Comments Section open to all readers.

October 1, 2022

[No audio version due to travel / limited internet]

          As I have for the past few weekends, I am opening the Comments section to all readers. If you are running an organization that needs volunteers or support, please feel free to post a request for help. Tip: Be specific in your needs and make it easy for people to sign up. I will be offline over the weekend and will not be able to pin requests for help to the top, so if you are looking for an involvement opportunity, please be sure to scan the Comments section to the end.

          This special edition of the newsletter will be brief because I promised my wife that I would build a campfire tonight so that we can relax under the stars. The sun is setting, and I have wood to split! On to the weekend edition “newsletter lite”!

Justice Ketanji Brown Jackson.

          All Americans should be filled with pride and gratitude that Biden has appointed a preeminently qualified jurist to the Supreme Court. She begins her first term with the Court next week. Let’s hope that her voice is heard by the members of the conservative majority. Godspeed, Justice Jackson!

Putin’s nuclear saber-rattling.

          Every threat by Putin to use nuclear weapons is reckless and unforgivable. We should take those threats seriously. Putin gave a speech on Friday regarding the illegal annexation of four regions of Ukraine and said that he would use “all available means” to protect Russia’s new territory. But the actions of the Russian military do not seem to support Putin’s nuclear rhetoric. See Institute for the Study of War, Special Report: Assessing Putin’s Implicit Nuclear Threats After Annexation. If you are anxious about Putin’s threats (and who isn’t?), I recommend reading the ISW report in full. Relevant excerpts include:

Russian President Vladimir Putin did not threaten an immediate nuclear attack to halt the Ukrainian counteroffensives into Russian-occupied Ukraine.

Putin’s annexation speech made several general references to nuclear use that are consistent with his past language on the subject, avoiding making the direct threats that would be highly likely to precede nuclear use.

Putin is attempting to force Kyiv to the negotiating table by annexing Russian-occupied territory and threatening nuclear use.

Putin’s stated red lines for nuclear weapon use have already been crossed in this war several times over without any Russian nuclear escalation.

          So, at the moment, the nuclear rhetoric appears to be desperate rhetoric by a man who made a monumental miscalculation by invading Ukraine. He is looking for a way out. Using nuclear weapons isn’t an exit strategy, but threatening their use is intended to force Ukraine and NATO to the negotiating table.

Judge Aileen Cannon’s order overruling Judge Dearie’s Case Management Plan.

          When the Trump legal team discovered that special master Judge Dearie was intent on getting to the truth, they ran back to Judge Cannon and asked her to put a stop to Judge Dearie’s aggressive plan to dispose of Trump’s specious claims. Her order is here: Order Accepting in Part and Rejecting In Part Amended Case Management Plan.

          Cannon’s order is a travesty. It does two things: It relieves Trump from making an affirmative statement (under oath) to identify which documents were allegedly planted by the FBI, and (b) introduces delay into every aspect of the special master’s review. For a superb, detailed analysis of the order, see Joyce Vance, Judge Cannon Serves Trump Some Cake (substack.com).

          I will not repeat Vance’s fine analysis. Instead, I would like to step back and take our bearings. Only then can we see how far Judge Cannon has drifted from constitutional north.

          First, I want to address a question from a reader I received in today’s email: Can Judge Cannon overrule Judge Dearie? Yes. Judge Cannon is the judge to whom the matter has been assigned for resolution. She has referred limited aspects of the case to a “special master” under Federal Rule of Civil Procedure 53. Under FRCP, a party who objects to a ruling by a special master may appeal to the judge who presides over the case. The trial judge (here, Judge Cannon), reviews legal rulings for error and reviews procedural rulings for “abuse of discretion.” In her ruling, Judge Cannon did not apply the standards of review in FRCP 53, but merely substituted her wishes for those of the special master. So, in theory, Judge Cannon can overrule Judge Dearie by applying the relevant standards of review. In practice, she appears to have ignored the requirements of the Federal Rules of Civil Procedure to advocate for the interests of Trump.

          To gauge the true outrage of Judge Cannon’s rulings, we need to step back and recall how this fine mess began. The DOJ obtained a search warrant of Mar-a-Lago after convincing a federal magistrate that there was probable cause to believe that evidence of a crime would be recovered at Mar-a-Lago.

