An indictment to preserve the rule of law.

June 9, 2023

          A Miami federal grand jury issued an indictment against former president Donald Trump on June 8, 2023. According to early reporting, the indictment includes seven counts, including willful retention of national defense documents, making false statements, conspiracy, and obstruction of justice (possibly for witness tampering). Trump claims he will appear in federal court in Miami next Tuesday to enter a plea.

          Indicting Trump is the right result. Indeed, it was necessary to protect the rule of law and preserve the Constitution. Trump is entitled to the presumption of innocence (in court) and a fair trial, but the publicly known facts strongly suggest that Trump is guilty. Failing to indict Trump would have undermined public trust in fairness, justice, and equality under the law in the US.

          The indictment of Trump is no cause for celebration, but it is cause for relief and gratification that the organs of justice in the United States are up to the task of holding a former president to account. As Larry Tribe and Dennis Aftergut wrote in The Bulwark, “The long-anticipated charging of the former president shows a Justice Department worthy of its name.”

          It was not a foregone conclusion that special counsel Jack Smith would seek an indictment or that a grand jury would issue one despite substantial evidence to support probable cause. Others before Jack Smith walked to the precipice of holding Trump to account and blinked. Smith did not. And Merrick Garland did not exercise his right to overrule Smith’s decision to seek an indictment. For that, we should be grateful.

          It is sobering and disappointing to know that a former president of the United States would stoop to obstruction of justice, lies, conspiracy, and unlawful retention of defense secrets because he believed (wrongly) that he was above the law. Trump is not the first president to abuse his power or break the law, but Trump’s indictment will dissuade future presidents tempted to do so. That is the point. If we do not enforce the law when the facts demand it, the law is a mockery.

          The June 8th indictment should also provide all Americans with hope that Trump will be indicted for his attempted coup and incitement of the insurrection on January 6th. Though the charges regarding retention of defense secrets are serious, those charges are subject to confusion and false equivalency because Vice President Pence and President Biden both inadvertently retained classified documents when they completed their respective terms as vice president. Although those cases are easily distinguishable, nuance is not a strong suit of viewers of Fox News (an insight that is critical to Fox’s success).   

          Prosecuting Trump will be an ordeal for the nation. So be it. The only thing worse for the nation than prosecuting Trump is not prosecuting Trump. Failing to prosecute Trump would be a dereliction of duty from which the nation would not recover. So, as we endure Trump's effort to turn his prosecution into a spectacle that is equal parts circus and cage match, we should be confident that the ordeal is worth the effort. America is bigger than Trump and will abide long after Trump becomes the American icon for corruption.

          We will hear dozens of times over the next year that Trump is “entitled to a presumption of innocence.” That is a true statement but applies to the jury that weighs the evidence of his guilt. See Manual of Model Jury Instructions, 1.2 The Charge—Presumption of Innocence | Model Jury Instructions. But we are not jurors and are entitled to form opinions based on facts known to the public. The issuance of the indictment does not strip us of our First Amendment Rights or our ability to make reasoned judgments. The evidence strongly suggests that Donald Trump is guilty of unlawful retention of national defense documents—a felony for which others in his position have been sentenced to three years in prison.

          Jack Smith’s selection of Miami as the venue for Trump's trial suggests that Smith’s objective is to obtain a conviction that will be upheld on appeal and result in a prison sentence for Trump. The details regarding the selection of Miami as a venue are complicated and not worth explication at this point. Smith has made his choice of venue, a choice that signals his intent to obtain a conviction that will stick.

          An underreported detail is that five sealed cases were filed in Miami federal court within minutes of one another on Thursday. See Anna Bower on Twitter (attaching a copy of the PACER listing for Southern District of Florida). One sealed case is presumably against Trump; it is reasonable to infer that the other four sealed cases are against Trump's co-conspirators. If true, the filing of five cases by Jack Smith suggests that he is serious about prosecuting everyone who violated the law.

          After I reviewed the above paragraphs with my Managing Editor/wife, she said, “That’s fine, but you haven’t told your readers how you feel about the indictment.” Since my Managing Editor’s advice is unerring, here is how I feel about the indictment:

          For the last four years, I have felt frustrated, upset to the point of anger, and incredulous that Trump has managed to escape accountability despite his public, manifest corruption. Those feelings have been exacerbated by the gleeful, bad-faith defense of Trump by his GOP minions who were more interested in “owning the libs” than in “protecting the Constitution.” It was revolting. Indeed, there is a universal human revulsion to being placed in an unfair situation where everyone knows the situation is unfair but there is no remedy to the unfairness. That is how I have felt over the last four years—a feeling shared by tens of millions of Americans.

