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  How to Drain Trump’s Corruption Pool

  
  Greg Sargent did a story yesterday promising the dismissal of Davey Hearn’s charges last Friday, “is not the final chapter in this story—not by a long shot” and laying out how whether we can get accountability for those malicious charges, “will help settle whether we are capable of dispensing real justice to all those Trump accomplices who are helping make our slide into authoritarianism possible.” (As I have been working on this post, WSJ reports that Trump is pressuring DOJ to find a new way to charge Hearn.)

  Sargent is an engaging writer who lays out the stakes, and the story was well-received. But while I agree with his frame — Hearn’s case is that important — in my opinion Sargent lays out an entirely inadequate map to accountability. I responded badly to that, and for that I apologize.

  In hopes of being more constructive I want to lay out where I believe Sargent was wrong and what he’s missing about the task ahead. But I also point to other things we can do, we need to do, now, and if we don’t, this inquiry will suffer the same fate as the Russian investigation, impeachment 1, impeachment 2, and January 6 generally. We cannot sit around and wait for six months in hopes that Raskin gets subpoena power while Trump stokes personalized opposition to Hearn, because that is not the only or even the best route to accountability.

  The House Judiciary Committee will not avenge Davey Hearn

  Start with his notion that justice for Hearn is most likely to come from Jamie Raskin’s promised investigation (update, here’s Raskin’s letter, which makes current demands). The focus on what Jamie Raskin plans to do six months from now if Democrats win the House takes up 295 words, 23% of Sargent’s story, and holds place of privilege at the start and end of the story.

  The focus on Davey’s remaining legal fight (just in his criminal case), which is sandwiched between coverage of Raskin, took up 236 words, 18% of the total article. Over half of that focuses on quotes from an expert who offers no specific comment about the posture of this case or the reputation of this judge or the prosecutors. That’s a journalistic convention, even among journalists who cover the law full time. But the space could have better been used describing more about what’s in the public court docket or even providing further description from Norm Eisen about the proof they have that Jeanine Pirro knew Davey Hearn didn’t do the damage she accused him of. As I’ll show, Sargent seems unaware of stuff that’s in the docket, of some questions that have been answered and other questions that are posed there, of what transparency may be possible from it. Similarly, he seems unaware of the different strengths and weaknesses of the tools of accountably.

  As for Congress, for example, Sargent promises that “Subpoena power would help fumigate all this” and envisions “put[ting] Pirro and Burgum under oath and tak[ing] them apart.” It’s as if Sargent doesn’t remember how little Dems could do with subpoena power back in 2019, even under an impeachment inquiry, to say nothing of the stone-walling the January 6 Committee faced in 2021 and 2022. Since that time, Trump has added to his bag of tricks, invoking Trump v. US in a bid to cover up Aakash Singh’s role in a similarly fraudulent prosecution last week, and having OLC expand executive power to cover Boris Epshteyn this week — an expansion that would have protect Steve Bannon from his 2021 J6C subpoena.

  Similarly, Sargent tells Congressional Dems to assure potential whistleblowers that “Democrats will have their back.” How’d that work out for the main Ukraine impeachment whistleblower? For the Vindmans? For Cassidy Hutchinson? Democrats have been able to use whistleblower information to good effect already this Trump term. But journalists have had a better record of protecting whistleblowers than Congress, and Democrats need to learn how better to protect these people.

  Congress has certain tools, including appropriations and impeachment, and some of their tools, including subpoenas, will work better with other targets (like the law firms Trump has politicized or the media companies he bribed). There are even questions specific to this case, such as how Pirro is staffing her office (which is split between Superior and District Court) and how she’s paying lawyers that Raskin could pursue right now. But dumping your hopes on Congress — six months in the future, and only if Dems with the House!!! — ignores the lessons of 2019 and 2020 and 2021 and 2022, to say nothing of the tools Trump has rolled out since (or been gifted by a far right SCOTUS) to defy or at least delay Congress.

  It is far more important for Raskin to game out how he’ll thwart this obstruction than it is to map out an investigation into the Hearn case.

  I’m not saying that Raskin’s letter — or Sargent’s coverage of it — harms the case. At the very least, when Pirro refuses his request, it’s a good way to generate scandal.

  I am saying that we need to have a realistic discussion about what tools are best suited to this task.

  What we’ve gotten and what we may get

  Meanwhile, Sargent does the same thing that happened with the Jack Smith case, where some of the most prominent commentators (including HJC member Dan Goldman) proved to be unaware of what was made public by the prosecution; Sargent is promising future disclosures but showing little curiosity about what’s already public, much less playing a role in doing anything to magnify that information.

