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Liz Cheney

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Rep. Liz Cheney delivered two clear warnings during last week's House Select Committee hearings. One was to Donald Trump aides and allies who conspired with him to violently overthrow our government. The second was to those who merely observed these crimes but refuse to tell what they know.

The first message: the game is up because the J6 committee has the goods on Trump’s conspiracy, the coverup and the witness tampering so it’s time to either rat out Donald to save your own skin or give up any hope of leniency when indictments are handed out.

The second message: there’s no legitimate public reason to hold back information if you were a bystander, an observer, but if you do nothing your reputation will be trashed, you will be forever branded a coward and you just might get indicted for failure to report traitorous conduct, itself a crime called misprision of a felony.


The only issue is how to frame the case against Trump and his co-conspirators. As prosecutors often say, you file the case you can win, not the case you want to file.

Cheney didn’t say any of those specifics. She didn’t have to because while the significance of her words and actions may have flown over the heads of most people the lawyers got it loud and clear to criminal defense lawyers representing both the conspirators and the bystanders. The lawyers could be as drunk as Rudy Giuliani and they would still get the messages.

Cheney, that rare Republican who has not surrendered her soul to Trump, put two messages on a big screen at the end of Tuesday’s hearing. The texts showed witness tampering, something Trump has done all his life as the late great Wayne Barrett documented three decades ago.

The terrifying part for conspirators who still cling to Donald was that no names were shown on the big screen, a move sure to spread paranoia and suspicion among the conspirators.

Conspiracy law is designed to help law enforcement drive a wedge between criminals. Criminal defense lawyers are for sure asking their clients this question: Which do you prefer, prison for you or for Donald?

In the cold calculus of criminal law, conspirators who get to prosecutors first with solid evidence and who come clean, really clean, may be able to cut deals saving them from much if any prison time. Even if they can’t avoid prison, they may be able to negotiate agreements on how long and where they will serve their time.

Witness tampering is a charge that prosecutors love to include in a conspiracy case because it shows mens rea – criminal intent. If you are actualoly innocent why would you try to prevent witnesses from telling the truth, the whole truth and nothing but the truth?

No Going Back

For some of Trump’s traitors it’s too late. Like Dante, they stare at the sign above the gates of Hell: abandon hope all ye who enter here. Among those are Giuliani and Mike Flynn, the disgraced general who was on at least two Kremlin-connected payrolls, one direct, the other surreptious.

During a video deposition, snippets of which were played at the Tuesday hearing, Cheney asked Flynn an anodyne question that any loyal American immediately would answer with one word: Yes.

Cheney asked Flynn if he supported the peaceful transition of power from one administration to the next. Flynn exercised his Fifth Amendment right against self-incrimination.

Flynn’s response, his lawyer at his side, makes perfect sense only if you are a traitor who participated in Trump’s failed coup d’état.

But for others who conspired, or watched and failed to act, there is still hope.

A legal tool can be used to persuade those foolishly loyal to Trump to tell the truth even if all they did was observe the coup plotting and execution of that incompetent but still dangerous attempt to overthrow our democracy.

Title 18 Section 4, known as misprision of a felony, provides that “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under ther United States shall be fined under this title or imprisoned not more than three years, or both.

Misprision—note the third “i” in that word—means “the deliberate concealment of one’s knowledge of a treasonable act or a felony.” That’s what a coup is: treason. But there are many other crimes that the Justice Department can file against the Trump conspirators.

The Only Issue

The issue before Attorney General Merrick Garland, thanks to work his people should have done but that the J6 committee did instead, is no longer whether there is a criminal case to be made against Donald Trump. The issue isn’t even, as some former federal prosecutors keep saying, whether Trump should be indicted.

The only issue is how to frame the case against Trump and his co-conspirators. As prosecutors often say, you file the case you can win, not the case you want to file.

Part of that framing is how to break up the conspiracy; how to get the rats to turn on each other.

Its clear from search warrant affidavits and subpoenas that Garland has an active criminal investigation or multiple investigations underway.

The real question how is how far flung will the indictments be and will our Justice Department bring a clear, simple and direct case against the man who would be our dictator.

Reprinted with permission from DC Report.

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