Former U.S. President Donald Trump speaks at a rally at The Farm at 95 on April 9 in Selma, North Carolina.Allison Joyce/Getty Images
Last week, ABC Newsreportedthat John Eastman—the former Trump attorney at the center of the plot to overturn the 2020 election—was still at it. Indeed,videofrom a closed-door event in March showed Eastman rousing a crowd to pressure Wisconsin legislators to decertify the state’s 2020 election results.
“If they’re not going to exercise [that power], then we need to find people who will,” Eastman told the crowd.
Eastman does not appear at all chastened by the threat of legal consequences for his actions. Among the ringleaders of the attempted 2020 coup, this cavalier attitude is not unusual. Steve Bannon, for instance, hasspent recent months helping to organizehundreds of fellow coup supporters to take over local election apparatuses ahead of the 2024 election, despite being under indictment for contempt of Congress. Otherleadersin Trump’s coup attempt, like former Roger Stone associate Jason Sullivan,continuetopushthe Big Lie andthreatenviolence against political opponents.
And then, of course, there’s the former president himself, who New York Times reporter Maggie Habermansaidlast week “is running” for president in 2024 “barring a significant change.” Trump continues to send outweekly missivesagainst “cowards” and “many Republican leaders who didn’t act” to overturn the election, signaling another coup attempt would be on the table in 2024.
Ultimately, the various prosecutors investigating the former president have done nothing to demotivate Trump and his supporters from continuing their assault on democracy. Those investigators, in various ways and to various degrees, seem to be dithering in deciding whether or not to prosecute Trump and his top allies. Those investigations include the Department of Justice teamlooking intoJan. 6, 2021; New York Attorney General Tish James’civil probeof Trump’s business; Manhattan District Attorney Alvin Bragg’scriminal investigationof Trump’s business; Fulton County District Attorney Fani Willis’criminal investigationof Trump’s efforts to subvert the election in Georgia; and Westchester District Attorney Mimi Rocah’scriminal investigationof the Trump Organization’s Westchester golf course.
Trump has yet to be charged for possible crimes in these cases, and those in his inner circle seem to be comfortable continuing potentially criminal behavior. What then is the endgame for all of these prosecutors? What strategic choices might they be making? And what might the thinking be behind their decisions?
I talked through these questions with former presidential investigators and a defense attorney for a former vice president. Together we came up with five potential options for these prosecutors. None is good. But it’s clear doing nothing might be the worst option of all.
Option 1: Let Trump Off the Hook
This is the route some fear investigators have been taking since Trump left office. Another name for this approach might be the “Chickenshit Club” strategy. The term was coined after James Comeyadmonishedprosecutors in the U.S. Attorney’s Office for the Southern District of New York for only taking less high-profile cases that they felt certain they were going to win.
What is the strategic thinking behind being a member of the “Chickenshit Club”? There is a legitimate concern that if the Department of Justice goes ahead with a prosecution now—however righteous—a future DOJ might abuse that precedent to go after a corrupt future president’s political enemies without any real basis. “One of the things that’s holding [Attorney General Merrick] Garland back is the fear that we don’t want to be seen as one of those republics where as soon as you have a new government, you go ahead and indict everybody in the old government,” said Martin London, former Vice President Spiro Agnew’s onetime defense attorney.
Another fear would be that prosecuting Trump for his conduct leading up to Jan. 6 could unleash more political disruption, and even potentially violence, or at least be to Trump’s political benefit in a future campaign. “If you indict Trump, you run the risk of having a sort of major revolt” among his supporters, argued David M. Dorsen, a former assistant U.S. attorney in the Southern District of New York and assistant chief counsel of the Senate Watergate Committee.
There is also a legitimate fear that if you go after “the king” and you miss—say, with an acquittal or a hung jury—the consequences could be more disastrous than doing nothing at all.
Since so many different prosecutors are looking into Trump, there could also be a hope among these different offices that another investigator will be the one to bite the bullet and go first. When he was working for legendary New York prosecutor Robert Morgenthau, Dorsen says, members of the U.S. attorney’s office would fight to grab high-profile cases. That does not appear to be the case this time: “Here, everybody is saying, ‘After you.’ ”
Option 2: Only Pursue Trump in Civil Court
One variation of the “Chickenshit Club” route would be for criminal prosecutors to wait until James files civil charges and let that case—along withpreviously filed tax fraud chargesagainst the Trump Organization—be the final word.
