As you can see from the headlines, there was all kinds of Donald Trump-related legal news yesterday. So, brace yourself, and maybe pour yourself a second cup of coffee (or, alternatively, take a Xanax), because away we go.
The biggest news on the Trump legal front yesterday was, of course, the machinations surrounding the Mar-a-Lago search affidavit. The media wants the affidavit released. The former president says he wants the affidavit released. The Department of Justice says it wants the affidavit to remain sealed. Judge Bruce Reinhart said yesterday that he's inclined to make a redacted version of the affidavit public. It could be weeks or months until all the details are worked out and that actually comes to pass, but that's where this is headed.
Although this was just a preliminary hearing, some new information was revealed on Thursday. It was already a near-slam dunk that Trump is the focus of the probe, and some of the statements made by the DoJ in court all but confirmed that. Further, one of the Department's main arguments for keeping the affidavit under wraps is that this investigation is "just getting started" and has a long way to go. If you are a potential defendant who has already had materials seized from your residence, that is not what you want to hear. It also came out yesterday that the DoJ is not trying to protect the identity of a witness who spilled the beans about Trump. No, the feds say they are actually trying to protect the identity of several witnesses. Again, if you're a potential defendant, this is not what you want to hear. And finally, the affidavit is apparently quite lengthy, and contains compelling evidence of obstruction of justice, in particular.
Moving on to Donald Trump, his motivations here remain in question. We remind you of our three theories as to what Trump might be aiming for here:
We asked if readers had other ideas, and some of them did. Here are some additional analyses:
Whatever Trump's goal is, he didn't bother to send anyone to appear on his behalf on Thursday to press the matter. Maybe he couldn't find a lawyer to do the job (see below). Whatever is going on, a redacted version of the affidavit is probably the worst of all worlds for him; it adds extra fuel to the "Trump is a crook" fire, further undermines arguments about government transparency, and does both of these things without giving his acolytes any information about who the "enemies" are, while also keeping key information about the prosecution's case under wraps.
That's the latest bad legal news for the former president. Well, from federal court, at least. (Z)
Yesterday, while Donald Trump and his representatives were ignoring the affidavit hearing, Trump's former CFO Allen Weisselberg was in New York state court to affirm his plea deal. Weisselberg has agreed to testify against the Trump Organization and, if he follows through on that promise, then his punishment will be five months at Riker's Island and coughing up $2 million in unpaid taxes (including interest). If Weisselberg does not properly adhere to his promise to testify, then the sentence could jump to 15 years. That's pretty much a life sentence for a fellow who is 75 years old. After all, Riker's is not exactly a health spa.
Nearly every story about the plea deal emphasized that while Weisselberg has agreed to testify against the Trump Organization, he did not agree to testify against Trump. However, that may be a distinction without a difference, as the two are basically one and the same. The former president has not yet been charged with any crimes in New York. But if it is, it would be very difficult for the former CFO to implicate the business without implicating its owner and chief officer. We'll learn more in October, when the case against the Trump Organization is scheduled to get underway. (Z)
Donald Trump understands that he is in deep legal trouble. He can yell: "HOAX! FAKE NEWS!" at the top of his lungs all he wants, but he needs to prepare for the very real possiblity of criminal indictments, both for crimes related to the coup attempt and for crimes related to stealing (Top Secret) government documents and then lying about it. Oh, and an indictment in Georgia is almost a given at this point. This means the former president needs a team of top-flight criminal defense lawyers, some with federal experience and some with Georgia experience.
What Trump is discovering, to his great chagrin, is that no top-flight defense lawyer will touch him with a barge pole. They are all saying "NO!" to him. There are at least half a dozen reasons for this:
For all these reasons and more, Trump can't find top-of-the-line defense lawyers willing to defend him.
Trump's close advisers are worried that his current stable of lawyers are not up to the job. Most have no experience at all with defending the kinds of charges Trump is likely to face. After all, how often does it happen that someone comes to a lawyer saying: "I've been charged with stealing Top Secret documents about nuclear weapons? Can you defend me?"
The team searching for defense lawyers includes Susie Wiles, Christina Bobb, and Lindsey Halligan. Wiles, a long-time Trump adviser, runs a lobbying firm. Bobb is a former OANN host. Halligan was only recently admitted to the Florida bar and focuses on insurance claims at residential and commercial properties. None of them have high-level federal (or Georgia) defense experience, especially not for cases that could dominate the national news for months. Are these the right people to be lawyer shopping? Do they have the connections and credibility needed? We wonder.
