told people that he knew he ha
been defeated and was challenging the results for fraudulent and corrupt
purposes. But from what I have read and heard, they don’t appear to have any
such evidence. If the government fails to prove Trump’s state of mind beyond a
reasonable doubt, the indictment against him may well backfire – politically.”
Nor can Smith prove via circumstantial evidence that Trump knew he had lost.
In fact, as I wrote in comments which Wolff has deleted, the circumstantial
evidence supports the conclusion that Trump did believe that he had won the
election, and that there had been election fraud. All of his efforts contesting the
election results are circumstantial evidence that he does in fact believe that he
won the election, and that there was election fraud, thereby undermining the
conclusion that he knows he lost.
An example of the specious nature of the allegations in the indictment is in ¶83,
which discusses a meeting between him and Gen. Milley on Jan. 3, 2020, in
which Milley briefed Trump on an overseas national security issue. When
Milley and another advisor recommended to Trump that he not take action
before the Inauguration, Trump responded, “Yeah, let’s leave it for the next
guy.” Some claim, including the Legal Eagle expert whose video you linked to,
that this evidence that Trump knew he had actually lost. Nonsense. All this
indicates is that Trump acknowledged that Biden had been named the winner. It
is not an acknowledgement that he believed that Biden was the legitimate
winner, or demonstrates that when he claims there was election fraud, he knew
this was not true. He can acknowledge that Biden officially own, while still
believing that but for the election fraud, he, Trump, would have won, and
therefore really did win.
Despite all he verbiage on Wolff’s blog about how strong the indictment is, no
one, including LFC, offered any analysis of the actual legal criminal counts
which were itemized in the indictment. Everyone was commenting without
having read the actual language of the criminal statutes which Smith is accusing
Trump of violating. The four counts charge Trump with violating 18 U.S.C. §
1512(c)(2); 18 U.S.C. § 1512(k); 18 U.S.C. § 371; and 18 U.S.C. § 241.
Let’s take them one at a time. 18 U.S.C. § 1512 is headed: “Tampering with a
witness, victim, or an informant” and states in § (c)(2): “Whoever corruptly
otherwise obstructs, influences, or impedes any official proceeding or attempts
to do so, shall be fined under this title or imprisoned not more than 20 years or
both.” The very title of the section refers to witness tampering and tampering
with respect to proceedings in a court of law. In fact, in United States v.
Ermoian, 752 F.3d 1165 (9 th Cir. 2019), the Court held that the term “official
proceeding” refers to proceedings related to a lawsuit, civil or criminal, in a
court of law. The courts, and particularly the Supreme Court, take the language
used is statutes, and particularly criminal statutes very seriously. See, e.g., the
difference of opinion between Justice Sontomayor and Justice Kagan
in Lockhart v. United States, 577 U.S. 347 (2016), over the meaning of a
criminal statute which created mandatory minimum sentence if he accused had
a prior state court conviction “relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor or ward.” The question was
whether the phrase “involving a minor or ward” referred only to the last
element in the disjunction, “abusive sexual conduct,” or modified all three
elements in the disjunction. This was critical, because if it referred to only the
last element, then an accused could be given a mandatory minimum sentence if
he had committed either of the first two offenses, even if they did not involve a
minor or ward. Sontomayor maintained that the phrase referred only to the last
of the three elements, and therefore the accused, who had not abused a minor,
but had been previously convicted of sexual abuse of an adult, could be given a
mandatory minimum sentence. Kagan disagreed, and maintained that the last
phrase referred to all three elements in the disjunction, requiring reversal of the
defendant’s mandatory minimum sentence. Sontomayor’s position prevailed,
and the sentence was affirmed. The point is that the use of the term “official
proceeding” in the statute, as supported by the heading of the statute, applies
only to court legal proceedings. But the certification of the election results in
the House of Representatives was not a court proceeding. Therefore, the statute
has absolutely no application to Trump’s alleged interference with Pence’s
certification of the election results. In all likelihood, this count will be
dismissed on a motion for a directed verdict. If the trial judge does not dismiss
it, I am confident that either the D.C. Circuit Court or the Supreme Court will
dismiss it.