“It remains unclear whether Donald Trump will be charged criminally, but I would fully expect there to be a civil enforcement action by the New York attorney general against him and the Trump Organization that may severely cripple the Trump Organization and potentially put it out of business,” said Daniel Goldman, the chief counsel for House investigators in Donald Trump’s first impeachment and a former assistant U.S. attorney in the Southern District of New York. “I expect there to be some accountability on that conduct related to his personal business matters.”
The hypothetical benefit of the civil approach is that it would at least offer some financial accountability for Trump without the potential downsides of criminal action. In addition to those mentioned above in option one, these downsides include a higher burden of proof. If Bragg were to pursue criminal charges against Trump on the same evidence as James, for instance, he’d have to prove that Trump had criminal intent in deceiving investors about the valuations of his properties, that he knew those valuations were wrong, and that this criminal conduct caused a loss to someone else. James’ standard would be lower. (That higher burden of proof, it should be said,doesn’t meanthat the Manhattan DA has no case.)
While James has already compiled and made publicvast amounts of evidence, simple financial accountability for Trump is far from a given. Because the Trump Organization is a privately held company that is backed largely by asingle bank, a true reckoning could be hard to come by no matter the evidence. If Trump’s backers refuse to abandon him, there’s only so much James might be able to do to punish his business for financial crimes.
It must also be said that Trump has over the course of six different decadessurvived hundreds and hundredsof civil actions with his businesses still intact.
Option 3: Charge Donald Trump in Criminal Court
It’s possible that these prosecutors only appear to be holding back, but are actually taking the time they need to get all of their ducks in a row. Under this premise, investigators are not letting Trump off the hook but nailing down an airtight case against him and those who perpetrated Jan. 6, starting from the bottom up. “Charging 770-plus defendants is the largest case in history of the DOJ, and it is a herculean task to prosecute that number of cases,” said Goldman. “It was imperative for the department to prosecute and get off the street the people that were engaged in this violent behavior.”
Recent reportingindicates that, whatever the reason for the delay, prosecutors are finally turning their eyes toward the ringleaders of Jan. 6. As the New York Times reported last month, prosecutors have “substantially widened” the probe beyond just those who invaded the Capitol.
Trump being held criminally accountable for his role in the attempted insurrection and coup would have the strategic upside of defending, preserving, and upholding the rule of law even if it runs the risk of further political turmoil. Under this line of argument, handing Trump or anyone else who threatens democracy a Get Out of Jail Free card because he’s politically powerful would just be inviting more coups. Eventually, one might succeed. “I think the only real hope for maintaining our democracy is maintaining the rule of law,” Goldman said.
If prosecutors are thinking similarly, it’s possible that delays can be chalked up to budgetary constraints and the wide-ranging nature of the investigations.
Option 4: The Spiro Agnew Deal
Perhaps the least likely of all of the options would be for prosecutors to offer Trump a plea deal. Such a deal, if Trump accepts, could, hypothetically, result in no jail time for the former president. Consider that former Vice President Spiro Agnew pleaded “no contest” to one count of tax evasion and agreed to resign from office. Under such a similar deal, Trump could agree to never run for office again and receive no jail time.
There are many problems with this approach. For starters, there would be no way to hold Trump to the deal. Dorsen notes, “If Trump pleads no contest and he agrees never to run for office, and if he runs for office anyway, what’s going to happen?” Different courts in different states might reach different determinations about whether he could be on the ballot. In other words, there would be chaos.
London, who negotiated the deal for Agnew, also said such a Trump deal would be a “steep uphill climb” for a number of reasons. Critically, Agnew was already in office and had a very real chance of being elevated to president despite a looming indictment for bribery and tax fraud, because President Richard Nixon was himself embroiled in Watergate. “This was all happening during Watergate and Nixon was hanging on by his fingernails, and the notion that Nixon could go and that Agnew would then be the president was something that the Department of Justice and [Attorney General] Elliot Richardson just couldn’t tolerate,” London said.
In the current scenario, Trump isn’t even in office anymore, so why give him such a sweetheart deal? “That was a once-in-a-lifetime, once-in-several-lifetimes deal, because there were unique circumstances,” London reiterated about the Agnew situation. “I don’t see how you could bring that to bear against Trump.”
