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Leave Trump Alone (Because It Does not Matter)
The narrative is set. Everything between now and November 2024, absent an actual alien intervention, is filler material.
Trump will ride his narrative to the polls, campaigning even if in hand cuffs and an ankle monitor. He is, he will make clear, the victim of a Democratic plot to weaponize “justice,” dating back to 2016 when Hillary was let off scot-free for her email shenanigans, followed by the FBI’s concocted Russiagate, two impeachments, and now a carousel of indictments. His opponent is Joe Biden, older than Yoda but presenting more like Jar Jar, crooked in cahoots with his scum bag son to hard suck bribe money out of eastern Europe. Sleepy Joe’s narrative is to count on the same FBI going after Trump with both barrels to shuffle its feet investigating him and Hunter through the election, with a final surge under the slogan “Oh who cares, I’m not Trump!” to wrap things up. It’s all a rich tapestry.
The problem is it is compelling; there is a lot of truth underneath the showmanship. There was David Petraeus, Obama’s CIA Director, who leaked secret docs to his girlfriend, and Sandy Berger, Clinton’s NSA Director, who stole secret docs. But it was Hillary who did get away with it all, at the FBI’s discretion (so much for one law for everyone) what Trump has been accused of in Mar-a-Lago. Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.”
Clinton and her team destroyed tens of thousands of emails, evidence, as well as physical phones and Blackberries which potentially held evidence — obstruction as clear as it comes. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. A server in a closet is not as dramatic a visual as boxes of classified stored in a shower room, but justice is supposed to be blind. More recently, what of Mike Pence and Joe Biden, both of whom have escaped indictment so far on similar charges of mishandling classified information. Trump voters know if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. No matter which candidate wins and loses, DOJ’s credibility is tanked.
The Stormy Daniels case, and the guilty finding in the Jean Carroll defamation case, reek of politics. Neither case would have seen daylight outside of Democratic hive New York, and neither could have held up outside a partisan justice system that permits it to ignore Jeffrey Epstein’s death in custody or a city in a crime tornado (New York in the past year reduced 52 percent of all felony charges to misdemeanors, opposite of what was done to Trump) while aggressively allowing the system to pursue a decades-old rape case of dubious propriety.
Witch hunt meet Hunter. New York District Attorney Alvin Bragg ran for office on the promise to prosecute Trump. He fulfilled a campaign promise and paid off his George Soros-connected backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies in the Stormy case.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.”
Calling it all a witch hunt is just a starting point. The point here is not innocence; it is whether the justice system is going to take fact sets and ignore one while aggressively pursuing another, risking being seen as partial and political. No matter which candidate wins or loses, credibility is tanked.
Still to come (at the least) are whatever judicial actions will emerge from the Special Prosecutor over Trump’s role in January 6, and legal action over the 2020 Georgia vote count (with another Democratic openly anti-Trump prosecutor.) Trump jokes in his stump speech nowadays every time he flies over a Blue State he gets another subpoena. He could easily head into the Republican convention to accept the nomination with multiple convictions and/or indictments on his shoulders. It won’t matter. The justice system is going to take fact sets and ignore some while aggressively pursuing others, partial and political plain as day. No matter which candidate wins, credibility is tanked. It grinds that most of the serious charges against Trump are under the hoary Espionage Act, seen by many as reviving the now-discredited trope Trump was a Russian agent.
Mostly overlooked for now is how much of the apparent evidence against Trump at Mar-a-Lago came from his own attorneys. Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel Trump’s lawyers to give evidence against their own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. But Trump’s supporters are unlikely to read deeply into the case law; all they’ll see is what looks like strong-arm tactics by the Department of Justice. No matter which candidate wins and loses, DOJ’s credibility is tanked.
The thing is no one has to work very hard to convince Trump supporters of the truth of what he is saying, that he is the victim. Trump support remained unmoved by the many investigations that plagued his presidency. Even during peak crises, views of him were static. Post-presidency polls continued the trend. Public opinion of Trump remains remarkably stable, despite his unprecedented legal challenges, and about half of Americans do not see his behavior as disqualifying, sharper if you divide along partisan lines. When asked if Trump’s legal troubles would impact their views of him, two-thirds of his supporters said it would not make a difference. That’s a committed bunch. Perhaps just as important, 57 percent of voters, including one-third of Democrats, said the indictment in New York earlier this year was politically motivated.