18 U.S.C. § 1512(k) states, “Whoever conspires to commit any offense under
this section shall be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the conspiracy.” But this
sub-section only applies if Smith can prove violation of one of the provisions
above § 1512(k). But the only sub-section Smith has charged Trump with
violating is § 1512(c)(2), which only applies to court proceedings. Since he
cannot prove a violation of § 1512(c)(2), he cannot prove a violation of §
1512(k).
18 U.S.C. § 371 states: “If two or more persons conspire either to commit any
offense against the United States, or to defraud the United States, or any agency
thereof in any manner or for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy each shall be fined under this title
or imprisoned not more than five years or both.” The statute applies where an
accused has violated another federal statute. See, e.g., U.S. v. Ellis, 121 F.3d
908 (4 th Cir. 1997) (the defendants violated this statute when they committed a
robbery at a federal bank). This statute was purportedly violated by Trump in
his alleged participation in a scheme to send a slate of false electors to
Washington. But Smiht cannot possibly prove a violation of this statute, even if
he can prove that Trump participated in such a scheme. Why? Because under
Article I, Sec. 1 of the U.S. Constitution, how the electors are chosen is decided
by the law of the individual states, not federal law. The alleged scheme to send
false electors to Washington could only violate the law of the respective state,
not federal law. But violating a state law does not constitute an offense against
the United States, or an effort to defraud the Untied States. This is a bogus
criminal claim, even if Smith can prove that Trump actually participated in the
alleged scheme, rather than it being some scheme cooked up only by Giuliani
and others. This claim will likely be dismissed on a directed verdict after the
prosecution has concluded its case. If not, it will be dismissed on appeal by the
D.C. Circuit or the Supreme Court, if Trump is convicted of violating it.
This leaves 18 U.S.C. § 241, Conspiracy against rights, which states: “If two or
more persons conspire to injure, oppress, threaten, or intimidate any person in
any State, Territory, Commonwealth, Possession, or District in the free exercise
or enjoyment of any right or privilege secured to him by the Constitution or
laws of the United States, or because of his having so exercised the same, They
shall be fined under this title or imprisoned not more than ten years, or both
…” Smith is presumably claiming that Trump violated this statute by verbally
pressuring Pence to reject the electors sent to Washington and certify false
electors instead. He pressured Pence by saying such things as “you’re too
honest.” Mind you, Smith is not charging Trump with having encouraged the
insurrectionists to shout, “Let’s kill Pence.” He did not order them to stop
shouting such threats, but this does not equate to endorsing or encouraging it;
and, in any event, Smith has not charged him with doing so. This statute was
enacted in order to prosecute members of the KKK who were harassing,
intimidating, and physically injuring, even killing, Blacks in the Jum Crow
South. In United States v. Guest, 383 U.S. 745 (1966), the Supreme Court held
that the statute could be applied to prosecute private individuals (presumably
White) for conspiring to deprive Black living in he vicinity of Athens, Georgia,
of the free exercise and enjoyment of their constitutional rights, via such means
of falsely arresting Black citizens by means of false criminal reports. In U.S. v.
Magleby, 241 F.3d 1306 (10 th Cir.2001), the Court sustained the conviction of
the defendant under this statute for burning a cross on the property of a number
of Black citizens. Does Trump’s efforts to verbally pressure Pence to refuse to
certify the election of Biden come anywhere close to the forms of intimidation
used in Guest or Magley? Such a suggestion is laughable. This count, like the
prior two counts, is likely to be dismissed on a motion for a directed verdict; if
not, his conviction will be overturned by the D.C. Circuit or the Supreme Court.
