A tale of two speeches.
September 6, 2022
There are two big stories to discuss: (1) The dueling speeches by President Biden and twice-impeached former President Trump and (2) the order by federal judge Aileen Cannon approving Trump’s request to appoint a special master. Although the respective speeches by the current and former presidents will prove to be the most important and enduring story, my inbox is smoking with red-hot emails from readers who are angry about the appointment of a special master, so let’s start there.
Judge Aileen Cannon’s decision to appoint a special master will live in disgrace in our nation’s jurisprudence, and readers have cause to be angry and disillusioned. But let’s take a few steps back to consider the consequences of the decision. In attempting to inject a note of perspective, please don’t misread my intention. I have plenty of negative things to say about the judge’s rationale, competence, and lack of good faith.
In short, the judge’s decision changes almost nothing. Last week, I wrote:
It is becoming increasingly likely that Donald Trump will be indicted for espionage and obstruction of justice—largely because Trump continues to incriminate himself on his vanity media platform. Former Fox “news” commentator Judge Andrew Napolitano made that point in an op-ed in the Washington Times—which is traditionally a Trump-friendly source. (Don’t confuse the Washington Times with the Washington Post.) Napolitano wrote the following:
It gives me no joy to write this piece.
Even a cursory review of the redacted version of the [FBI] affidavit . . . reveals that he will soon be indicted by a federal grand jury for three crimes.
Nothing that Judge Cannon did in her order today changes the above analysis. Has she slowed down the investigation? Maybe, maybe not. The DOJ is not going to indict Trump before the midterms for theft of government documents because it is still early in its investigation, and DOJ policy discourages indictments within 60 days of an election. And although the decision is wrong and odious, the DOJ can proceed with the special master route now and challenge Judge Cannon’s decision at its leisure. Overturning her rationale is vital for the rule of law, but it need not delay the determination of privilege by a special master. The stolen defense secrets are not privileged; instead, they are the object of the crime and evidence of its commission.
The special master fight will be an ugly slog that will keep Trump’s theft of government documents on the front page for months and years. If Trump had not challenged the search, the DOJ would have gone quiet until it issued an indictment a year or two hence. Even appeals to the Eleventh Circuit and the Supreme Court will keep Trump’s treason on the front pages.
Now, on to the decision itself, which is here: Order dated 09/05/2022.
By far, the most damaging, untethered, and dangerous aspect of the opinion is the assertion that Trump is entitled to relief because the search warrant inflicts a “special stigma” on a former president. Judge Cannon writes:
As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
Got that? Judge Cannon believes Trump is entitled to a different standard of justice than “ordinary” Americans because he is a former president. Nonsense! See, for example, the Fifth and Fourteenth Amendments to the Constitution. The Fifth Amendment provides that “No person shall be deprived of. . . property, without due process of law” and the Fourteenth Amendment provides “nor shall any State . . . . deny to any person within its jurisdiction the equal protection of the laws.”
Neither amendment offers special consideration to former presidents, who are included within the ambit of “no person” and “any person.” As such, they are treated equally under the Constitution as every other American. See also US v. Nixon, 418 US 683, 715 (1974) (“[Chief Justice] Marshall’s statement cannot be read to mean in any sense that a President is above the law.”)
There are dozens of errors in Judge Cannon’s analysis. I cannot do them justice in this newsletter. But if you are interested in the details, see Neal Katyal’s Twitter thread or the essay by Charlie Savage in the NYTimes, ‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry. Per the experts interviewed by Savage,
This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at the University of Texas.
“This would seem to me to be a genuinely unprecedented decision by a judge,” Mr. Rosenzweig said. “Enjoining the ongoing criminal investigation is simply untenable.”
A specialist in separation of powers, Peter M. Shane, who is a legal scholar in residence at NYU, said there was no basis for Judge Cannon to expand a special master’s authority to screen materials that were also potentially subject to executive privilege. . . .
“The opinion seems oblivious to the nature of executive privilege,” he said.
There are two ways to look at Judge Cannon’s decision. The first is to assume she is unfamiliar with the Constitution, especially Articles II and III, and has no understanding of the limitations on her role as a federal judge, the purview of a special master, or the interests of the American people in national security. Alternatively, she doesn’t care about any of the above.
Judge Cannon graduated from the University of Michigan Law School, worked for a global law firm, and served as an assistant US Attorney. A reasonable interpretation of the decision is that she is another in the seemingly endless line of Federalist Society members who value partisan ideology over the Constitution. But I will await additional commentators to weigh in before taking a firm stand on that question.
One reader suggested a silver lining to Judge Cannon’s decision: “When the special master concludes that what the filter team did was fine, it insulates the Justice Department.” Good point!
The maddening unfairness of yet another seeming “Trump exception” to the rule of law is dispiriting and upsetting. Not to worry! Trump stole national defense secrets on his way out the door, concealed that fact, and then lied about it when caught. There is no innocent explanation for his conduct, and there is nothing a special master can do to prevent the DOJ from indicting Trump. Delay? Maybe. Prevent? No.
A tale of two speeches.
Last Thursday, President Biden gave a speech identifying Trump and MAGA Republicans as a threat to democracy. Two days later, Trump gave a speech in Pennsylvania that proved Biden’s words to be true. Trump is incapable of self-control and the direct attacks by Biden have put him over the edge—which is exactly where Democrats want Trump in the run-up to the midterms. Biden responded on Monday by attacking Trump again by name.
