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Trump Legal News: Nobody's Fault but Mine

There is, predictably, an ongoing avalanche of coverage and commentary related to Donald Trump's latest indictment, with most of it highlighting how badly exposed he is. Here's a rundown of the ten things we read yesterday that we found most important/interesting:

  1. Super Monday?: The biggest news of the day on Wednesday was that Fulton County DA Fani Willis filed a proposed calendar for handling the case against Trump and his 18 co-defendants. As she already noted, she wants to try all of the defendants at the same time (time will tell if that happens, but don't bet on it). In addition, she wants to handle arraignments the week of September 5. Oh, and she wants to begin the trial on March 4 of next year.

    According to the filing, Willis chose March 4 because she's ready to go, and because she wanted to leave enough time for Jack Smith to try the Washington case. We see no reason to doubt that is the truth. However, March 4 also happens to be the day before Super Tuesday. Even if Judge Scott McAfee is unconcerned about the political implications of that, it's very unlikely that all 19 defendants can be ready, with their rights to review the evidence against them fully observed, on such a short timeline. Willis surely knows this, so best to think of that March 4 request as an opening bid that amounts to "I want to get this done before next year's elections."

  2. You Can't Spell D-U-M-B without "DM": Yesterday also saw court documents unsealed that give more insight into what Smith and his team wanted from Donald Trump's Twitter account. They were primarily after direct messages (DMs), which are not generally public. They also wanted location data, as well as information about tweets that were drafted but not sent. It's not entirely clear if the warrant produced anything useful, as nothing in the Washington indictment of Trump references non-public Twitter information. However, a prosecutor has to have some compelling justification for a warrant, so there may well be something there. In any event, how stupid does a person have to be to use a computer system that is not under their control, and where everything is saved, in the process of committing criminal acts?

  3. Rudy, Rudy, Rudy: We made a brief mention on this yesterday, but it's worth noting in more detail: Rudy Giuliani is apparently broke. He has massive ongoing monthly expenses, and whatever cushion he had was drained by his various legal entanglements. Now, he's got the Georgia situation to deal with, and a likely prosecution in Washington, and the various defamation lawsuits where he's a defendant.

    Giuliani has reportedly begged Trump to help cover the bills, but Trump hates to spend money on someone other than Donald J. Trump, and besides, he's got his own massive legal bills to worry about. If Giuliani can't afford to defend himself, it will undoubtedly increase his motivation to turn state's evidence. And if America's Former Mayor does that, well, as we've noted, he knows where all the skeletons are buried.

  4. Captain Irony: As we've noted a few times, the Racketeer Influenced and Corrupt Organizations (RICO) Act was passed by Congress specifically to make it more plausible to go after the mafia. Eventually, federal prosecutors figured out that the RICO Act was useful for going after other kinds of wrongdoers, including corrupt politicians and dishonest businesspeople. And the foremost pioneer in developing new and novel applications for the RICO Act? The Ronald Reagan-era U.S. attorney in the Southern District of New York. A fellow named... Rudy Giuliani. He who lives by the sword, dies by the sword?

  5. Indefensible: There are lots and lots of pieces about how the most obvious defenses Donald Trump might try in Georgia are not especially viable; probably the most readable of those pieces is the one from The Bulwark. In brief: (1) The First Amendment is no defense, because it's free speech to make whatever claim you want, but it's not free speech to organize a conspiracy based on those claims; (2) Following the advice of counsel is no defense, because counsel, in this case, was also a part of the criminal enterprise; and (3) The election result was fraudulent, or Trump believed the election result was fraudulent, is no defense, because there's no proof it was, and even if there was such proof, one cannot respond to an illegal act by committing an illegal act in response.

  6. UnKempt: It is not a secret that Gov. Brian Kemp (R-GA) does not much care for Donald Trump. That said, Kemp is clearly planning a run for the U.S. Senate once he's term-limited, and he needs a lot of Trumpist votes to make that happen. So, the Governor could plausibly sit on the sidelines during the various legal machinations in Georgia, and perform his best impression of the three wise monkeys (see no evil, hear no evil, speak no evil).

    It would seem that will not be Kemp's plan, however. Yesterday, he ripped into Trump, and in particular to the claim that there was widespread election fraud in Georgia. It is not great for Trump's political prospects in the Peach State, and it's probably not helpful for his legal prospects either, if the sitting Republican governor is helping to lead the anti-Trump chorus.

  7. Something Different?: In our initial write-up of the indictment, we noted that "Peach Pickin' Time in Georgia" was recorded by Merle Haggard, but failed to note that it was a cover of the original, by Jimmie Rodgers. Oops. We also listed some of the ways in which the Georgia case is different from the other three Trump felony cases. We were working from initial impressions, and on a tight timeline, and it's also possible we were being haunted by the spirit of Rodgers, so our list was certainly not comprehensive. There have since been many pieces highlighting important differences we missed, or only alluded to indirectly.