  To Sargent’s credit, he treats Pirro’s scapegoating of Interior in her Motion to Dismiss with the skepticism that most outlets have not. He links a news report about the first, but not the second, disclosure about the grand jury proceedings. But that’s about it. There’s a good deal more about the investigation in the filings that are far more pressing to expose than Raskin’s plans six months down the line (if Democrats win).

  They include:

  • There are two main witnesses who implicated Davey Hearn: a female Parks Service employee who claims he told her she was “awfully sensitive about the pool,” and Emily Miller, the right wing propagandist who captured his arrest and claimed to talk to Pirro’s people about the case; Miller may be a witness mentioned in the arrest affidavit (she blocked me when I asked if she was on Xitter).
  • That woman from the Parks Service did not testify to the grand jury and the investigative witness who did (MF) emphasized that her testimony “was not a sworn statement.” She’s the source of the claim that Hearn “violently” ripped at the pool liner.
  • There are two photographs, one posted publicly by Hearn before he was charged, and another taken by a government employee, both of which show the damage was already done before Hearn reached his hand into the water.
  • With regards to Hearn’s photo: the government did not present it to the grand jury (which is not a clearcut abuse) but also did not mention it in an affidavit to seize his phone (which is).
  • With regards to the other photo, the government seems to have claimed that the female Parks Service employee took it and obscured when it was taken; Pirro’s MTD corrects the timing and attributes the photo to another government employee. The government refused to provide Hearn with metadata to prove this before they dismissed the case.
  • There is CCTV footage that should have been turned over to Hearn that was not — footage that was shared with Jesse Watters so he could do propaganda to support Trump’s claims of sabotage. It almost certainly would debunk the entirety the Parks Service employee testimony.
  • Even if we buy Pirro’s suspect claims about what Interior turned over when or her claimed ignorance about the problems with the pool before that, we know she had notice of the problems with the pool well before July 16 or 17, when she claims DOJ discovered the problems for the first time. DOJ knew of a damage assessment Interior did — which included a map of many different sites of damage — no later than July 10 (when she turned over the report to Hearn). And investigative agents were at the pool on July 13, three or four days earlier than Pirro let on in her report.
  • The harms witness (MR) testified to the grand jury twice. The first time he described tons of pre-existing damage and said it would not be possible to isolate the damage attributed to Hearn. The second time (21 minutes later), he claimed he could attribute $1,000 of damage to Hearn. The prosecutor who sent MR back into the grand jury to give conflicting testimony — he said “Hopefully that kind of nailed down that specific question” to the grand jury after MR changed his story —  is probably the prosecutor most responsible for the abuses in the prosecution.

  In other words, we have a pretty good sense of how Hearn was indicted, one of the questions Sargent hopes Raskin will answer: An unreliable Parks Service employee made suspect claims about Hearn, which were presented via an investigative witness, not under oath. DOJ covered up the photographic evidence they had (or Hearn had taken) that the pool was damaged before he got there. And their harms witness was sent back to the grand jury to give testimony that arguably conflicted with what he had given 21 minutes earlier so they could meet a crucial element of the felony offense.

  That’s what we already know. As Sargent noted, Hearn is still demanding grand jury testimony. For the reasons I laid out in this post, Judge Todd Edelman seems far more amenable to the request than Sargent’s expert lays out. For example, Sargent notes that Norm Eisen can still pursue this largely because Pirro moved to dismiss the case without prejudice, and that’s true. But Edelman could have just dismissed it with prejudice after Hearn responded to the government MTD. He did not, retaining jurisdiction to grant that grand jury transcripts motion or more. So the judge — not Pirro — is responsible for leaving that option and others on the table. Indeed, Edelman already said he’ll hold a hearing where we should expect DOJ witnesses to go on the record on risk of sanctions about what happened. Some of the questions Raskin wants to ask — in six months time, if Democrats win — are likely to be aired at this hearing, and if the prosecutor abused his ethics to get the indictment, Judge Edelman has more ability to get recourse than Congress does.

  Even if Edelman denies that motion, though, if he relies on any of the things Hearn has already submitted as sealed exhibits, we will have reason to demand it under First Amendment precedent. Those exhibits include:

  • The affidavit for Hearn’s phone (making a false claim about who took the Park Service’s before picture and making no mention of his picture).
  • The initial excerpts of grand jury testimony (reflecting that the pool was already leaking millions of gallons of water and had already been damaged), and also reflecting the testimonial witness’ squeamishness about the Parks Service witnesses claims.
  • The follow-up excerpts, in which the prosecutor delivered up altered testimony and closed down discussion.
  • The damage report, dated June 30.

