Clearing the legal thicket.

March 19, 2024

Most of Monday's significant developments related to criminal and civil proceedings against Trump. It is difficult to find a through-line that makes sense of all the developments. In general, those proceedings are moving inexorably toward a day of reckoning for Trump. True, Trump's strategy of delay is exploiting the Achilles’ heel of the justice system to good success (for him), but his day of reckoning will come nonetheless.

However, we should not count on the legal system to save us from a second Trump term. Rather, defeating Trump at the ballot box is a condition precedent to holding Trump fully accountable for his crimes, corruption, and civil wrongs. That is the path through the legal thicket: defeating Trump. If we can do that, the rest is detail.

So, with confidence that the details below are temporary detents in the inevitable prosecution, conviction, imprisonment, and financial ruin of Trump, let’s examine Monday’s developments.

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Judge Aileen Cannon issues non-sensical order that reeks of corruption.

On Monday, Judge Cannon issued a nonsensical order requiring Jack Smith and Trump to “engage” in drafting hypothetical jury instructions regarding Trump's ability to unilaterally declare presidential documents as “personal” under the Presidential Records Act.

Don’t bother trying to make sense of Cannon’s order. It is gibberish. The jury instructions that she requests would effectively order the jury to exonerate Donald Trump based on a legal theory that the 11th Circuit has already rejected in an earlier proceeding before Judge Cannon—a ruling that also excoriated Judge Cannon for her judicial nonsense.

The order is evidence of either willful ignorance or manifest corruption. To save time, let me pierce through the gibberish in the order to translate into plain English: “Please appoint me to the Supreme Court.”

Commentary from legal observers has been unsparing. See, e.g., George Conway:

In the decades that I have been a lawyer, this is the most bizarre order I’ve ever seen issued by a federal judge.  What makes that all the more amazing is that the second and third most bizarre orders I’ve ever seen in federal court were also issued by Judge Cannon in this case.

Sooner or later, Jack Smith will be forced to seek an order from the 11th Circuit removing Judge Cannon. It will happen; it is only a matter of time.

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Trump claims he cannot post bond in New York civil fraud case.

Trump is seeking a stay of execution of the $483 million civil fraud judgment against him in New York. With accrued interest, Trump would need to secure a bond in excess of $500 million to forestall the state of New York's execution of the judgment. To be clear, “execution” on the judgment means seizing and liquidating Trump's assets to satisfy the judgment.

In a filing on Monday in the New York appellate court, Trump claimed it was “a practical impossibility” for him to secure an appeal bond in excess of $500 million. He claims that thirty insurance and bonding companies refused to issue a bond. Trump's filing is here: Trump Reply in Support of Stay |  24-01134.

Trump's filing is a weak effort at misdirection. At bottom, Trump is attempting to create the appearance that he cannot post a bond—without providing the court with information about his financial position, liquidity, or efforts to borrow against existing assets.

Trump's claim that it is “impossible” for him to obtain a bond is based on a declaration by the president of an insurance brokerage firm (Lockton) that assisted Trump's effort to obtain an appeal bond. Critically, the Lockton representative never said that Trump did not have the cash reserves to obtain a bond. The Lockton representative says,

While it is possible that Defendants could provide a surety with an irrevocable letter of credit as collateral, that [letter of credit] would still typically have to be fully backed by cash or cash equivalents. . . . While it is my understanding that the Trump Organization is in a strong liquidity position, it does not have $1 billion in cash or cash equivalent.

The trick in the above declaration is that the Lockton representatives say, “It is my understanding,” that Trump doesn’t have the cash to obtain a bond. The phrase “my understanding” means “I don’t know what the facts are, but Trump told me he doesn’t have the cash to obtain a bond.”

You don’t have to be a lawyer to know that evidence based on the statement “Trump told me” is not evidence; it is hearsay—and is insufficient to justify a stay on the grounds of “practical impossibility.” Even so, “practical impossibility” is a dubious standard; Trump has pointed to no cases where a stay has been granted under similar circumstances.

What will happen? The right result is for the appellate court to deny the stay and force Trump to put up or shut up. If he can’t post a bond, the state of New York will do what he refuses to do—sell one of his buildings to satisfy the judgment. But Trump's strategy of pushing the envelope has yielded results frequently enough to encourage him to keep trying,.

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Paul Manafort might rejoin the Trump campaign. Follow the money.

You will recall that Paul Manafort served as campaign director for Trump in 2016. He was convicted of lying to the FBI about his contacts with Russian intelligence officers regarding internal polling data from the Trump campaign. Separately, a bipartisan report from a Senate committee concluded that Manafort posed a “grave counterintelligence risk” to the US. Trump is now considering rehiring Manafort for his 2024 campaign. See Mother Jones, Trump Considers Adding Paul Manafort—a “Grave Counterintelligence Threat”—to His Campaign.

While this story may not seem related to Trump's “legal thicket,” it may be. Trump is in desperate need of cash. Manafort’s expertise before he was mysteriously selected to run Trump's 2016 campaign was managing public relations for Putin (via a Russian oligarch close to Putin). Do you see a possible connection between Trump's need for cash, Paul Manafort, and Putin?