Trump does have one lawyer already for the stolen-records case: Alina Habba. She heads a three-lawyer firm close to Trump's Bedminister, NJ, golf course. Her recent experience includes being general counsel for a parking garage company. She has also sued The New York Times and Trump's niece, Mary Trump. This is not quite the same as handling the defense for white-collar crime indictments.
Trump also has a couple of lawyers with relevant experience, Evan Corcoran and James Trusty. But Corcoran defended Steven Bannon, who was accused of contempt of Congress, and lost. These two can certainly help, but Trump has so much legal exposure, he needs a much larger team and a super-lawyer to coordinate and herd all the other lawyers. And he or she needs to be willing to be forever associated with Trump, deal with his constant outbursts, and risk not being paid. (V)
Aaaaand, the Trump legal stuff just keeps coming. Maybe you should get another cup of coffee, or should get up and stretch your legs and clear your head before continuing. Here's some intermission music for you:
Ok, onward and upward. In a useful companion to the previous item, former federal prosecutor Robert Katzberg, writing for Slate, observes that another big problem that Donald Trump has when it comes to putting up a defense in all of these looming legal cases is... Donald Trump.
Specifically, Katzberg points out that whatever cases may come down the pike, Trump will likely be unable to testify in his own defense. There are at least a couple of big problems on that front. The first is that the former president, of course, tends to lie. Constantly. You can get away with that when you're in the Oval Office, but on a witness stand, lying is a crime. The second issue is that once Trump takes the stand, the prosecution can potentially introduce all sorts of unpleasant things about him in order to make its case.
Katzberg thinks it is instructive that when Trump sat for a deposition in New York last week, he pleaded the Fifth over and over. A deposition in a case like that is about as softball-ish as it gets, since the obvious defense is pretty much baked into the proceedings ("It was my employees' fault and not mine!"). If the former president and his lawyers decided that even in that proceeding he needed to keep his lips zipped, then there is basically no way he can take the stand in a case where the heat is really on.
In criminal cases, like the ones Trump may well face in Georgia and in federal court, juries are not supposed to infer guilt from a refusal to testify. However, not all jurors live up to that ideal. Furthermore, if the government tells one story, and Trump is unable to push back with a different story, then the presumption is likely to go in the prosecution's favor, since they have cold, hard evidence.
One wonders how well Trump sleeps these days. On one hand, he's gotten away with so much for so long, he may well be persuaded that the magic will continue. On the other hand, he's got so many problems on so many fronts, he might spend the night tossing and turning, as he waits for the other shoe(s) to drop. (Z)
Staying on the Trump legal beat for one last item, Charlie Sykes, one of the ringleaders over at The Bulwark, wrote a piece entitled: "Would the GOP Nominate an Indicted Trump?" That is putting the cart before the horse since he hasn't been indicted (yet), but you don't need a high-performance crystal ball like the one we have to realize that one or more indictments are real possibilities.
Then what? Being under indictment doesn't produce any legal impediment to running for president. In fact, probably a conviction doesn't either, and certainly not if the appeals are still going on. If the Supreme Court had to decide whether an indicted or convicted person was eligible to be president, it would probably say that any natural-born citizen who is at least 35 and who has lived in the country for 14 years is eligible. Those requirements are in the Constitution and neither Congress nor any state can create new requirements. Presumably, someone actually in prison could run and win. If elected, the convict could pardon himself for federal crimes and the Supreme Court could uphold that since the Constitution does not explicitly ban self-pardons. Of course, presidents cannot pardon state crimes.
Sykes observes that Documentgate seems to have strengthened Trump's support with his base and certainly with the right-wing media. Dan Bongino at Fox News had a banner: "FIRE EVERYONE INVOLVED IN THE TRUMP RAID." Newsmax contributor Jenna Ellis tweeted: "Democrats think you're the enemy." Charlie Kirk at Turning Point Action decreed: "The raid at Mar-a-Lago only makes me like Donald Trump even more." A headline at Gateway Pundit: "These people are lawless." The Federalist says the "raid" was to get Trump, not documents. It's the same story everywhere. Are any of these people going to say: "Whoa! You can't nominate someone under indictment?" Don't bet on it.
Of course, it is up to the Republican voters in the primaries. Well, if there are any. It's not out of the question that the RNC could announce that there will not be any primaries in 2024 and Donald Trump will be the nominee by acclamation. Don't think so? In 2020, in a number of states, including Kansas, Nevada, and South Carolina, the Republican state parties scrapped their primaries and caucuses and just awarded all their delegates to Trump. Even if the central committee didn't do so, various state-level organs could decide individually (as in 2020). As we have seen, most state GOP organizations are dominated by Trumpers.
