Dem 51
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Here Comes the Arraigned Again

Feel free to channel Eurythmics as you read today's headline. As everyone knows at this point, Donald Trump will be in court today to be arraigned in the documents case brought by special counsel Jack Smith. Naturally, this story is dominating the news. So, we're going to run down the main storylines from Monday.

To start, Aileen Cannon may already be the most famous trial judge in America since Lance Ito. The New York Times has learned that she was randomly assigned to the case, and that there are currently no plans to replace her with someone else. Given her standing-on-her-head, Trump friendly rulings earlier in this case, there is now a cottage industry in thought pieces about how she could wreck the whole case if that is what she is determined to do (see here here, here, and here, for examples).

That said, we've already observed that it's too soon to reach conclusions. Cannon may well recuse herself, either at the "suggestion" of Chief Judge Cecilia Altonaga, or of her own volition. If she keeps the case, she may work to keep her nose clean, knowing that the eyes of the world and of the judicial establishment are upon her. After all, as someone in her early 40s, she undoubtedly aspires to climb the rungs of the federal judicial ladder. And if she's got a reputation as the most lawless judge in the federal system, that won't be so easy to do. Unless, of course, she helps Trump dodge the bullet and he wins the election and appoints her to the Eleventh Circuit Court. That's a big gamble, though.

Alternatively, as Norman L. Eisen, Richard W. Painter, and Fred Wertheimer, writing for Slate, point out, there are ways Cannon could be removed from the case involuntarily. Altonaga could reassign the case, or federal prosecutors could ask the Eleventh Circuit to step in and remove her, either before the case or after she makes a dubious ruling. In the end, there are significant reasons Cannon should not be on the case. Further, nearly all judges are worried about maintaining the courts' reputation for fairness, and as many have pointed out this weekend, there is literally no outcome in this case that doesn't have tens of millions of people questioning Cannon's integrity.

One other thing worth pointing out is that Cannon sits in Ft. Pierce, FL. It is possible that Altonaga, federal prosecutors, or the U.S.S.S. could move that the trial be moved to Miami (about 120 miles south), either due to ease of access (there are far more flights to Miami than to Ft. Pierce) or for security reasons. Such a request might be legitimate, or it might be a means of giving Cannon an "out" wherein the storyline isn't "Cannon is too untrustworthy to handle this case."

Moving along, David Aaron is a former federal prosecutor. Writing for Just Security, he decided to have some fun (?) and try to figure out how many years in prison Donald Trump is actually facing. Naturally, there are a lot of X-factors here, including how many charges Trump might be convicted on, which of those charges he's convicted on, whether he's deemed to have had a "leadership role" in the scheme, whether he engaged in obstruction, and whether he takes responsibility for his behavior. There's also the rather large question of whether any penalties would be served concurrently or consecutively.

You can read the whole analysis for yourself, if you wish, but the executive summary is that if he gets popped on the 31 most serious counts, and every aggravating factor goes against him, he's looking at something like 22 years per count. If he gets popped on the least serious counts, and every mitigating factor goes for him, he's looking at something like 3 years per count. In other words, even at the lower end, he's playing with fire. And at the higher end, well, it basically doesn't matter if the sentences were to run concurrently or consecutively, as either alternative would produce the same basic outcome.

In addition to the mechanics of the case, there were also developments on the political front. As you will recall, nearly the entire GOP primary field greeted the news of the indictments with some variant of "I'm disgusted that the DoJ is being weaponized in order to persecute an innocent man." That includes Nikki Haley and Sen. Tim Scott (R-SC). It would seem that duo has had a (partial) change of heart.

Haley, for her part, is basically trying to have it both ways. She appeared on Fox (naturally), and reiterated that the FBI and the DoJ have "lost all credibility with the American people." Then she immediately turned around and decreed: "If this indictment is true, if what it says is actually the case, President Trump was incredibly reckless with our national security." We are confused. If the indictment is the work of the DoJ, and the DoJ no longer has any credibility, then how could the indictment possibly be true?

Scott is also trying to have it both ways, although he's ever so slightly less clumsy about it than Haley. His view, expressed at campaign events over the weekend, is that there's a "double standard" when it comes to Republicans/Democrats and the justice system, but that "this case is a serious case with serious allegations." Again, we are confused. Either the case is serious and Trump is rightly being held to account, or it's not and he's being treated unfairly. We suspect that Anthony Weiner (D-NY), Corrine Brown (D-FL), Chaka Fattah (D-PA) and Jesse Jackson Jr. (D-IL), all of whom have been convicted of crimes in the last decade, would be able to give some insight as to whether or not the DoJ only goes after Republicans.

What is behind Haley's and Scott's mealy-mouthed flip-floppery? Maybe it's something in the water in South Carolina. After all, Sen. Lindsey Graham (R-SC) is the king of this sort of chameleonry—changing one's colors on a dime, and in such an obvious and ham-fisted manner. However, we suspect the explanation is that the wannabe presidents have seen some of the polls that came out this weekend. For example, this one from CBS News that reveals that just 38% of Republican primary voters think Trump's keeping the documents was a national security risk, whereas 80% of the rest of the country feels that way. Obviously, you need the Republican primary voters to get the nomination if you're Haley/Scott, and you need some meaningful portion of the rest of the country to win the presidency, which leaves these would-be GOP presidents trying to accommodate two radically different points of view on this issue. We do not think they will be successful.

And that's the way it is. Trump will be in court today at 3:00 p.m. ET; undoubtedly, whatever happens, that story will be our lead item tomorrow. (Z)

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