    To start, as Politico's Erica Orden points out, the charges faced by Trump are, consistent with Southern states' preference to be "tough on crime," the first ones to come with mandatory prison sentences. Most of the counts come with a 1-year minimum sentence. Interestingly, the most serious charge, the RICO violation, does not have a mandatory prison sentence (a conviction can theoretically be settled by paying a fine). However, if a prison sentence IS imposed for a RICO violation, then that sentence must be at least 5 years. In short, other than winning in court, Trump has few options for avoiding prison in Georgia. A conviction in court, or a plea deal, would almost certainly trigger an automatic trip to the crowbar hotel.

    UCLA election law expert Rick Hasen, meanwhile, chose to focus his first post-indictment thought piece (there will be many more, no doubt) on... race. He argues that race is central to the Georgia case. The charging DA, Fani Willis, is Black. So too are Ruby Freeman and her daughter Shaye Moss; abuse of that duo forms the basis of several of the criminal counts in the indictment. Trump does not like to be held to account by anyone, but he's particularly infuriated when the person doing so is Black, a woman, or a Black woman. The odds of him saying many outlandish and racist things are high. And if he does, he could be sealing his own doom. Not only is he likely to draw at least a couple of Black jurors, who may not respond well to racist language, but the former president could also be putting himself at risk of bail revocation (keep reading).

    And finally, on the subject of bail, Georgia has some rather stringent laws in that area. Specifically, a judge can only grant bail if a defendant meets certain requirements. Among those requirements is that the person "poses no significant risk of committing any felony pending trial" and the person "poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice."

    Those are pretty low bars to clear, but they may still be too high for Trump. It is surely very unlikely that a former president will be denied bail and held over until his trial commences. However, when he is arraigned, he is undoubtedly going to get a warning to keep his lip zipped, both verbally and on social media. And if he fails to abide by that warning, he could very well find himself headed to a Georgia jail. Again, imprisoning a former president, pre-trial, is not a headache that either the judge or the state wants. But the law is the law.

  8. Let's Not Make a Federal Case Out of It: We wrote about Trump's already-in-motion efforts to get the case moved from Georgia to a federal court. In that, we proposed that if he pulls it off, he might be able to get a (Republican) presidential pardon for the Georgia offenses. Quite a few readers wrote in to (correctly) take us to task, and to point out that a change of venue would not change the rules for pardons. That's what we get for taking legal advice from the staff dachshunds.

    In any case, the reason that Trump wants to move the case to a federal court is that he wants a friendlier jury pool than he'll get in Fulton County, and also a chance at drawing a judge he appointed to the bench (his odds would currently be 4-in-15, or 26.7%). To pull this off, Trump needs to move quickly (he's got 30 days once arraigned), and he needs to argue that he was acting in his capacity as president (i.e., a federal employee) and thus should be subject to the jurisdiction of a federal court. In a piece for The Atlantic, Laurence H. Tribe, Donald Ayer, and Dennis Aftergut push back against this very hard, observing that at least a portion of the criminal acts Trump is accused of were taken while he was a private citizen, and asserting that Georgia should be given the opportunity to defend its own laws.

  9. Polls Going South: It became crystal clear last week that a fourth indictment was imminent. That means that polls released this week reflect, at least to an extent, the impact of that news. And the early indications are not going to make Trump happy. The newest from Fox reveals that 53% of respondents think Trump did something illegal, while another 20% think he did something wrong but not necessarily illegal. Those numbers are not going to get better as his trials, and the evidence therein, get more coverage. Meanwhile, the latest from The AP/NORC says that 53% of respondents definitely will not support Trump for president, while 11% probably won't support him. If that 11% splits evenly, then we end up with close to 60% of people who won't vote for Trump. You can't win presidential elections with only 40% of the vote.

  10. Time to Abandon a Sinking Ship?: Consistent with the polling, and the rather obvious conclusion that things are only going to get worse for Trump as his legal woes dominate the front pages, there are already calls for Republican officeholders to rip off the Band-aid and to turn their backs on a candidate who is damaged goods. For example, Noah Rothman, of the conservative National Review, writes a piece that concludes: "Trump is already an all-consuming presence in American life, and we haven't seen anything yet. His criminal trials will be the media event of this century, and any election in which he is a candidate will devolve into an up-or-down referendum on the allegations against him. Republicans need to reckon with this reality, and the sooner, the better." Similarly, the editorial board of the centrist Fresno Bee published an editorial aimed at Speaker Kevin McCarthy (R-CA) urging him to "Disavow Trump and let him face justice. Do that for the good of America, the GOP, and history's judgment."

And that's the Wednesday round-up. We suspect there might just be some more coverage of this story today. (Z)

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