A good day!

September 22, 2022.

          A half-dozen major stories broke on Wednesday. Together, they reinforce the rule of law and confirm the renewed strength and righteousness of American foreign policy under Joe Biden’s leadership. It was a good day for those who have kept faith in the belief that despots and fraudsters ultimately face a reckoning. Today, that reckoning grew perceptibly closer. All Americans should take hope from the rapid-fire developments.

          Each story is worthy of extended analysis on its own, something beyond the scope of today’s newsletter. But let’s get started with a list of stories that will remain with us for the long term.

1.     The 11th Circuit Court of Appeals issued a stinging repudiation of Judge Cannon’s nonsense order prohibiting the DOJ from using classified documents that belong to the United States to investigate Trump’s espionage.

2.     New York Attorney General Letitia James filed a devastating civil lawsuit against the Trump family and Organization that threatens to end the ability of the Trump family to conduct business in New York.

3.     The House passed legislation reforming the outdated Electoral Count Act; if passed, the reform will make it more difficult for MAGA extremists to manipulate the constitutional process for selecting and counting presidential electors.

4.     The January 6th Committee announced another public hearing on September 28, 2022; Bennie Thompson said the Committee will present “a lot of information that we have collected over the last year that we've not shown the public.” The Committee will interview Ginni Thomas (spouse of Supreme Court Justice Clarence Thomas).

5.     President Joe Biden addressed the General Assembly of the United Nations and delivered a speech condemning Russia’s war in Ukraine, a speech that the Secretary General of the UN could have—and should have—given.

6.     Russian President Vladimir Putin took to the airwaves to announce a “partial mobilization” (read: conscription) that signaled his increasing sense of desperation and dwindling options.

Let’s take a look at some of these stories.

The 11th Circuit grants DOJ’s request for a stay of Cannon’s order.

          A three-judge panel of the 11th Circuit issued an opinion that repudiated Judge Cannon’s order regarding classified documents. The opinion is here: Opinion of the Court, Case: 22-13005. If you feel inclined to read the court’s opinion in the original text but do not have a legal background, I recommend that you begin reading on page 18 of 29 (in the PDF numbering at the top) and read through page 22, then pick up at the bottom of page 27 through 29.

          There are several notable aspects of the opinion:

• The opinion is signed “Per Curiam,” (meaning, “For the Court”). The designation means that the three judges on the panel give their full concurrence to the rationale and outcome of the opinion.

• The panel was composed of two Trump appointees and one Obama appointee. (This factor should give some comfort to those who fear that all Trump appointees are unapologetic Trump loyalists.)

• The panel’s opinion repudiates Cannon’s order at every level and on every point. Indeed, it appears that the panel went out of its way to instruct Judge Cannon on the history and law of classified documents. (As Andrew Weissmann said on MSNBC, “The panel used the big crayons to school Judge Cannon.”)

• The tone of the opinion bordered on incredulity over the nonsense arguments advanced by Trump’s team and their refusal to assert definitive legal positions or provide evidence to support their legal arguments. (“Plaintiff resisted providing any evidence that he had declassified any of these documents” and “The declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”)

• The panel went out of its way to reject Cannon’s unfounded assertion that Trump is entitled to special consideration because of (alleged) unique injury to Trump’s reputation as a former president. (“If the mere threat of prosecution were allowed to constitute irreparable harm . . . every potential defendant could point to the same harm.”)

• The panel accepted the uncontested sworn testimony from the FBI and DOJ regarding the threat to national security posed by the documents—declarations that Judge Cannon refused to credit because of her apparent mistrust of the FBI and DOJ.

          It is difficult to convey the extraordinary rebuke delivered by the 11th Circuit to Judge Cannon. In legal terms, the 11th Circuit concluded that Judge Cannon “abused her discretion” in prohibiting the DOJ from using classified documents in its criminal investigation of Trump. “Abuse of discretion” is the most difficult standard of review to overcome—but the panel’s opinion makes clear that the DOJ cleared that hurdle easily.