There are many ways to describe the dynamic of the dueling speeches, but David Frum summed it up best in his Atlantic article, Biden Laid the Trap. Trump Walked Into It.
For the 2022 election cycle, smart Republicans had a clear and simple plan: Don’t let the election be about Trump. Make it about gas prices, or crime, or the border, or race, or sex education, or anything—anything but Trump. Trump lost the popular vote in 2016. He lost control of the House in 2018. He lost the presidency in 2020. He lost both Senate seats in Georgia in 2021. Republicans had good reason to dread the havoc he’d create if he joined the fight in 2022.
Biden came to Philadelphia to deliver a wound to Trump’s boundless yet fragile ego. Trump obliged with a monstrously self-involved meltdown 48 hours later. And now his party has nowhere to hide. Trump has overwritten his name on every Republican line of every ballot in 2022.
Frum’s description of a “monstrously self-involved meltdown” does justice to Trump’s two-hour narcissistic orgy that left only minutes for remarks from Dr. Oz and Doug Mastriano. But they probably wanted to exit the stage as quickly as possible after Trump attacked Pennsylvania’s largest city—Philadelphia—for its “all-time murder record” in 2022.
Trump said many truly bizarre things during the speech—including reprising the “Pocahontas” attack on Elizabeth Warren, claiming that the FBI planted evidence at Mar-a-Lago, calling for the death penalty for drug dealers, and calling for a ban on electric vehicles. But perhaps the most bizarre was his claim that he “met with Mark Zuckerberg last week at the White House.” See Upprox, Trump Was So Amped Up And Said So Many Wacky Things In His Speech Last Night That ‘Adderall’ Was Trending For Hours Afterwards.
And Trump saved special bile for the FBI and DOJ, saying:
The FBI and the Justice Department have become vicious monsters, controlled by radical left scoundrels, lawyers and the media, who tell them what to do.
Joe Biden shows no signs of letting up against Trump. See President Biden Lambasts Republicans in Labor Day Speech Ahead of Midterms (yahoo.com). That tactic is both the right thing for our democracy and the right thing for Democrats heading into 2022.
Trump has not hit bottom—and has signaled that he is willing to go to a very dark place in his war with Joe Biden. Other speakers at Trump’s speech on Saturday had family connections to January 6th defendants, some of whom espoused neo-Nazi propaganda. See The Independent, Speakers at Pennsylvania Trump rally tied to January 6 rioters and neo-Nazi.
If Republicans hoped Trump would not be on the ballot in 2022, Trump is doing everything he can to dash their hopes. As Biden said in response to a heckler on Monday, “Look, everybody’s entitled to be an idiot.” Trump is proving that in spades. As I said last week, we are lucky to have Joe Biden leading the column at this challenging moment in our history.
Opportunities for reader engagement.
On Saturday, I opened the comments section and invited readers to promote organizations they are working with heading into the midterms. The response was great! If you haven’t scanned the Comments section for opportunities of involvement, the comments are here: Today’s Edition Newsletter, Comments - Opening the Comments section for the weekend.
Organizations frequently mentioned include
There are other organizations mentioned as well, so be sure to read about their good work in the Comments section.
And as a reminder, I will be joining Focus For Democracy as a guest this Wednesday, September 7, at 8:00 PM Eastern, 5:00 PM Pacific. Register here: https://tinyurl.com/F4DSept7 , and a Zoom link will be sent to you. Details of the event are in a prior newsletter, here: Trump admits guilt. - by Robert B. Hubbell
Concluding Thoughts.
Biden provoked Trump by speaking the truth. Trump responded with an online meltdown and a “Dear Leader”-style speech in Pennsylvania. On the one hand, it is difficult to watch or hear Trump as he becomes the center of attention once again. On the other hand, this is a good development. Before the decision in Dobbs and the raid on Mar-a-Lago, Republicans had convinced Americans that the greatest threat to democracy was gasoline prices. That schtick has grown old as gas prices have fallen and “Trump fatigue” has risen.
So, as you suffer through a new round of “all Trump all the time,” remember that persuadable independents are as sick of Trump as you are. Just as Trump stole the spotlight from Dr. Oz and Doug Mastriano in Pennsylvania on Saturday, he is overshadowing Republicans everywhere. That is both painful and good—and it will be the steady state for a long time. Democrats must exploit that advantage for all it is worth by highlighting their efforts to protect liberty, fight tyranny, and preserve democracy. Stay focused on the positive and let Joe Biden provoke Trump into committing unforced errors. Four days in, the plan is working better than imagined!
Talk to you tomorrow!
Once again Robert Hubbell finds the perfect balance between righteous outrage and a insightful analysis of the almost certainly beneficial political effects of Trump's unhinged and ultimately self-defeating behavior. That Joe Biden has taken the gloves off is a particularly welcome development. That Donald Trump has gone into full derangement mode, painful as it is to witness, is also a positive development with respect to the midterm elections. The old rallying cry "Confusion to mine enemies" seems particularly applicable.
It’s hard for me to believe that judge Cannon actually graduated from the University of Michigan law school.