Option 5: The Ambiguous Threat
One final possibility that no prosecutor will ever admit to is this: holding the threat of prosecution over Trump’s head in the hopes that he doesn’t run for office. The implication of this move is that if he decides to go forward with a 2024 candidacy, then he will face prosecution, and if he doesn’t, then he won’t. This idea has some intuitive appeal: It theoretically keeps Trump from threatening our democracy again, and it doesn’t put the country through the turmoil of sending a former president with a wide base of support to prison. But there are a number of problems with this approach.
The first is, how do you communicate and enforce such a deal? Delaying investigations for months into 2023—as appears to be the case—when Republican primary candidates will be deciding whether to run, could serve the purposes of an implicit threat. But eventually prosecutors will have to say what their intentions are. The second they announce either way, Trump could decide to run.
If Trump does announce a run before a prosecutorial decision is made, and investigators turn around and announce a criminal prosecution, Trump will use any delayed case as evidence of corruption. “A second-chance indictment [announced after a candidacy is declared] will be seen as a purely political thing, and I think it will backfire and hurt the Democrats,” London said. “You can’t indict this guy at the last minute. If you do, it’s going to be a foul odor.”
Further, the threat hanging over his head could actually serve the opposite purpose, motivating Trump to run for office as a public shield against charges, which would allow him to claim any prosecution is part of a long-running witch hunt against him politically. “I think part of the reason he’s thinking of running is he thinks that will help him avoid accountability,” Goldman said. Ultimately, trying to scare somebody like Trump into doing what may be in his best interests—quietly cashing in his chips and going away in order to avoid the risk of jail time—is impossible. The smartest outcome might ultimately be to simply enforce the law and file charges if they are warranted, no matter what the possible political cost.
Ryan Devereaux/The InterceptView of the Patagonia Mountains from the Borderlands Wildlife Preserve in Patagonia, Ariz., on June 20, 2023. (photo: Molly Peters/The Intercept)
09 july 23
Biden Fast-Tracked a Green Energy Mine in One of Earth’s Rarest Ecosystems. Arizona Locals Took It to Court.
Carolyn Shafer spread the maps out on her patio table. Another sun-dappled Saturday morning under her backyard trees in the picturesque border town of Patagonia, Arizona. Shafer wasn’t relaxing though. She was getting to work.
Birds chirped as the 76-year-old traced the 75,000 acres of mining claims on the edge of her community with her finger. She wore a black T-shirt emblazoned with a fearsome wolf hovering above a rugged mountain range. The wolf is the calling card of the Patagonia Area Resource Alliance, or PARA. The local group monitors industrialized mining in the Patagonia Mountains, one of the most biodiverse places on Earth. Schafer is president of the board.
“This is our new logo,” she said, picking up a pamphlet with the wolf on the front. The old mascot — a cute cartoon dog — no longer matched the moment. A vigilant pack animal sent a more appropriate message.
“We think of ourselves as local watchdogs,” Schafer told me. “We pay attention to what’s going on with the companies and the agencies, and then we bark really loudly to the big dogs, who have the staff, the knowledge, and the experience to do what is necessary.”
The big dogs, Shafer and her allies believe, are needed now more than ever. Last month, the Biden administration announced the “first-ever” inclusion of a mine in a federal program that expedites permitting for high-priority projects. In this case, it was the extraction of minerals from the Patagonia Mountains to support the president’s green energy agenda — manganese and zinc, specifically, for producing electric vehicle batteries and fortifying renewable energy installations, among other purposes. In the weeks since the announcement, the Forest Service has issued permits advancing large-scale drilling in the area.
The operation is the Hermosa project, which encroaches on the Coronado National Forest, an hour southeast of Tucson. The company is South32, an Australian spin-off from global mining giant, BHP Billiton. The program, FAST-41, was created in 2015 to streamline the federal permitting process. The Permitting Council, an agency with a nearly $100 billion portfolio in government infrastructure projects, oversees the program.
The administration’s support for the mine follows President Joe Biden’s 2022 determination invoking the Defense Production Act, which ordered an increase in domestic mining of “critical” materials sufficient to create a large-scale battery supply chain and move the nation away from fossil fuels and foreign production lines. Manganese was singled out as critical. Congressional passage of the Inflation Reduction Act also called for increased domestic mining in the name of green energy.