For those who may claim that I am underestimating Smiht, that he would not be
so stupid as to bring charges that he could not prove, I would remind them of
the fiasco he engaged in by prosecuting Virginia Gov. Robert McDonnell and
his wife for allegedly taking bribes in exchange for performing “official acts”
on behalf of the alleged briber. The alleged briber was a businessman who
sought Gov. McDonnell’s assistance in arranging meetings to promote a
nutritional supplement he had developed. He wanted the governors assistance
in encouraging pubic universities in Virginia to conduct studies demonstrating
the effectiveness of the supplement. The McDonnells received $175,000 in
loans, gifts, and other benefits from the businessman. Smith claimed that they
were bribes, and that McDonnell arranged meetings with Virginia officials to
discuss the supplement. Smith claimed that these arrangements constituted
“official acts,” which constituted a conspiracy to commit honest services fraud
under 18 U.S.C. §§ 1343, 1349. McDonnell and his wife were convicted. The
Supreme Court reversed 8-0, holding that the meetings which Gov. McDonnell
arranged did not constitute the kind of “official act” contemplated by the
statute. In sum, Jack Smith has the reputation of being an overzealous
prosecutor who overreaches, and I believe that is precisely what he has done by
indicting Trump on the flimsy charges outlined above. In fact, if I turn out to be
correct, rather than protecting this country against Trump – who I believe is a
very dangerous man and a serious threat to our democracy – he may have
enhanced Trumps prospects of defeating Biden and being re-elected President.
Will it have been worth it?
As dismaying as the prospect that Smith will likely fail in his prosecution is,
and its dire consequences for our country, I find it equally dismaying that Prof.
Wolff, and the readers and commenters on this blog, all of whom are supposed
to be sophisticated thinkers and academics, people of intellectual integrity, who
have rushed to judgment without actually reading the indictment with a critical
eye, and not even looking at the wording of the statutes which Smith claims
Trump violated, and you have done this in order to satisfy your thirst for
revenge against Trump. Is your failure to apply rational critical analysis any
better than the absurd, irrational claims which are adopted and endorsed by
Trump’s fervent followers?
Many commenters on this blog have accused me of engaging in gratuitous ad
hominem attacks in my comments insisting that Smith had to have direct
evidence that Trump had told someone that he actually knew he had lost the
election, and in, for example, criticizing LFC for his misunderstanding of the
Federal Rules of Evidence on the burden of proof and hearsay. But I challenge
anyone to point out where I expressed any ad hominem attacks in the thread.
Blunt criticism of someone for making grossly erroneous comments about the
law, and commenting on an indictment they admit they have not even read, does
not constitute an ad hominem attack. It constitutes candid evaluation and
criticism of incompetence.
Best regards, David.
Marc
Marc Susselman <marcsusselman@gmail.com> Mon, Aug 7, 2023 at 7:21
PM
To: "s. wallerstein" <vivepablo@gmail.com>, David Zimmerman <david_zimmerman@sfu.ca>
By way of background regarding the lawsuit which Mulvaney is referring
to, in 2019 I learned that there were a group of protesters who were picketing in
front of a synagogue in Ann Arbor, Michigan. They had been picketing the
synagogue every Saturday morning for then 16 years, purportedly protesting
Israel’s treatment of the Palestinians, but commingled among their signs about
the conflict were blatantly anti-Semitic signs, such as “Resist Jewish Power”;
“Jewish Power Corrupts”; “No More Holocaust Movies.” The numbers of the
picketers varied over the years from a high of 25 to a low of 6-8. Several of the
protesters were avowed Holocaust deniers and neo-Nazis. In addition, the
protesters were placing their signs, which numbered 20-25 at a time, in the
public right-of-way, directly in front of the synagogue, in violation of Ann
Arbor’s sign ordinance, which the City of Ann Arbor never enforced against
them for over 16 years.
I represented two members of the congregation, one of whom was a
Holocaust survivor, in a lawsuit against the protesters in federal court in order
to obtain an injunction which would place reasonable time, place and manner
restrictions on their conduct, a standard form of relief even used against anti-
abortion protesters. Every lawsuit has to allege how the plaintiffs are, or have
been, injured. I alleged that seeing the anti-Semitic signs in front of the
synagogue every Saturday morning for 16 years, as the plaintiffs entered the
synagogue in order to participate in the Sabbath service, caused them extreme
emotional distress, a standard form of injury in thousands of lawsuits. The
federal judge, who was African-American, dismissed the lawsuit on the basis
that the emotional distress of the plaintiffs did not constitute a sufficient
concrete injury to give them standing to sue. This was a ridiculous decision.