No one can say who will win in November 2024, but one loser is certain, faith in the rule of law by a large number of Americans. They will leave the polls certain the system was bent to “get” Trump, either saddened by the fall of blind justice or saddened that it did not work and Trump remined a powerful figure with a large movement behind him, either in or out of the Oval Office.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Indictments over Classified. Not Biden, and Not Pence. So Why Trump?
Donald Trump is the first president in history to be indicted for Federal crimes, in this case a series of eight charges each with multiple counts totaling 37 centering on his taking highly classified materials with him to Mar-a-Lago from the White House in January 2021. The charges also implicate Trump and a close aide, Waltine Nauta, in a conspiracy to hide the documents in whole or in part from the National Archives (NARA), the Department of Justice (DOJ), and his own legal team, and making false statements along those same lines.
Hundreds of documents are of concern, classified at the highest levels with origins at CIA, NSA, and elsewhere in the intelligence community. While leaks and speculation prior to the unsealing of the indictment suggested this was a routine Espionage Act case, i.e., you have possession of some classified documents and thus must be guilty, the indictment lays out a damming parallel set of evidence for obstruction, including a suggestion that Trump was prepared to have his lawyers shred some of the offending documents.
Though Biden’s handling of classified remains an active investigation, Mike Pence was recently absolved of any criminal intent in his own mishandling of secret paper. Many people believe the same result will come of the Biden case. What makes Trump’s case so materially different that the Special Prosecutor is prepared to throw the book at him and his aide?
The key seems to be the egregiousness of Trump’s actions coupled with his attempt to cover up his actions. Lawyers call it an “aggravating factor,” making clear the charged actions were not accidental. It looks like they may have it.
The indictment shows in great detail efforts Trump made to conceal the documents both from NARA and the DOJ, and from members of his own legal team. Dozens of boxes containing mementos and paperwork from his administration were assembled by Trump over his four years in the White House. These included, all mixed together, everything from newspaper clippings to notes from Kim Jong Un to highly secretive war plans aimed at Iran. These boxes were transported to Mar-a-Lago by commercial means, itself a violation of numerous security regulations. Within Mar-a-Lago the documents were not always kept under lock and key, at one point being piled on the stage in one of the ballrooms (a photo of this is included with the indictment; another included photo shows boxes spilling classified documents onto the floor of a storage room, and a third showing the boxes in a shower room.) There is evidence to suggest Trump instructed his staff to better hide some of the documents from his own lawyers when they undertook a search in response to a NARA subpoena, and then again ahead of the FBI search of Mar-a-Lago. This may have led to Trump losing two lawyers just hours after being indicted, as Jim Trusty and John Rowley announced they’d resigned.
Further under the heading of egregiousness, the indictment suggests a tape recording exists of one of at least two instances where Trump showed off the documents to people without security clearances. In the tape Trump admits the document at hand is classified, and in a schoolboy-like way says he should not be showing it to a writer, a publisher, and two Trump staffers. Trump acknowledging that he knew a document in his possession was still classified stands at odds with his public claims that he had declassified all the materials he took and likely removes this defense strategy from the upcoming trial.
The indictment further claims Trump obstructed the investigation into his handling of classified materials in a number of ways, to include telling his attorneys to claim he did not have the documents subpoenaed, directing his aide Nauta to move boxes to conceal them from his own lawyers, and then from the FBI/DOJ and then from the grand jury, suggesting his lawyer destroy some of the documents, claiming he was cooperating fully when he was actively concealing documents from disclosure, and submitting a false certification that all requested document had been submitted. Nauta is listed as a co-conspirator on most of those allegations, with phone records and internal surveillance tapes connecting statements made and actions taken by the two men.
Trump also appears to have used the boxes moving like a shell game to hide information from Christina Bobb, who was serving as the formal custodian of records. The indictment makes clear she did not know the statements in her attestation that everything had been turned over to the DOJ were false, and she has not been charged.
The indictment also claims Trump helped to pack boxes at the White House, which rebuts a common defense in these sorts of cases, that the retention of documents was a clerical error by staff and not intentional.
While understanding the contents of the indictment give only one side of the story and that Trump will defend himself when the case comes to trial likely in the spring, the evidence available seems significant. Trump clearly possessed classified documents outside proper storage areas, and “injury to the United States,” a requirement of the law, should be fairly easy to prove given the dramatic nature of some of the documents and the casual manner in which Trump handled them, to include showing off war plans to a writer and publisher. This part of the case follows standard lines in an Espionage Act prosecution. Trump’s actions appear to go well beyond anything Mike Pence did with his classified or anything that Biden has so far been accused of.