Rachel Maddow connects the dots between Manafort, Putin, and Trump's need for cash here: Trump has been unable to get bond for $464 million judgment, his lawyers say (nbcnews.com)

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Judge in NY “election interference / hush money” trial allows Stormy Daniels and Michael Cohen to testify

Judge Juan Merchan ruled on several pre-trial motions on Monday in the criminal case brought by Manhattan District Attorney Alvin Bragg. The rulings allowed testimony from Stormy Daniels, Michael Cohen, and Karen McDougal (who also received a hush money payment from Trump). See The Hill, Judge declines Trump’s request to block Michael Cohen, Stormy Daniels testimony.

Judge Merchan also ruled that playing the “Access Hollywood tape” to the jury would be prejudicial, but he will allow questioning about it. If Trump denies the tape's contents, the judge is open to reconsidering his ruling.

In a hopeful sign about Judge Merchan’s willingness to clamp down on game-playing by Trump and his lawyers, the judge went out of his way to note that Trump's lawyers abused the pre-trial motion process. Although lawyers are permitted to file pre-trial motions to obtain advance rulings on expected evidentiary issues, Trump used those motions to re-argue his entire legal theory in support of dismissal.

Judge Merchan wrote,

However, rather than availing himself of the opportunity [to argue evidentiary questions], Defendant has instead chosen to reargue issues already ruled upon by the Court. Defendant's motions are nothing more than a motion to reargue disguised as [an evidentiary motion].

A motion to reargue must be brought in a procedurally proper manner. Rearguing this Court's prior rulings in this manner is procedurally and professionally inappropriate and a waste of this Court's valuable resources.

Translating the legalese into English: “Strike one!” And the trial hasn’t even started!

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The Supreme Court is losing patience with the Fifth Circuit’s lawless ways.

One way Trump has attempted to protect himself from criminal and civil liability is to seed the federal bench with reactionary judges loyal to Trump and intent on implementing the Federalist Society’s agenda. One consequence of Trump's plan to corrupt the judiciary is that portions of the Fifth Circuit have become rogue and lawless. Some judges within the Fifth Circuit (appellate and district level) view the executive branch as an enemy of the people.

In a radical holding, the Fifth Circuit ordered the administration to stop most communications with social media companies. As explained by Ian Millhiser in Vox, the Fifth Circuit ruled that

that the Biden administration violated the First Amendment because government officials “entangled themselves in the platforms’ decision-making processes,” and ordered the government to stop having “consistent and consequential” communications with social media platforms.

The ruling effectively prohibited the government from urging social media to take down disinformation about pandemics, election interference by foreign countries, and social media trends urging teens to commit suicide.

Predictably, Justices Alito and Thomas sided with the Fifth Circuit’s ruling, but most of the rest of the justices seemed to be fed up with the lawless actions of the Fifth Circuit. See Ian Millhiser in Vox, Supreme Court Justice Kavanaugh loses patience with the judiciary’s far right.

As explained by Millhiser, Justices Kavanaugh and Roberts have clearly lost patience with the bizarre, reactionary positions taken by the Fifth Circuit. A lawyer defending the injunction prohibiting the government from contacting social media companies contended that the government could not ask Twitter and Facebook to take down posts urging teens to commit suicide. Justice Roberts was so incredulous at the attorney’s position that he repeated the hypothetical and asked the attorney to answer it again.

The good news is that there appears to be a limit to the extent to which Kavanaugh, Roberts, and Barrett are willing to go to support the Federalist Society’s anti-government agenda. While that is cold comfort, it is comfort nonetheless.

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Opportunity for Reader Engagement.

BigTent is hosting a wonderful event with Marc Elias of the Elias Law Group and Democracy Docket on March 20th at 7PM Eastern. See details below:

BigTentUSA is honored to host Marc Elias, the renowned Founder of Elias Law Group and Democracy Docket, alongside Lauren Groh-Wargo, the dynamic CEO of Fair Fight Action, as our distinguished guests. Marc and Lauren are at the forefront of defending voting rights and combating voter suppression. Their unwavering commitment and groundbreaking work have had a significant impact on preserving the integrity of our democracy.

This event is an opportunity to engage in a discussion about how voter suppression has impacted elections to date and what are the next lines of attack in 2024. Marc and Lauren will also discuss the status of Trump’s trial in Fulton County. 

BigTentUSA is a moderate, inclusive, and collaborative community empowering citizens to take action to protect democracy, defend women’s rights, and protect our children. Join our free educational series of events and our calls to action detailed and updated regularly on our website.

Please let us know if you’re coming to our event with Marc Elias and Lauren Groh-Wargo on March 20th at 7PM ET by using this link to register.

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Concluding Thoughts.

Here’s how I think about the sometimes disappointing effort to hold Trump to account for his crimes and corruption: We don’t have to win every battle—just most of them, over time. That mantra applies to our larger effort to preserve democracy. We can survive the occasional loss as long as we are committed to seeing our battle through to the end. If we are, victory is only a question of “when,” not “if.”

Stay strong! Talk to you tomorrow!