On appeal to the 6 th Circuit Court of Appeals, the Court, in a 2-1 decision
reversed the ruling that the emotional distress did not constitute a concrete
injury, the plaintiffs therefore did have standing to sue. The Court proceeded to
hold, however, that the messages on the signs used by the protesters were
protected by the 1 st Amendment. I filed a petition for certiorari in the S. Ct., in
which I argued that hate speech in proximity to any house of worship,
regardless the religion, should not be protected by the 1 st Amendment. The Ku
Klux Klan, for example, should not be allowed to picket in front of a
predominantly African-American church every Sunday morning with signs
using the N…. word. The S. Ct. denied the petition. (Denial of a petition is not
a ruling on the merits – it does not mean that the S. Ct. is affirming the decision
of the lower court or agrees with it. It just means they decided not to address
it.)
While the petition was pending in the S. Ct., the protesters filed a motion
for attorney fees in the federal district court, before the same African-American
judge. In order to obtain attorney fees in this kind of a lawsuit – a lawsuit
intended to protect the civil and constitutional rights of the plaintiffs – the
defendants have to prove that the lawsuit was frivolous and had absolutely no
merit. I thought this was impossible to prove – how could a lawsuit seeking an
injunction against anti-Semitic speech in front of a synagogue for 16 years, now
increased to 18 years, be frivolous. Well, to my astonishment and disbelief, the
federal judge ruled that the lawsuit was frivolous – this is the language which
Mulvaney refers to. She awarded the protesters $158,000, to be paid by me,
and my two Jewish clients, one of whom was a Holocaust survivor (she has
since passed away). She essentially ordered a Holocaust survivor to pay
$158,000 to a group of anti-Semitic, Holocaust denying neo-Nazis. To my
further disgust, the 6 th Circuit Court of Appeals affirmed the decision. That is
the decision which I am seeking to overturn with the petition for certiorari
which I attached to my prior email.
Mulvaney’s use of this case to smear my reputation is despicable. I am
so sick and tired of all this bullshit.
Marc
********
[The following electronic letter was written by Marc Susselman as an addition to the previous correspondence by Marc Susselman. It was posted by ML because of the importance of its condemnation of the widespread erroneous belief that if we leftists continue on with the same status quo “thinking”, that Trump will miraculously go away and/or will not win the Republican Nomination for POTUS this upcoming July 15-18 of 2024.]
Michael, s. wallerstein, and David,
I notice that the comments under Michael’s comment that my analysis of the indictment has been posted on his blog has remained unchanged at 8, following Michael’s compliment of me. This means either (1) no one has bothered to look at Michael’s blog to see what I wrote; or (2) some have looked at it and are reluctant to express what they think. If (1), isn’t that what is referred to as ostrich behavior of sticking one’s head in the sand in order to avoid seeing what one does not want to see?
Reflecting on this phenomenon, this irony has come to mind. The blog is administered by an eminent philosopher, and is read by other professors of philosophy, all of whom are familiar with the writings of David Hume, many of whom – including Prof. Wolff – regard Hume as a great thinker, despite his rather unconventional views. When Hume was writing his philosophical works expressing his critique of the proof by induction and questioned the validity of such common notions as causation, multitudes of his contemporaries scoffed and mocked his views as ridiculous, including Samuel Johnson. The idea of questioning the validity of causation, which played a major role in the analysis of Isaac Newton and others, was regarded as ludicrous. However, Immanuel Kant did not regard them as ludicrous, and in fact was inspired by Hume’s writings to write his Critique of Pure Reason, which Prof. Wolff has devoted his life to explaining to the world. Now, does it follow from the fact that multitudes of people regarded Hume’s propositions as ludicrous and contrary to common sense mean that Hume could not himself have possibly believed what he had written, and therefore must have been lying? Of course not. Now, I would acknowledge that Donald Trump is not a literate man, and probably has never heard of David Hume, let alone read him, but why would it follow that because Donald Trump claims to believe something – that there are ballots which were cast in his favor, but which have not been counted because they have been overlooked, or hidden, or perhaps destroyed – that since millions of other people do not believe this, and have rejected it as ridiculous, including several of his own advisers, including former Attorney General Barr, that it is not possible for him to actually believe this, and therefore he must be lying, and that Jack Smith can prove this simply by having people testify that they told Trump that his belief was nonsense? If this thinking does not apply to the writing of David Hume, why should it apply to Trump’s avowed beliefs?
