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I'm So Indicted

Yesterday, it was Peaches & Herb; today you should feel free to channel The Pointer Sisters as you read the headline (thanks to reader J.P. in Horsham, PA, for the suggestion). Anyhow, things moved rather more quickly than expected with the federal indictment of Donald Trump, and so there was a lot of news and new information yesterday. Let's run down the ten biggest storylines, as we see them:

  1. Loose Cannon?: We start with one of the biggies: The case has been assigned, at least for now, to Judge Aileen Cannon, a Trump appointee to the federal bench who earned both fame and infamy for her earlier rulings in this case (specifically, her shockingly dubious ruling that Trump was entitled to a special master, who was to review seized documents for potential executive privilege claims).

    There is no way to know, at this time, how Cannon drew the assignment. It could be because she was already involved in the case; sometimes "you handle the opening days of the case" assignments are given to judges who are already familiar with a particular proceeding. It could be because her docket wasn't as full as those of her colleagues. It could be random chance.

    Let us start by imagining that Cannon is indeed in the bag for Trump, and will do anything she can to help her benefactor. Could she derail the case? That is certainly within her power. We checked with one of our lawyer readers, R.E.M. in Brooklyn, who confirmed she cannot dismiss the indictment out of hand: "Dismissal of an indictment before trial has commenced does not create 'jeopardy' within the meaning of the Fifth Amendment. Only after trial has commenced would a dismissal (or verdict) prevent the government from appealing."

    So, the Judge is not going to be able to wave her hands and make this all go away. However, if she holds on to the case, she could help the former president in a bunch of ways. She could try to get MAGA jurors seated by rejecting voir dire challenges from the prosecutors. She could exclude evidence that puts Trump in a bad light. She could craft jury instructions that steer the members toward acquittal. She could, as R.E.M. suggested to us, drag out the timeline for the trial, such that it cannot commence until after the election. In that case, Trump could run for president largely unfettered (Georgia and New York cases notwithstanding), and if he or some other Republican wins, he could theoretically be pardoned.

    Now, as an alternative, let us consider that Cannon is not actually in the bag for Trump. Or that she's in the bag for him, but she's also concerned about destroying her reputation and/or facing some sort of sanctions. Another lawyer-reader, A.R. in Los Angeles, weighs in on this possibility:
    Once again, Trump draws a sympathetic judge to oversee the federal criminal case, his own appointee, Aileen Cannon.

    But I actually think this will work out well for the prosecution. Cannon has already issued a ruling related to this case when she tried to appoint a special master to review all the documents seized under the search warrant. But she was slapped down hard by an appeals court panel—twice! The panel consisted of judges who are all Republican appointees, including two Trump appointees.

    So, whatever sympathies she may have to Trump will be tempered by the realization that the appeals court is not in the bag for him. She'll make every effort to avoid a repeat of that earlier outcome. Couple that with the fact that this will ultimately be tried by a jury and I believe her presence will only help legitimize a guilty verdict. I'm sure the prosecutors are confident they can overcome any obstacles she throws at them.
    This is an important point. If Cannon keeps the case, and makes dubious decisions, they can be appealed to the United States Court of Appeals for the Eleventh Circuit. Although the 12 non-senior judges who sit on this circuit skew slightly Republican in terms of who appointed them (7 GOP appointees vs. 5 Democratic appointees), the group is not known for its "creative" interpretations of the law in the way the Fifth Circuit is.

    There is also an excellent chance Cannon will not hear the case. The fact is, as a Trump appointee, she should recuse herself as a matter of course. She might well summon up enough integrity to do that, or she might decide that she wants to save face rather than being removed from the case. Alternatively, if she doesn't self-recuse, and if Special Counsel Jack Smith and his team believe Cannon won't give them a fair hearing, they can go to the Eleventh Circuit and ask for a new judge. Between Cannon having been appointed by Trump, and her questionable decision-making earlier in the process, that request is exceedingly likely to be granted.

  2. Unlucky Number 37: The indictment has been unsealed; you can read it here, if you wish, or you can read an annotated version here.

    It was already known that Trump had been charged with seven different crimes. With the indictment in hand we now know he's being charged with 37 different criminal acts. That includes 31 counts of willful retention of national defense information, and one count each of conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, and scheming to conceal.

    The various charges against the former president carry a total maximum sentence of 400 years. Recall that Manhattan DA Alvin Bragg has already charged an additional 34 counts carrying a potential sentence of 136 years. That means it is now incumbent upon Fulton County DA Fani Willis, and Smith in any 1/6 related indictment, to come up with 29 more counts carrying a potential sentence of 464 years. Then Trump would be looking at 100 counts and a nice, round 1,000 years in prison.

  3. A Partner for Bridge: Although Trump has many enablers in his orbit, only one of them was apparently stupid enough to leave himself open to significant criminal exposure. That would be Trump aide Walt Nauta, who helped the former president move boxes of documents around in hopes of keeping them hidden from Trump's attorneys and from the feds, and then turned around and lied to the FBI about it. Nauta now faces six charges of his own (the same ones Trump faces, excepting the 31 counts of willful retention of national defense information).

    Nauta certainly introduces an interesting wildcard into the situation. On one hand, maybe he's a Steve Bannon-type True Believer, and willing to do anything to protect his boss. On the other hand, he might notice that he's facing a long, long time in the slammer, and might decide to flip on Trump in exchange for a plea deal.

  4. Another Smoking Gun...: This leaked out several hours before the indictment was released, and then is also noted in the indictment itself. It would seem there is yet another tape from yet another meeting where Donald Trump decided to shoot himself in the foot. In this one, Trump can be heard telling someone that he kept "secret" military information after leaving the White House, and that "As president, I could have declassified, but now I can't."