  Davey Hearn’s case is really a remarkable instance where someone has superb criminal defense attorneys (don’t forget that one of the key January 6 prosecutors, Mary Dohrmann, is representing him), but also someone like Eisen, who not only knows how to work the press, but who has been instrumental in suing Trump for accountability.

  Barring discovery violations, criminal defendants have the ability to get information that Congress will have to fight to get, which is likely why this case was dropped. But Eisen’s involvement ensures that there will be follow-up lawsuits where Hearn will also be differently postured than Congress.

  Stop the bleeding

  The reason why it’s utterly crucial that people like Sargent learn these details and use them now is because the first thing we need to do to get accountability is to undercut Trump’s propaganda designed not only to prevent that, but to extract revenge for even asking for it.

  Consider this very sophisticated piece of propaganda Trump posted on Sunday.

  

  Not included in this post, but another tack he’s already using, is to attack the judge, Todd Edelman.

  Hopefully my annotations make it clear how Trump’s post works — most notably, how Trump is trying to change the meaning of the linked document (Pirro’s MTD) and resuscitate the credibility of the Parks Service accuser.

  Trump’s trolls responded. Just as one example, Libs of TikTok did what she does; triggering grievance with her attentional device — “HOLY CRAP” — (over 300K views when I screen capped it, which is monetized), expanding the ActBlue conspiracy beyond what Trump claimed, then dehumanizing her targets, techniques which have long shown to lead to stochastic terrorism.

  

  I was actually mildly surprised at how much pushback Libs got after posting this, with people pointing out she was dumb as shit for repeating Trump’s lies. She moved onto stoking other conspiracies.

  I can’t solve far right stochastic terrorism in this post. But in pushing back against it, it’s important to understand and hook on Trump’s new lies here, because it’s the only way to short circuit the propaganda campaigns of the like that Trump has always used to defy oversight. Trump’s post attempts to reframe Pirro’s motion to dismiss by highlighting the part he likes — the testimony of the female Parks Services employee who accused Hearn. As laid out above, we already have reason to suspect she falsely accused Hearn.

  Participatory messaging

  The most important thing lefty pundits need to understand is how that media economy from Trump to Libs to death threats against Hearn and the judge works and find a way to undercut it. This page has a good description of how that works. But the dynamic is that, while Trump is a key source of disinformation, there are people like Libs making shit tons of money to do things like make unsubstantiated claims about Hearn’s ties to ActBlue and dehumanize him, with predictable effects.

  

  I’m not asking the left to lie or get on Xitter to monetize incitement or anything like that.

  I am asking the left to understand that this is the engine via which Trump survives every single attempt at accountability, and even if Raskin had more tools awaiting him, until we address this media economy, Trump will continue to escape accountability. Every single time we make comments about what Trump is doing, we have a choice: Do we act like we have the ability to do what the far right is doing? Or do we outsource the work to people like Jamie Raskin?

  Map the structure and find surface area

  I also urge people (as people like Norm Eisen already have) about various directions to go at this problem, because some of them will show more immediate payoff than waiting 6 months for Raskin to get subpoena power, maybe.

  Some of the other ways people are contesting the reflecting pool are:

  WaPo’s very good and persistent coverage of this issue

  Leaks from whistleblowers about Doug Burgum’s corruption

  Scott MacFarlane’s report on the diversion of National Park dollars to Trump’s vanity projects

  A shadow hearing by Robert Garcia and Richard Blumenthal on Trump’s “vanity” projects, generally (I was not aware of this in real time, though Meidas Touch did post it

  Jared Huffman’s oversight (the ranking member on the Natural Resources Committee, who would have jurisdiction), including his opposition to a 2025 flunky being installed as Inspector General

  But there are other points of leverage, any one of which might pull loose new threads:

  • Emily Miller’s role in this
  • Pirro’s choice to use DC Superior Courts, her $25,000 retention payments to AUSAs, and the use of JAG and ICE lawyers as prosecutors in DC Superior (though not in this case)
  • Will Sharf — whom Trump just named to succeed David Warrngton as White House Counsel —  and his role on the National Capital Planning Commission

  We are in a fight for our lives. And the last thing we should do is sit back and assume Jamie Raskin will fix things … if we’re lucky enough to have a fair election and manage to win one or both houses of Congress. Especially when there are far more effective means of accountability we can pursue right now.

  The post How to Drain Trump’s Corruption Pool appeared first on emptywheel.

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