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Trump, Santos and our calamitous-ish political landscape

The dictionary definition of the suffix -ish is “an expression used after a statement to make it less definite.”  

Yip Harburg was so inspired by -ish that he wrote a charming song for the iconic musical “Finian’s Rainbow” entitled “Something Sort of Grandish.”

Thus, it may be said that the latest GOP defendant, Rep. George Santos (N.Y.), who falsely described himself as “Jew-ish,” is a grifter or I should say a grifter-ish, an alleged scammer who has not yet been convicted.

In our country, once someone has been indicted, we assume there is some basis for the indictment but presume the defendant to be innocent.

This presumption of innocence is artificial, an invention of the law. It simply means that the prosecutor in a criminal case has the burden of proving guilt beyond a reasonable doubt, and that burden never shifts. The defendant need not prove a blessed thing. Meanwhile, the defendant is presumed innocent. He may not be innocent. Perhaps he is innocent-ish.

According to the federal indictment, filed the other day in the Eastern District of New York, Santos plain lied when he had a legal obligation to tell the truth. And he lied to get money:

  • He used funds raised for his 2022 congressional race to pay for designer clothes, pay off debts and give money to associates. Like Supreme Court Justice Clarence Thomas, Santos likes to live in style. Who doesn’t?
  • And the alleged fraud gets worse. In 2020, Santos applied for unemployment benefits, even though he was working and receiving an annual salary of $120,000. According to the indictment, Santos falsely claimed every week, stretching into 2021, that he was eligible for unemployment benefits, and received more than $24,000 in those benefits from the state.
  • He lied on congressional financial disclosure forms when he claimed that he earned $750,000 in salary from a firm he owned, had received between $1 million and $5 million in dividends from that firm and had a checking account with a balance of more than $100,000 and a savings account with a balance of more than $1 million. None of those things were true.

The grand jury didn’t throw the book at him. He threw it at himself, all 13 counts-worth of fraud, money laundering, theft of public funds and false statements. Santos can be removed by a two-thirds majority of the House of Representatives. But it’s not going to happen. Speaker Kevin McCarthy (R-Calif.), instead of expressing outrage, said he won’t support Santos’s reelection bid but didn’t demand his resignation.

“Santos has a lot going on,” he said. “I think he has other things to focus on in his life than running for office.” So does Donald Trump. McCarthy surely has the votes to block any ouster. Republicans in Congress need Santos’s vote more than they need even the trappings of integrity.

And, as we all know, a New York jury found that Donald Trump had sexually abused journalist E. Jean Carroll in the 1990s, and then defamed her. The jury awarded Carroll $5 million. It wasn’t rape; he just grabbed her by the privates. It was rape-ish.

Some Trump’s followers said it was all a hoax accomplished by George Soros —conspiracy-ish. And Trump may have made a new defamation of Carroll, belittling her at a CNN  town hall as a “whack job” with a cat named “Vagina.”

Trump’s lawyer, Joe Tacopina, implied he had won the case because the jury rejected Carroll’s claim that Trump had raped her. Trump has appealed the verdict on several grounds. His points on appeal were:

  • Trump could not get a fair trial in New York. Sen. Tommy Tuberville (R-Ala.), a staunch Trump supporter, said that with “a New York jury, he had no chance.” Perhaps Tuberville forgot that Trump sexually assaulted E. Jean in a dressing room at Bergdorf Goodman’s. If he didn’t want accountability in New York, he should have grabbed her in a dressing room at Douka Fashion department store in Birmingham.
  • The case was tried to an anonymous jury. Perhaps Tacopina forgot the instances where Trump or Trump followers had denounced or threatened the judge, the plaintiff and the plaintiff’s lawyers, and that he had warned of death and destruction to New Yorkers after been indicted by Alvin Bragg. In fact, Tacopina did not oppose Judge Lewis Kaplan’s sua sponte proposal to impanel an anonymous jury for the trial.
  • Trump was prejudiced by the evidence of Jessica Leeds and Natasha Stoynoff, both of whom testified that Trump had assaulted them sexually. Their evidence showed a pattern of behavior. Tacopina, a seasoned lawyer, must have forgotten Federal Rule of Evidence 415 allowing the court in a civil case involving an alleged sexual assault to admit evidence that the party committed any other sexual assault. The thought is if one woman says you assaulted her, it is “he said, she said.” If two women say it, maybe yes, maybe no. If three, maybe more likely-ish than not.
  • Evidence insufficient to support the verdict. Trump hung himself in his trainwreck of a deposition. I have taken, defended and used in court many depositions in my career, but I have never seen a deposition of an adverse party so devastating, so riddled with admissions as this one. Trump gave away the store when he asserted that throughout history stars like himself were fortunately able to grab what they wanted from women. What jury would ever buy this? Droit de seigneur went out with the feudal lords.

Will Trump succeed on appeal? I would not put my bitcoins on it. The appellate court after a jury verdict must indulge all inferences in favor of the winning party. Meanwhile, Trump and his supporters fill the internet with a fusillade of lies.

Will he dodge the bullet of the verdict in the court of public opinion? At the CNN town hall in New Hampshire, his supporters sniggered. But, unlike the Bragg indictment and the “raid” on Mar-a-Lago, this one is unlikely to galvanize Trump supporters.

The jury verdict against him in a sex and defamation case is more difficult to spin. Carroll took the stand and was believed. Her testimony was corroborated by two contemporaneous “cry-out” witnesses to whom she confided her account of the attack, and two similar act witnesses whom Trump violated. 

And, most telling, Trump never took the stand to deny it. In a criminal case, we are not permitted to draw any inference from a defendant’s failure to take the stand. But in a civil case, Trump’s silence speaks volumes.

So will House Republicans refuse to oust from their midst a fraudster congressman, a national embarrassment who achieved political power surrounded by a bodyguard of lies?

And are his lies any more reprehensible than the lies of the party’s presidential front-runner, an indicted felon, a proven sex abuser and an insurrectionist who views the legal process as a game, threats of violence as a political weapon, the Russians as pals and democracy as a toy to be played with and discarded when it no longer serves his interest?

As Liz Cheney aptly says: “Donald Trump is a risk America can never take again.” He has proven himself unfit and unworthy of any public office, let alone the high office of the presidency.

The party of Lincoln, Eisenhower, Reagan and Bush is no longer Republican. It has become unmoored, unprincipled-ish.

James D. Zirin is a former federal prosecutor in the Southern District of New York.

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