A Turing Test for Constitutional Democracy
"A coup in search of a legal theory."
Hello, friends,
The January 6th Select Committee have held eight hearings so far and I wanted to review what we have learned. And, before I start, let my preface this: It it my understanding that the Jan 6th Select Committee can ask the Department of Justice to pursue criminal charges against former President Trump, and that is what I am calling for, at a minimum. For the charges that are relevant to this newsletter, the referral would not be legally binding; but it would be powerful and it would be tough for the the DOJ to refuse to do so, once handed the evidence of the Committee which contains 300 interviews and 35,000 documents.
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The Turing test is the name we give to a broad set of challenges, problems, and possibilities in terms of artificial intelligence (AI). If a computer algorithm can convince it’s human interlocator that it is “intelligent,” and therefore, that it has convinced a person that the computer itself is a person or, at least, can mimic one, it is said that the machine has passed the Turing Test. As I follow the Select Committee to Investigate the January 6th Attack on the United States Capitol I keep thinking about this in terms of democracy: are we a real constitutional democracy, or simply a facisimile of one? One that goes through the motions but that doesn’t grasp what a functioning, constitutional, rule-of-law not rule-by-law, actually requires.
The basic test is this: Can the U.S. bring a corrupt and criminal president to justice?
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The basic facts are clear as day: then president Trump, both before, during, and after, the 2020 presidential election spread proveable lies and baseless claims about both state laws that were changed running up to the 2020 election and the overall results. Trump claimed that the election was stolen. He then claimed that Vice President Mike Pence could single-handedly overturn the results based on a not-even-specious, just flat-out-insane reading of the Electoral Count Act of 1887. And it is irrefutable that the January 6th insurrection/riot/attempt to disrupt Congress would not have happened without Trump’s pre-, election day, and post-election day actions and behavior.
Joe Biden won the 2020 presidential election, fair and square, and 60 of the 62 cases Trump and the Republican Party brought to judges claiming otherwise were dismissed for lack of evidence or lack of standing. One judge wrote that the allegations brought to him by Team Trump were built on “strained legal arguments without merit and [was] full of speculative accusations.” Trump had every right to pursue a legal remedy. The problem was there was no evidence for their outrageous claims. The courts ruled against Trump. Over and over again. Nearly every single time.
Team Trump did not care about that. In fact, the crime began earlier than a lot care to remember.
In fact, organizations such as the first Stop the Steal were actually created and registered by Roger Stone in 2016 because Team Trump was ready to say that any election they lost was rigged; democracy be damned. And Trump purposely—with the worst narcissistic intentions imaginable—created and fostered a movement to discredit American democracy - in fact, the president tweeted the word “rigged” 175 times since 2017 with 75 happening from May 2020-January 6, 2021 (Cummings, Garrison, and Sargent 2021). Immediately relevant, Trump attempted to bully and force Georgia’s Republican Secretary of State Brad Raffensperger to “find” enough votes to push Trump over the finish line, a phone call that Raffensperger has since called a “threat” by the president.
We knew most of the moral, politically, and legal evidence needed to bring a criminal case on Trump and his fellow conspirators, most importantly law professor and Trump’s personal legal adviser John Eastman and Rudy Guliani before the Select Committee even started. And a federal court has already ruled that Eastman has to turn over many of his university emails, finding them relevant and not protected under client-attorney privilege. It is worth quoting the ruling by federal District Judge David O. Carter:
“The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections.239 Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.”240 Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this “BOLD,” President Trump knowingly tried to subvert this fundamental principle.
Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”
Like I stated above, this is a basic Democratic Turing Test for our country. Can we protect out democracy, or not? Can the most legally sophisticated country in the world muster the basic strength to press charges against an obvious case of crime? Or, did we have a king who doesn’t have to play by the rules? At a minimum, will the majority of the public care enough to not vote for this man again when he jumps into the 2024 Republican primary?
Everything I’ve seen and read has me convinced that Team Trump, including the former president himself, committed at least 2 crimes: obstruction of an official proceeding; and conspiracy to defraud the United States. A third possible offense “seditious conspiracy” will be harder to bring, according to Neal Katyal, of Georgetown University.
The testimony so far had made this basic point unrefutable: President Trump knew his campign to overturn the 2020 election was built on lies.
The first night of the hearings featured snippets of testimony from the likes of Ivanka Trump, Trump’s daughter and Advisor to the President, and Alex Cannon, a former Trump campaign lawyer. Ivanka accepted what then-Attorney General Bill Barr explained that Trump has lost. “I respect Attorney General Barr. So I accepted what he was saying,” admitted Ivanka. Cannon told Mark Meadows, Trump’s Chief of Staff. that they couldn’t find “anything” to support Trump’s false election claims.
This 4-minute clip HERE is the reference for the words in quotes. It shows Ivanka, Cannon, and Barr all revealing that Trump had the full ability to know that what he was saying was a lie. Barr even called it “crazy stuff” and that this false campaign was “doing a grave disservice to this country.”
And in a not-talked-about-enough auido clip given to Mother Jones, Steve Bannon, once Trump’s chief strategist, laid out Trump’s strategy:
Last night, more damning evidence and testimony was provided, including details on how Trump consistently ignored pleas to directly call out his supporters; refused to call backup law enforcement, highlighted by a powerful statement by the Chairman of the Joint Chiefs of Staff, Gen. Mark Milley: “You’re the commander in chief — you’ve got an assault going on the Capitol of the United States of America and there’s nothing? No call? Nothing? Zero?”
An ABC News/Ipsos poll shows that nearly 60 percent of Americans believe Trump should be held responsible - because he is responsible - for January 6th. More recently, 50 percent of Americans believe that “Trump Should be charged with crimes” (PBS/NPR/Marist) including 20 percent of self-identified Republicans.
Count me in.
The Marist/PBS poll also found that only 28 percent believe that Trump will be charged. This is a Turing Test for Democracy.
Will we pass the test?
- Patrick M. Foran