This whole controversy does not speak well of the academics, thoughtful and discerning men all, including philosophers, who have commented on Wolff’s blog and attacked my assertion that Jack Smith cannot prove that Trump is lying unless he has a witness who will testify, unequivocally, that Trump told him/her that he knew he had lost, and that there were not sufficient missing ballots in his favor for him to have actually won the election. They are unable to apply their own reasoning about philosophers past, such as David Hume, to contemporary events. And this does not speak well of the philosophy discipline itself. Many individuals would question the purpose of philosophy as impractical – as my parents did when I told them I had switched my major from Chemistry to Philosophy, as they exclaimed with chagrin and disappointment, “How are you going to make a living as a philosopher?’ Here was an opportunity for Prof. Wolff and his colleagues to demonstrate the practical application of philosophy to current events, and they blew it.
Post-script to my last email:
… and they blew it. Why? Because they are all the victims of Group Think and confirmation bias – the same dysfunction which they attribute to Trump’s maniacal supporters. And why are they the victims of Group Think – because they are so consumed by their hatred of Trump that they want to believe, need to believe, that Jack Smith has Trump dead to rights, and have suspended their ability to think critically. But Jack Smith does not have Trump dead to rights, and with good defense lawyering they will be able to get Trump off, either at trial or on appeal. Smith’s indictment is a shabby piece of prosecutorial lawyering, and the only thing which will save his indictment at the trial level is the likely bias of the trial judge against Trump. But if he is convicted, the conviction will likely be overturned on appeal.
So, by filing this shabby indictment, Smith has put our country into greater danger which will only enhance Trump’s prospects of defeating Biden and being re-elected, resulting in the obliteration of our democracy as we know it.
I have indicated that I in fact supported Trump’s prosecution. But not on the bases which Smith has included in his flimsy indictment. What I expected him to do, and what he should have done, was indict Trump on one count – inciting an insurrection to overturn a legitimate election, which constitutes treason, an unquestionable criminal act against the United States government – unlike the criminal statutes which Smith has cited in the indictment, statutes which Trump has not violated: (1) the certification proceeding in the House of Representatives did not constitute an “official proceeding” under 18 U.S.C. § 1512, because that provision only applies to proceedings in court, and the House of Representatives is not a court; (2) he did not violate 18 U.S.C. § 371, even if he was involved in some scheme to send false electors to Washington, because under the Constitution the electors are selected by the states, under state law, and violating state laws, regardless the number of states, does not constitute a violation of federal law, or an offense against the United States government; (3) he did not violate 18 U.S.C. § 241, because this statute, which was enacted in order to prosecute members of the KKK, requires a much higher level of intimidation then simply verbally pressuring someone, i.e,, Mike Pence, to violate the law and insulting him by calling him “too honest.”
Why didn’t Smith indict him for inciting the insurrection? Because he was concerned about proving causation. But he had thousands of witnesses he could have called to prove causation – all the protesters who were arrested and convicted of trespassing and destroying public property who testified that they went to Washington on Trump’s bidding and encouragement. Which was better – charging Trump with violating laws he did not violate, and claiming he can prove Trump’s state of mind, when he cannot if he does not have a witness to testify that Trump admitted he was lying? Or charging Trump with something which is an undeniable crime, regardless Trump’s state of mind – inciting an insurrection against the United States – which is provable by the testimony of the very protesters who showed up to participate in the insurrection?
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The End.