          What happens now? Judge Dearie will continue his review of the non-classified documents. We should expect that process will turn out badly for Trump. And then . . . sometime in 2023, we should expect an indictment of Trump for espionage.

          A reader asked in the Comments section yesterday whether the crime of espionage requires an intent to share the defense secrets with another party. It does not. Under Subsection (d) of the 18 USC § 793 (Espionage Act), if a person lawfully obtains possession of information harmful to the security interests of the United States (if disclosed), the person is guilty of espionage if he “willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it."

          Thus, under the Espionage Act, there is no requirement of an intent to share the information with anyone. Continued possession of defense secrets after a demand for their return is espionage. That is why the DOJ will indict Trump.

New York civil lawsuit against Trump Organization and family members.

          New York Attorney General Letitia James filed a civil lawsuit against the Trump Organization and the Trump family members who control that organization, i.e., Trump, Ivanka, Eric, and Don Jr. The lawsuit is included in Law & Crime, here: New York AG Letitia James Sues Trump, Family for Fraud. If you not inclined to read the entire 225-page complaint but want to take a deep dive, I recommend Just Security, Has a Trump Tipping Point Been Reached? Analyzing The NY Attorney General’s Case Against Trump.

          James filed a sprawling and detailed complaint that threatens the existence of the Trump business empire. With so much ground to cover, I will focus on the following: (a) the penalties sought; (b) a few example of the detailed allegations, (c) the presentation by Attorney General James announcing the lawsuit, and (d) the prospects for a criminal indictment by other law enforcement agencies.

          Penalties sought. The lawsuit seeks the “corporate death penalty” in New York, including “canceling corporate certificates without which the businesses cannot operate, appointing an independent monitor, barring Trump and the Trump Organization from doing loan, real estate and other transactions relating to New York for five years, permanently barring Trump, his adult children and other defendants from serving as officers or directors of New York businesses.”

          Examples of fraud.

• Trump’s apartment in NY was approximately 10,000 square feet, but he claimed in his financial statement it was 30,000 square feet. That financial statement was later used to obtain loans.

• Trump purchased undeveloped land in Scotland for $12 million; eight years later, he claimed the land was worth $435 million. An appraisal valued the land (if developed) at $21 million.

• Trump purchased a golf course on the coast near Los Angeles. He granted a conservation easement to the state. An appraisal valued the golf course at $18 million, but when Trump claimed a tax deduction for the easement, he claimed the property was worth $25 million. The inflated value reduced his taxes to the IRS by millions of dollars.

There is more—as in 200 pages more. AG Letitia James has the goods on Trump and the complaint sent that message loud and clear.

          Presentation by AG Letitia James. The presentation by Letitia James was magnificent. As one reader noted in the Comments to yesterday’s newsletter, “The care and precision of her language while still permitting her indignation and passion to be seen was just awe-inspiring.” She was somber but righteous as she described a decades-long criminal enterprise. Most importantly, she made her case to the American people in a way that way will resonate with their sense of fairness and justice. She said,

For too long, powerful, wealthy people in this country have operated as if the rules do not apply to them. Donald Trump stands out as among the most egregious examples of this misconduct. With the help of his children and senior executives at the Trump Organization, Donald Trump falsely inflated his net worth by billions of dollars to unjustly enrich himself and cheat the system. . . . Mr. Trump thought he could get away with the art of the steal, but today, that conduct ends. There are not two sets of laws for people in this country; we must hold former presidents to the same standards as everyday Americans. I will continue to ensure that no one is able to evade the law, because no one is above it.

          Referral to federal agencies for criminal investigation. AG James said that her office had referred her findings to the US Attorney’s Office in NY and to the IRS. Given the detailed findings included in the complaint, it would be a dereliction of duty by both organizations if they decline to prosecute.

Biden’s speech to the UN.

          President Biden addressed the UN General Assembly on Wednesday. The speech was important, in part, because Biden directly addressed the threats to international peace and security posed by Russia. In an earlier speech by UN Secretary-General António Guterres, the threat from Russia was not mentioned and the war in Ukraine was barely mentioned. See Secretary-General's address to the General Assembly.