In short, so far there is little evidence that an indictment would stop Trump from running for president (and maybe not even a conviction, particularly if the appeals hadn't run out yet). Of course, whether this would be wise and how it might play out with independent voters in the general election is a whole different ball of wax. (V)
Harriet Hageman (R), who is certain to be the next at-large representative from Wyoming, apparently can't leave well enough alone. It's not enough that she defeated Rep. Liz Cheney (R-WY) handily. No, the soon-to-be congresswoman just had to go on Sean Hannity's program and kick Cheney while she was down. Clearly trying to suggest that the Representative is a sore loser, Hageman claimed that she received only a two-second concession voicemail from Cheney, and that the entirety of the message was "Hello, Harriet."
This, of course, makes absolutely no sense. If someone is going to be a sore loser, why would they leave such a short message? Why leave any message at all? And if Hageman's story is truthful, it doesn't suggest "sore loser," it suggests "dropped call" or some other technical issue. But of course, the story isn't truthful. Cheney promptly responded to the claim, explaining that she tried to reach Hageman three times on election night, and when she was unable to do so, she left this voicemail:
Hi, Harriet, it is Liz Cheney calling. It is about 8:13 on Tuesday the 16th, I'm calling to concede the election and congratulate you on the win. Thanks.
Cheney had an audio recording of the message, so she's clearly telling the truth. Why she recorded the voicemail, we do not know. Maybe the Representative knew what kind of person she was dealing with. Or maybe dad taught her that you always make sure to cover your a**. In any event, the fact that Hageman behaved like a petulant child, and couldn't wait to get on the Fox airwaves to take potshots at her "enemy" gives us a pretty good idea, if we didn't already know, that we're about to add yet another Boebert/Greene type to the House. Should be just delightful.
As long as we're on the subject, there are quite a few op-eds (like this one from The Bulwark) agreeing with us that Cheney 2024 likely won't make a whole lot of sense. However, CNN had an op-ed yesterday proposing a much more compelling option: Joe Biden should appoint Cheney to a Cabinet-level position in his administration, something along the lines of an election integrity czar.
This would be entirely legal; it's not necessary for the Senate to approve someone for such a position (although they surely would sign off, if asked). For Biden, it would give him a useful underling and would allow him to burnish his "bipartisan" credentials. For Cheney, it would give her a larger and more high-profile platform than she could achieve as a private citizen, even if her new PAC takes off. So, this seems like something that could happen, once Cheney's work on the Select Committee is complete. (Z)
Liz Cheney is a Republican who actually cares that American elections are fair and honest. Gov. Ron DeSantis, by contrast, is a Republican who pretends to care that American elections are fair and honest. He has no actual credibility on this issue, and has shown time and again that what he really cares about is keeping people, particularly if they are more likely than not to be Democrats, from voting.
The Governor's latest BS on this front came yesterday, when he announced that the state has identified—gasp!—20 ex-felons who voted in 2020 and should not have done so. They will be arrested by Florida police officers in short order. The governor also helpfully pointed out that most of the ex-felons voted in Democratic strongholds (e.g., Miami) and promised that more arrests are coming.
Let us now poke some giant holes in this vile political theater. First of all, DeSantis himself so thoroughly muddied the waters after ex-felons were, then weren't, then maybe were, then maybe weren't given the right to vote again that any "fraudulent" ballots were surely honest mistakes. Second, Florida has a population of over 21 million people. That being the case, 20 votes are not enough to affect any election, even the race for deputy assistant dogcatcher in Sticksville. Third, when four people in The Villages (a.k.a. a Republican stronghold) were caught casting actual fraudulent votes for Donald Trump, DeSantis said nary a word.
The governor's game is so transparent here, you hardly need us to spell it out. But we will anyhow, because we're a full-service site when it comes to calling out people on their flinging of dung (remarkably, we wrote that before seeing the message from D.E. in Lancaster about throwing feces... great minds?). DeSantis believes that he is well-served by the narrative that voter fraud is rampant, thus allowing him and other Republican officials to crack down on voting. He may or may not be right about that, but that's what he says he believes. On top of that, he very much wants to scare other ex-felons into not exercising their franchise, for fear of arrest. And finally, DeSantis knows full well that to a lot of the people who would consider voting for him, "ex-felon" is a dog whistle for "violent minorities."
We recognize that the previous paragraphs are laden with judgment. However, the one issue we openly advocate for is voter access. It's why the site was created in the first place (specifically, to serve voters abroad), and it's the focus of all of the banners we run at the top of the page. So, we're not going to pretend, in service of some phony notion of "balance" or "both sides have a point," that the Governor's behavior is anything but reprehensible. Again, he lost the benefit of the doubt long ago.