With an initial estimated outlay of $1.7 billion, South32 anticipates a lifespan of 22 years for Hermosa’s zinc deposit and 60 years for its manganese deposit. Full production is slated to begin in 2026 or 2027. Company executives celebrated their FAST-41 inclusion with the Permitting Council’s director in a press call last month. Hermosa project President Pat Risner drew a direct line between Washington’s goals and his company’s aims.
“These policies pave the way for a vast domestic expansion in electric vehicles, batteries, and renewable power production,” he said. “South 32’s Hermosa project is the only advanced mine development project in the U.S. currently that could produce two federally designated critical minerals as its primary products, those being manganese and zinc.”
Shafer was blindsided by the news. “That really wasn’t on our radar screen at all,” she said the first time we spoke. In the month that followed, PARA cranked up its advocacy like never before, organizing with larger NGOs and telling any reporter who would listen about the project’s extraordinary ecological stakes.
PARA’s Lawsuit
Last Tuesday, the calls for help became a call for action. PARA, with support from the nonprofit advocates of Earthjustice and the Western Mining Action Project, filed a lawsuit in federal court against the U.S. Forest Service and the supervisor of the Coronado National Forest, where the mining activity is concentrated. Several of the region’s environmental organizations — and its most experienced litigators — joined as co-plaintiffs, including the Center for Biological Diversity, the Tucson Audubon Society, and Earthworks.
The groups alleged a series of Forest Service violations of the National Environmental Policy Act and the Endangered Species Act, resulting in the rushed release of two permits for exploratory drilling projects in the Patagonias last month. One of the projects is overseen by South32 in conjunction with the high-priority Hermosa project. According to the lawsuit, the permits impede recovery of the threatened Mexican spotted owl and the yellow-billed cuckoo, as well as disrupt federally protected migration corridors for endangered jaguars and ocelots. (The Forest Service declined to comment on the pending litigation.)
Hermosa project at South32 is not named in the lawsuit. In an email, Risner suggested PARA’s ecological concerns were overstated.
“With a surface footprint of just 600 acres, the Hermosa project is a fraction of the size of most mining projects and keeps sustainability at the core of our approach,” he said before the lawsuit was filed. “Hermosa has also had in place for more than a decade a robust biological monitoring program.”
PARA and its supporters called on the court to declare that the Forest Service broke the law and quash the agency’s authorizations. The moment demands urgency, they argued: “Drilling could begin at any time.”
A Sky Island
The weekend before PARA and its allies filed their lawsuit, Shafer and her partner, Robert Gay, an architect and journalist, invited me on a bumpy drive deep into the mountains to survey the Patagonias’ rivers and canyons and offered their take on current fight and its wider implications.
The Patagonias are an iconic member of the “sky islands,” a network of mountain ranges that rise up out of the desert of southern Arizona and northern Mexico. Home to an estimated 100 endangered or threatened species, the mountains contain the largest cluster of mammal species anywhere north of Mexico, more than 500 species of birds, the highest density of breeding raptors on the planet, the most reptile and ant species in North America, and the most bee species on Earth.
The virtually unmatched biodiversity has made the town of Patagonia — with a population of around 900 residents — a world-class birding and wildlife research destination for generations. The town is also a launching point for the famed Arizona Trail, an 800-mile hike that traverses the state from north to south. More recently, it’s become home to a growing gravel bike scene, with riders pedaling through the mountains to reach the stunning San Rafael Valley, one of the last unbroken stretches of grassland ecosystems in the American Southwest.
Together with the unique abundance of flora and fauna, outdoor recreation has made Patagonia a hub in the “nature-based restorative economy” of Santa Cruz County. According to a 2021 University of Arizona study that PARA and other conservation groups in the area helped produce, the attractions generate tens of millions of dollars for local businesses and residents.
Though the battle over mining in the Patagonias goes back generations, this latest iteration is frustrating activists on the ground for reasons particular to the present moment.
Shafer and Gay are both diehard environmentalists. An “Earth Day is every day” flag hangs outside their home. They are deeply concerned about the climate crisis and would never say otherwise, but they are just as concerned about biodiversity loss and the planet’s unfolding sixth extinction. For them, a mine that would accelerate one cataclysm in the name of combatting another is unacceptable.