          In contrast, Biden directly confronted and condemned Russia’s aggression and threat to world peace. See NYTimes, Biden Paints Russia as a Threat to the World in U.N. Speech - The New York Times. (As a point of comparison, Trump did not mention Russia in his last speech to the UN General Assembly.)

The NYTimes said of Biden’s speech,

           The scope and scathing nature of Mr. Biden’s attacks on Mr. Putin were startling; they appeared to be the most direct and sustained focus on a single adversary by an American president at the United Nations since 2002 . . .

          Biden warned Putin directly that “no one wins a nuclear war.” In making that statement, Biden was reacting to nuclear saber-rattling by Putin in a speech to the Russian people only hours earlier. Read on!

Putin’s speech to the Russian people announcing partial mobilization.

          Putin addressed the Russian people on Wednesday morning in a speech that is being widely viewed as an act of desperation. Indeed, Biden called the partial mobilization a “desperate act” in response to battlefield defeats in Ukraine. The war in Ukraine is increasingly unpopular in Russia and mobilizing (or “drafting”) three-hundred thousand Russian will not increase that popularity. Indeed, media reports suggest that the announcements led to a rush of flights out of Russia and scattered protests across that country.

          Much attention is being given to Putin’s not-so-subtle threat to use nuclear weapons. Threats of nuclear war should always be taken seriously, but Putin’s statements were carefully crafted and do not explicitly threaten to use nuclear weapons if the contested regions in Ukraine are attacked. For an excellent analysis of the threat made by Putin, see Institute for Study of the War,  Russian Offensive Campaign Assessment, September 21. The ISW writes, in part,

Putin emphatically did not say that the Russian nuclear umbrella would cover annexed areas of Ukraine nor did he tie mobilization to the annexation. . . . Putin framed his comments about the possibility of Russian nuclear weapons use in the context of supposed Western threats to use nuclear weapons against Russia. He claimed that Western officials were talking about “the possibility and permissibility of using weapons of mass destruction—nuclear weapons—against Russia.

          So, while we should not assume that Putin is bluffing, we should also be accurate about the provocation for nuclear war articulated by Putin, i.e., Western threats to use nuclear weapons against Russia.

Concluding Thoughts.

          I have covered a lot of ground (and did not mention two important stories), but in the interest of relative brevity, I will defer some discussion to later newsletters. The legal developments are coming at us at a dizzying pace. But a careful observer will note that on average, Trump is losing ground and becoming increasingly desperate. In an interview with Sean Hannity on Wednesday he claimed he could declassify documents in his mind just by “thinking about it.” He also said the FBI might have been looking for “Hillary’s emails” at Mar-a-Lago!

          Trump’s lurch to the ugliest extremes of his base is a sign of desperation, not strength. Juliette Kayyem makes this point in her essay in The Atlantic, Trump Endorsed QAnon Because He’s Stuck. Kayyem writes of Trump’s outreach to QAnon,

          He’s grasping at straws, not solidifying his political base. . . . By throwing in his lot with a bizarre cult, he is also inadvertently showing the limits of his appeal.

          It feels like we have been saying forever that “This is the thing that will bring down Trump.” But it is undeniable that he is weakened, on the defensive, and flailing in a way that is embarrassing for him and damaging to the GOP. That may be enough. We may not need to see Trump behind bars in order to relegate him to political obscurity.

          We should find these developments encouraging and motivating. They are encouraging because they increase the “Trump fatigue” among some of his supporters—which may be enough to make a difference in close races. They should be motivating because they remind us of the of the breadth and depth of Trump’s criminality. The good news is that we now have competent prosecutors and honest judges rising to defend the rule of law. We cannot ask for more.

          These developments are also encouraging because campaigning in this environment is hard. Doing so when Trump is evading justice would be demoralizing. Doing so as Trump is finally being held accountable allows us to look forward with hope and optimism. Trump’s legal problems guarantee us nothing in the 2022 midterms, but they certainly make it easier for us to give our all for the next forty-three days!

          Talk to you on Monday! Enjoy the weekend!