DeSantis did also get some bad news on Thursday, which he may well have been trying to drown out with his announcement about the felons. First, a judge stayed (at least temporarily) portions of one of the Governor's pet pieces of legislation, the Stop WOKE Act. That bill, among other provisions, limits what schools can teach when it comes to race, and it also places strict limits on private businesses' ability to require mandatory diversity, equity, and inclusion trainings. U.S. District Judge Mark Walker, who appears to have read the Constitution, including those 26 or so troublesome addendums at the end, thinks that regulating the speech of private companies might just be a violation of the First Amendment. Walker, who is apparently down with what the kiddies are watching, wrote this in his opinion:
In the popular television series Stranger Things, the "upside down" describes a parallel dimension containing a distorted version of our world Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.
For those whose pop culture references are not quite as current, allow us to translate: The Judge is basically saying that Florida has turned into The Twilight Zone. After all, DeSantis did get into politics to serve man.
And this was not the only poke in the eye for the Governor yesterday. Remember Andrew Warren, the DA who was removed from office by DeSantis after promising not to prosecute abortion cases? Well, Warren has now formally challenged his suspension. And what is the central basis of Warren's complaint? You guessed it: That in imposing the suspension, the Governor ran roughshod over the First Amendment.
Warren, in our (non-lawyer) view, has a pretty good argument here. When we originally wrote that story up, we pointed out that Florida law gives the Governor the power to remove officeholders for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform official duties, or commission of a felony. However, Warren had yet to commit any such acts when he was removed. If DeSantis had waited, he likely would have had Warren dead to rights, but instead the Governor jumped the gun. He's supposedly smarter and more competent than Donald Trump, but he seems to have the exact same poor impulse control whenever there are cheap political points to be scored. So, maybe the two men are not so different, after all. (Z)
The news out of Florida has left a bad taste in our mouths, so the last two items of the day are going to be counterpoints, of different sorts, to Ron DeSantis' antidemocratic behavior.
This item was brought to our attention by reader G.H. in Reading, MA. Tennessee (like Hawaii) held its primary on a day other than Tuesday, and then it took a while for the dust to settle. So, this news isn't from this week, though it's not yet stale. In short, Memphis DA Amy Weinrich (R) got booted out of office by the voters of her city. It wasn't especially close; Democrat Steve Mulroy took 56% of the vote to Weinrich's 44%.
There are many reasons that Weinrich lost, among them her insistence on cash bail, her preference for trying juveniles as adults, and her tendency to hire only staffers who are, shall we say, at great risk of a sunburn. However, one of the main issues was that Weinrich's office railroaded a Black woman and ex-felon named Pamela Moses, who was accused (and convicted) of casting a fraudulent ballot in a 2019 election. The penalty that Weinrich's office asked for, and got? Six years.
What happened here was that Moses was freed from prison back in 2015, and thereafter asked her parole officer if she was again allowed to vote. He said she was, and signed a document to that effect. At trial, prosecutors argued that Moses had "deceived" the parole officer. Truth be told, we don't even know how that would work. In any case, the Tennessee Department of Corrections looked into the matter and determined there was no deception. Weinrich and her subordinates were aware of this, but—oops!—forgot to mention it to Moses' defense attorneys.
Needless to say, withholding evidence is a big no-no for a prosecutor. When the Dept. of Corrections report came to light, the conviction was vacated (and, eventually, the charges were dropped entirely). And now Weinrich, who is clearly not a shining example of a dedicated civil servant, or even of a decent human being, is out on her ear. One can only hope that other "election fraud" zealots—say, those who govern a large, Southern states—ultimately pay a similar price for their anti-democratic behavior. (Z)
As we note above, we are big fans of making sure that everyone who wants to cast a ballot, and is entitled to do so, is able to exercise their franchise. And, as readers will recall, many sports teams made their large outdoor venues available as polling places during the pandemic. A group of political scientists decided to take a close look at this, and recently issued a report declaring that this experiment was an unqualified success.
We think it's worthwhile to read the authors' "Top 3 Takeaways" in their entirety, but if you don't want to do that, you can just read the headers:
In short, everyone involved came out ahead, and so too did democracy. What's not to like?
It would seem that the folks who run the NBA read the report. Or maybe they just figured things out on their own. Either way, the league announced this week that there will be no games scheduled for Election Day (November 8). Teams will promote voter registration in their early season games, and some will even facilitate that at their venues. Then, the whole league will shut down for a day. This will free fans to take care of their civic business, while also leaving the NBA's arenas available for use as polling places. So, way to go, NBA! The NFL doesn't play on Tuesdays, and Major League Baseball will have concluded its season by then, but maybe the NHL will follow suit.
Enjoy your weekend, everyone. Just be careful about falling when voting on ice. (Z)