          Tonight, I feel a sense of relief and vindication. I want Trump to be held accountable after a fair trial. He deserves to be convicted. He deserves to be sent to prison. Indeed, if he were anyone other than a former president, he would already be in prison (or in jail as he awaits his trial date without benefit of bail). I am disgusted that the media has already turned to the question of “What are the political implications of the indictment?” To be sure, that is a serious question worthy of discussion. But the fact that a former president has been indicted under the Espionage Act is more than a set up for speculation about 2024.

          I am gratified that the tide has turned against Trump. He will be indicted in Georgia for election interference. He will stand trial in Manhattan in March 2024. And the odds are that he will be indicted for attempting a coup and inciting an insurrection. He deserves all that and more. And he will continually incriminate himself—as he did during the CNN townhall and his post on Truth Social on Thursday evening. The knowledge that every word he utters makes his conviction more certain will make the next two years more bearable.

          But my overwhelming feeling on Thursday night is that the center has held—as I believed it would. My faith in the Constitution and the rule of law has been rewarded. None of this means that I will let down my guard or assume victory. But a win every once in a while, especially on important matters, can renew our faith and reinvigorate our will to win.

          That’s how I feel tonight. Speaking of “securing a win every once in a while,” read on!

Supreme Court rules that Alabama racial gerrymandering violated Section 2 of Voting Rights Acts.

          In a surprise to Court watchers, the US Supreme Court ruled 5-4 that racial gerrymandering by the Alabama legislature violated Section 2 of the 1965 Voting Rights Act. John Roberts and Brett Kavanaugh joined the Court’s three liberal justices to preserve the last remaining section of the Act that was gutted by John Roberts in Shelby County v. Holder.

          For a detailed discussion of the holding, see Mark Joseph Stern in Slate, John Roberts and Brett Kavanaugh saved the Voting Rights Act. Per Stern,

The Supreme Court’s 5–4 decision in Allen v. Milligan on Thursday, which found that Alabama’s congressional map violates the Voting Rights Act’s ban on racial vote dilution, sends two clear messages. First, a bare majority of the court—Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals—believes that the VRA still plays a meaningful role in maintaining a multiracial democracy (or is willing to defer to Congress’ judgment on the matter). Second, that same majority of the court does not look kindly upon red states’ race to shred decades of precedent in an effort to wipe out the voting power of Black Americans.

          The good news is that the decision means that Alabama must create a second congressional district in which the voting power of Black voters is not diluted by gerrymandering. It is likely that Alabama will add a second Black Democratic representative to its congressional delegation.

          The even better news is that the holding in Allen v. Milligan will likely boost the prospects for plaintiffs in cases across the nation challenging racial gerrymandering by GOP legislatures. See Democracy Docket, How the U.S. Supreme Court’s Decision in Allen v. Milligan Will Impact Ongoing Redistricting Litigation. It is possible the effect of the ruling in Allen v. Milligan is a net gain of six Democratic seats in the House in 2024.

          Why did John Roberts and Brett Kavanaugh switch sides to join with the liberal justices? One theory (with which I agree), is that Roberts and Kavanaugh understand that their ruling in Dobbs has inflicted a grievous wound on the Court’s legitimacy and they are attempting to limit the damage. Whatever the reason, the ruling is a major victory for advocates for voting rights. As I said above, a win every once in a while, especially on important matters, can renew our faith and reinvigorate our will to win. We should all feel good tonight!

Concluding Thoughts.

           Yesterday, I invited readers to comment on their engagement in the fight against climate change. The response was overwhelming—and heartening. As I write on Thursday, readers have posted more than 400 comments to yesterday’s newsletter. I did my best to read the comments throughout the day but was unable to keep up. But, I managed to capture thirty-eight of the organizations/resources/books recommended by readers. I have pasted that list into the Comment section to today’s newsletter.

          If you haven’t perused the Comments section of yesterday’s newsletter, you can check out the list below for a quick summary of organizations recommended by readers. But you will be missing the enthusiasm, concern, and passion expressed by the readers in their comments.

          I will send a short note on Friday to open the Comments over the weekend. Because Friday, June 9^th is my Managing Editor’s birthday, I will be devoting my time to celebrating her birthday rather than writing a newsletter (despite the great temptation to do so).

          It has been a long journey to this point. The next real development will be on Tuesday when Trump enters his plea. That means the weekend will be a perfect opportunity to relax and reflect on the fact that the system has worked—or just relax and not think about politics.

          Talk to you tomorrow!