The minerals needed for a green energy revolution can be found elsewhere in the world, Shafer argued: “There’s no other place to go for Mexican spotted owl. Yellow-billed cuckoo. Jaguar. Ocelot.” The frustration in her voice rose as she ticked off the names.
Wild West
In the U.S., mining is governed by a law President Ulysses Grant signed in 1872. With scant regulations, the Wild West-era statute has undergone little substantive change in the century and a half since. Technology, however, has changed. The lone Civil War veteran busting his back hoping to strike it rich in a national forest has been replaced by multibillion-dollar corporations with the most advanced extraction tools money can buy.
In the Patagonias, the main hub of activity centers around an old mine water treatment site run by the American Smelting and Refining Company, or ASARCO. In the 1960s, the endeavor collapsed in a storm of bankruptcy and environmental damages, including pollution of Patagonia’s water.
Decades later, Arizona Mining Inc., owned by billionaire mining tycoon Richard Warke, purchased the land. South32 bought out Arizona Mining in 2018, in a $2 billion sale that marked one of the biggest mining deals of the year.
The area surrounding the old ASARCO site is largely national forest land, which South32 is actively exploring, as well as ranches and other parcels of private property. The privately held land is shrinking though, with South32 buying up properties one by one in recent years.
“It’s very, very active out here right now,” Shafer said. “These mountains, unfortunately, are chalked full of valuable minerals.”
For Shafer, the heart of the matter is water. Patagonia relies on the mountains entirely for its water, but the range’s hydrological significance doesn’t stop there. The mountains are the headwater of Sonoita Creek, which flows into the Santa Cruz River that provides water for more than a million people.
When ASARCO was running its mine in the 1960s, the company’s chief problem was water; it would fill the mine’s shaft and the company lacked the technology to keep it out. Facing the same challenge today, South32 has received permission from the Arizona Department of Environmental Quality to run up to 4,500 gallons of water per minute through one of its two water treatment plants, then dump that water into Harshaw Creek, a tributary to Sonoita Creek. At max capacity, Shafer noted, that would mean more than 6.4 million gallons of water flowing into the Harshaw on a potentially daily basis.
“We don’t know how much water they’re taking out and using on site, but that’s how much they are permitted to discharge into the Harshaw Creek,” Shafer said. “The community’s concern is: What is this going to do to that ecosystem?”
“Desiccate and Saturate”
A small stretch of the Harshaw has perennial water. Monsoon season aside, the water tends to lap around a person’s ankles. The rest of the creek is typically dry. What 6.6 million gallons of water a day would do — and more when the heavy rains of late summer hit — is difficult to fathom.
To put the town at ease, South32 released a video last year. The minerals the U.S. government seeks lie below the water table under the Patagonia Mountains, the company explained. South32 would drop the table by pumping water out. The water would then pass through a treatment plant before being dumped into the Harshaw. This would create “a cone of depression” around the well site, allowing safe underground work.
“Most of the discharged water will soak back into the ground. Some will evaporate or be used by vegetation, but most will recharge the aquifer without ever reaching the town of Patagonia,” the company said. Even in the event of a 100-year, 24-hour flood, the increase would not have an “adverse effect” on the hamlet, South 32 said, nor did the company “expect that wildlife would be negatively affected.”
PARA consulted with hydrological experts and responded with a video of its own. Noting that South32 planned to pump “the equivalent of 10 Olympic-size swimming pools per day” into the Harshaw every day for up five years, the experts predicted the creek would quickly go from almost entirely dry to constantly flowing, carrying any undetected contaminants from the mine wherever it ran and heightening flood risks during monsoon season.
As we prepared to head out for our drive into the mountains, Gay pulled out a poster he made, detailing the expanse of water South32 expects the town of Patagonia to receive in the event of the 100-year flood — and how it would cover the town’s properties. “When you look at that closely,” he said, “it’s 70 percent of the lots now.”
In Patagonia, the problem would be too much water. In the mountains, it would be the opposite. “My fear is it’s going to dewater the mountain,” Shafer said. “If it dewaters the mountain, it kills the plant life. If it kills the plant life, there’s no place for this incredible biological diversity to survive. That’s my bottom line, but that’s not speaking as the organization. That’s speaking as Grandmother Carolyn.”