However, it is the charges of obstruction which are most significant in this case. One of the key elements of obstruction is proving a state of guilty mind — mens rea — and that will be the crux of the actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to obstruct some investigation? A jury might find Trump’s actions alone speak to intent, his active attempts to hide physical boxes of documents from first his lawyers and then investigators, for example.
But the joker in the deck is Waltine Nauta, Trump’s close aide who is charged alongside Trump on the obstruction and lying allegations. Nauta faces potentially decades in jail, serious time. It appears his being charged may be an attempt to get him to testify directly to Trump’s intent and state of mind, by recalling actual instructions and conversations. If Nauta accepts some sort of plea deal in return for such testimony, it is hard to see a jury letting Donald Trump off on these charges. But where things go after that, politics-wise, is anybody’s guess at this early stage.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Indicted
What would you have done if you were Alvin Bragg? Would you have indicted Donald Trump? Or would you have walked away, concerned about accusations you as a Democrat were playing politics, and more concerned the indictment would somehow help the man you are trying to take down? You don’t play with such fire around a guy like Trump casually.
At Bragg’s insistence, Trump was indicted by a Manhattan Grand Jury on Thursday. The actual charges will not be announced until Trump is arraigned before a judge, likely in about a week. The charges will however be based around Stormy Daniels, who allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. She willfully violated the NDA to revive her career and profit selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now disbarred former lawyer Michael Cohen, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of New York business records law (a misdemeanor) and Federal campaign finance law (potentially a felony.) If this all sounds complicated, it’s because it is. No wonder even the Washington Post labeled this a “zombie case.” It is also the weakest case in the universe of legal troubles around Trump.
But there is a bigger question: if you were Bragg, can you win? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, prosecuting a Federal case locally in Manhattan? Candidate Trump, surrounded by an aura of legal invincibility, is already earning partisan points claiming he is the victim of banana republic politics, and this indictment will allow him to claim he was right all along. Trump will fire both barrels, one aimed at Bragg, the other likely at Biden (who he will accuse of playing a role.) He was already the victim of partisan use of justice, as the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Alvin Bragg through his indictment just reelected Trump to the White House as a sympathy candidate. CIA spooks, no strangers to manipulating elections abroad, call that blowback, and it is a real threat in this instance.
For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Bragg will have to address the case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine.
In addition, those who claim Trump’s indictment is not political in nature will also have to account for the non-actions against the Obama campaign. Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
There is also the case of John Edwards. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011, on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign. Sound familiar?
Specifically, the government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
The other fear which should have held Bragg back is that business records mismanagement and even campaign finance violations are typically dealt with either via administrative penalties and fines (Trump will not go to jail for any of this.) Most of the laws Trump may have broken require some sort of intent to do wrong. In other words, Trump would have had to have taken the steps with Stormy not just for ego or his presidential library or as some crude souvenir of virility but with the specific intent to commit harm. Proving a state of guilty mind — mens rea — will be the crux of any actual prosecution. What was Trump thinking at the time. “It should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.
The final questions are probably the most important: Bragg knows what the law says. If knowing the chances of a serious conviction are slight, why would he take the case to court? Then again, if knowing the chances for a serious conviction are slight, why would he have gone to the Grand Jury at all, his predecessor and the Department of Justice having passed on this case. No one is above the law, but that includes politics not trumping clean hands jurisprudence as well.
If Bragg successfully navigates the politics, if he proves his case in court, then what? Trump’s “crimes” are minor. Could Bragg call Trump having to pay a fine or even do some sort of community service during the 2024 campaign a win? It seems petty, as even a conviction would not disqualify Trump’s bid for the White House (Eugene Debs ran for president while locked up.) Controversy is home turf for Trump; he is clearly again the center of attention and the dominant figure in his party. It sure seems Trump wins politically big-picture whether he wins or loses at court. If you were Alvin Bragg, how would you answer accusations of the weaponization of the legal system to advance a political agenda?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Five Stages of Mar-a-Lago Grief
Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.
Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.
The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.
Denial: Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”
Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.
Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.
Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.
Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.
The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.
Maybe next time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
That Indictment: A Lot of Not Very Much
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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