          But the DOJ did not seek a warrant as to a garden variety crime. It sought a warrant for evidence of espionage against the United States and obstruction of justice. The FBI affidavit supporting the application for a warrant set forth evidence that Trump was concealing and lying about possession of National Defense Information. Some of those documents contained classification markings indicating that they contained the most sensitive intelligence in the possession of the United States government.

          Trump filed a civil complaint seeking the return of unspecified documents, making vague references to attorney-client privilege and executive privilege. Notably, the civil complaint did not actually assert either privilege but merely raised the specter that they might apply to some documents seized by the FBI.

          Based on Trump’s civil complaint relating to evidentiary privileges that do not justify the return of any documents, Judge Cannon told the DOJ to stop its criminal investigation of crimes of espionage and obstruction of justice. Cannon’s ruling was shocking and unprecedented. She was roundly rebuked by the 11th Circuit when the DOJ appealed the portion of her order relating to classified documents.

          Meanwhile, the DOJ, in a sign of good faith, agreed to proceed with Trump’s nominee for a special master, Judge Dearie. Dearie immediately set about to learn what claims Trump was making about which documents so that Dearie could make the findings of fact delegated to him by Judge Cannon.

          Trump’s attorneys objected to Dearie’s order requiring Trump to specify whether he in fact claimed that the FBI planted documents when it seized materials from the DOJ. Judge Cannon has now relieved Trump from the obligation to state whether he is making a claim that documents were planted and has slowed down the entire DOJ criminal investigation because of unspecified claims of privilege and wrongdoing.

          As before, Judge Canon is acting as an advocate for and protector of Trump. Let me use an example that I believe is indistinguishable from the current situation.

Imagine Trump appears before Judge Cannon, who asks, “Do you contend the FBI planted documents?”

Trump says, “I don’t want to tell you because that might hurt my defense in a criminal trial.”

Cannon responds, “Of course, Mr. President! No one should force you to prematurely articulate your criminal defenses.”

Trump leaves the courtroom and says to reporters waiting outside: “The FBI planted documents in the evidence they seized from Mar-a-Lago.”

          The above scenario makes a mockery of justice because Judge Cannon is allowing Trump to impugn the integrity of a criminal investigation in public but relieving him of the obligation to make those same statements in court. That is the precise effect of Judge Cannon’s ruling yesterday!

          If Trump were not making contentions on his vanity social media platform, he might have a better argument that he can’t be compelled to articulate his defenses. But given that he is making statements in public about his defenses, it is inexcusable for Judge Cannon to relieve him of that obligation in the courtroom.

          Judge Cannon’s ruling is outrageous on several levels. At the very least, it betrays a level of shocking incompetence. Worse, it is incontrovertible evidence of special treatment for the man who nominated her to the bench less than two years ago. But most importantly, it allows Trump to undermine public trust in the justice system by allowing him to make outrageous comments alleging misconduct by the FBI and DOJ while relieving him of any obligation to assert those comments in court. In that, Judge Cannon is doing immeasurable damage to the public trust in the justice system.

Concluding Thoughts.

          We continue to hold the victims of Hurricane Ian in our thoughts.

          As reminder, I will be moderating an interview with Senate candidates John Fetterman and Mandela Barnes on Monday, October 3rd at 8:30pm Eastern /5:30pm Pacific. The races in Pennsylvania and Wisconsin are two of our top chances to flip Senate seats. If we win these seats (and successfully defend others), we can abolish the filibuster, codify Roe, eliminate gerrymandering, and expand voting rights. By flipping the Senate, we have the chance to redeem the promise of American democracy by making it more representative, inclusive, and respectful of human dignity and liberty. The link to donate and attend is here: Meet Mandela Barnes & John Fetterman & Truly Flip the US Senate.  

          If you haven’t yet joined the conversation in the Comments section, I urge you to do so. There, you will find committed citizens who are struggling with the same doubts and challenges you face. But you will also find inspiration. It is amazing to see the breadth and depth of efforts occurring across America to help restore the rule of law. I take inspiration and strength every time I hear from readers. You will too. You can read the Comments section (or leave a comment) by clicking on the “text” icon next to the “heart icon” at the bottom and/or top of every newsletter.

          And to those among you who have it in your hearts to be leaders at this contentious and difficult moment in our nation’s history, please step up in the Comments section! People are waiting to rally behind those who are able to lead the way. If that is you, what are you waiting for? There is no better time than now!

          Talk to you on Monday!

[Note: This newsletter was typed at a furious pace, but not proofread. I ask for your indulgence for any errors.]