“It’s feast or famine,” Gay added. “I call it desiccate and saturate.”
Hoping for a Miracle
Patagonia’s paved roads disappeared in the rear-view mirror. Gay’s beat-up 4Runner crept slowly over the rough terrain. Approaching the old ASARCO site from the north, we passed abandoned mining tunnels from decades before, ranches that had been sold to the mining company, and others that soon might be.
“It is a patchwork of extreme complexity,” Gay said, leaning forward on the wheel. “Just a snarl, between the bumpiness of the land and the irregularity of the property lines.”
At a town council meeting last month, South32 presented its plan for managing the convoys of trucks that would run these roads, hauling minerals for green energy out of the mountains. In the early stages, it would be 62 heavy trucks, 26 buses, and 139 passenger vehicles daily. The flow would increase as the project became fully operational, at which point more than 200 heavy-duty trucks — in addition to the buses and passenger vehicles — would come through.
Given the landscape, traffic at that scale would require significant road work and with it, the obliteration of the mountains’ otherwise serene quiet. Like the water in Harshaw Creek, the change was difficult to imagine.
“Patagonia in 10 or 15 years won’t be recognizable anymore,” Patagonia Vice Mayor Michael Stabile said in an interview in the Patagonia Regional Times. Stabile was a founding member of PARA, though he no longer works with the organization. “They’re going to flood us with water,” he said. “And they’re going to flood us with trucks.”
Days before we met up, Shafer had a similar moment of unsettling clarity. “I just realized I have shifted into grief about what is happening here,” she said. “Because of the realization of how special this is to me and that I will not be able to come out here for at least seven years, and when I do get to return, what will it be like?”
South32’s assurances about safeguarding the ecological systems were cold comfort for Shafer. “There’s nothing legally we can do to stop it. What we can legally do is mitigate the potential damage. That’s what we’re working very hard to do,” she said. “But unless something under the definition of miracle happens, there will be destruction by industrialized mining in these mountains.”
“The disaster of that,” Shafer said, “is that this is one of the regions of the world most in need of protection for species survival.”
The Cathedral
There was little to see at the old ASARCO site. A locked gate. A handful of “no trespassing” signs. We turned around and headed west into Humboldt Canyon, where work is currently overseen by Barksdale Capital Corp., a Canadian company specializing in mineral exploration — the kind that precedes a company like South32.
“I am in a stronger relationship with the natural world in this canyon than I am in any other canyon,” Shafer said, as we passed under a majestic spire of twisted rock. “This is a spiritual experience for me — full of experiences of dear friends of mine.”
Years back, Shafer officiated her friends’ wedding in the canyon. The couple was among PARA’s original founders. The groom was Glen Goodwin, an old-school Arizona cowboy who, in 2014, detected extensive water contamination stemming from the Patagonias’ old mine sites — including sites that are revving back up again today. Goodwin died last year. His ashes were spread in Humboldt Canyon.
The road twisted deeper into the mountains until coming to a stop in a clearing. Shafer got out and leaned against a tall pine tree, listening to the birds. “For me,” she said, “this meets the classic definition of a cathedral.”
On our way off the mountain, we stopped to watch mule deer grazing in a field. We dropped Gay off in town before leaving for the tour’s final destination: the perennially flowing stretch of Harshaw Creek.
Willow trees lined the way, along with massive Arizona sycamores. We walked down to a particularly beautiful bend in the creek. Shafer mentioned a paper she recently heard about discussing the mental health benefits of birdsongs.
“When you live with something all the time, you don’t think much about it,” she said. “But I have birdsong all day long, and it is something I do appreciate.”
Shafer is the last of PARA’s original core still living and working in Patagonia. “Two are now dead, two have moved out of country,” she said. She knows that stopping the mine is next to impossible, but then, the same could be said of her.
Shafer’s mission now is making the cost of doing business in the Patagonias match the value of the place. “I’m sorry if you’re not going to get a 25 percent profit margin,” she said. “If you have to live with 5 percent to honor what is here and you don’t like that, then go away.”
She leaned forward, smiling, and added in a whisper, “It wouldn’t hurt me if you left.”
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