    It is an excellent question as to why Trump would admit this so openly. Undoubtedly, he didn't know he was being recorded, but it is nonetheless unwise to tell people about the illegal acts you've committed or are in the act of committing. Even absent a recording, discussing a criminal act with someone creates an eyewitness who could testify in court about it. Our best guess is that Trump likes people to think he's a "rebel" who "doesn't play by the rules." But who knows, really?

  5. ...And Yet Another: As we note above, Walt Nauta and Trump allegedly played a shell game with boxes of documents. The idea was to convince Trump attorney Evan Corcoran, and then the feds, that everything classified had been identified and returned. In truth, boxes were being hidden in various places in Trump's private residence (including a bathroom; more below). On one occasion, Nauta moved dozens of boxes and then told the feds the very next day he didn't know anything about boxes being moved.

    One small problem for Nauta and Trump: The box moving was captured on Mar-a-Lago's security cameras.

  6. Do You Want to Know a (Sensitive) Secret?: Hundreds of classified documents were found in Trump's possession. However, the criminal case is focusing on 31 of those. The indictment, starting on page 28, gives enough details to make clear that those 31 were among the most sensitive documents, and were all related to military matters.

    It was a tactical decision to focus on the juiciest 10% of the documents reclaimed from the former president. Jurors have limited attention spans, and if you ask them to consider 50 or 100 or 200 different, but similar, documents, they are eventually going to have a hard time focusing. Further, including less significant documents opens up the argument, both in court and in the court of public opinion, that the prosecution is focusing on trivialities and is being overzealous. If you keep it to the serious stuff, that's a much harder sell.

    The details in the indictment are deliberately vague, for obvious reasons. For example, none of the countries involved is named (well, beyond the U.S., of course). Still, there is enough information there that past and current military leaders were shocked at the extent of the breach that was revealed yesterday. In addition to Trump, and whatever penalties he might face, the defense establishment expects it's going to take a lot of time to figure out all the damage that was done, and to fix it.

  7. A Pence for Your Thoughts: With the Trump indictment out of the bag, Judge James Boasberg released his ruling in the case filed by Mike Pence, asking to be excused from testifying. It was already known that Pence was required to answer a lot of questions from prosecutors, but now we know he had to answer almost everything. This is not going to help Pence in the estimation of those who feel that the former VP should be falling on his sword to protect Trump. He might well drop to 0.5% support in polls of the Republican primary electorate, down from his current 0.7%. If he is below 1% in all the polls, then he won't make the debate stage and then it is bye, bye Mike.

  8. What else?: It should be clear that the indictment has a lot of oomph. It's also 44 double-spaced pages, which means you can read it in, what, half an hour? Jack Smith says it will take a month to present the full case to a jury. That's not terribly long by the standards of a serious criminal case, but it's also way more than half an hour. Which means there must be oodles of evidence that haven't been made public yet. And note, there aren't many paragraphs out there that have two different words beginning with "oo." Too bad there were no Oompa Loompas drinking oolong tea at Mar-a-Lago while the boxes were being concealed.

    In any event, because some huge percentage of the evidence remains under wraps, the full case against Trump is a mystery to everyone except the people who work with Smith. We think it's fair to say, as we have, that just based on what is publicly known, Trump is in a bad spot. It's also entirely apropos to say, as nearly all Democratic politicians are, that we must be patient and let the process play out. What is total nonsense is to say "There's no case here and this is a witch hunt." Even if you reject the publicly available evidence, there's no way to know that the remaining, still-hidden evidence is not even more damning. That means that anyone who is saying "witch hunt," "conspiracy," etc. is either delusional (Trump) or is a phony (most of the other Republicans who are saying these things).

  9. Heading for the Hills: Right around the time the indictment was unsealed, two Trump lawyers, who have taken the lead in representing him in this matter, quit. They are Jim Trusty and John Rowley, who have often been in court in Washington, DC, as various questions were adjudicated.

    The one thing that is certain is that the case is either at, or very close to, the point of no return for Trump's counsel. Sometime very soon, Trump's lawyers will not be able to withdraw from the case without permission from the judge. The stated reason for the departures was that Trusty and Rowley are Washington-based, and not in a position to handle a Florida case. That may be true, although the lawyer already named as one of their replacements, Todd Blanche, is based in New York.

    If geography is not the reason for their departure, or is not the only reason, then all we can do at this point is speculate as to what happened. Did Trump fire them in a fit of pique? Did he stiff them on their bills? Were they tired of him screwing up the case by saying stupid things in front of a national audience and/or to someone with a recording device? Just about anything is possible.

  10. The Photograph: The indictment contains numerous photographs that show the haphazard and non-secure manner in which documents were being stored. This one is from page 12:

    30 or so boxes of
document in a bathroom at Mar-a-Lago

    Can you imagine a photo that better captures the absurdity and the Trumpiness of this situation than this one? The fake gold fixtures. The tacky mirror. The two chandeliers, one for the room, and one for the toilet. And the boxes and boxes of documents, where anyone could theoretically walk up and grab a handful to peruse. Was this just a convenient spot with lots of storage space? Or was Trump making bathroom reading out of the nation's military secrets? If it's the latter, that would be quite ironic, since he famously didn't bother to read the stuff when he was actually president.

That's the latest. If any politician has any unfavorable information they know is going to be made public eventually, this weekend would be the time to leak it, since Trump's indictment is going to dominate the news for a good while. "Sen. Menendez admits he did take bribes," for example, is probably a page nine story if comes out next week. (Z)

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