Facts that matter.

August 7, 2023

          “After a week of nearly wall-to-wall coverage of Trump's indictment, can’t we talk about something else?” That is becoming an increasingly common question from readers. Yes, we can and will. But there is no escaping the fact that we have entered an unprecedented period. The prosecution of a former president, as we attempt to prevent a slide into authoritarianism, will play an outsized role in the future of our nation. So, we can’t avoid talking about Trump, but the point is well taken that we should attempt to focus on the facts that matter.

          We should not rise to every provocation or credit every bad-faith lie disguised as a legal defense or bother to refute every false equivalency. Still, we are at the beginning of the most momentous criminal prosecution in our nation’s history. Early clues as to how that prosecution will be handled over the next several years matter. And we learned a lot over the last 72 hours.

Despite a flurry of activity Friday through Sunday, most of it can be condensed into two major points:

1. The J6 indictment has been assigned to a no-nonsense judge who appears intent on establishing boundaries of acceptable conduct in the prosecution. Trump appears intent on testing those limits to the breaking point so he can generate grounds for motions to recuse the judge and change venue to West Virginia. (No worries; neither motion will be granted.) Ultimately, Trump wants to create the false narrative that the judge is prejudiced against him.

2. Trump also appears intent on intimidating witnesses in advance of trial to discredit them and confuse the public about the issues to be tried. Ultimately, this effort is all about “winning” in the court of public opinion so that Trump can be re-elected.

          So, let’s examine the last 72 hours through the lens of the two facts that matter: The trial has been assigned to a no-nonsense judge and Trump is attempting to litigate the case in the court of public opinion.

The no-nonsense judge.

          At the arraignment last week, the magistrate judge warned Trump not to “commit another crime” while on release from pretrial detention. The magistrate specifically identified efforts to intimidate jurors or witnesses as a “crime” that could result in the revocation of his pretrial release. (“She told Trump that it is a crime to 'influence a juror or try to threaten or bribe a witness or retaliate against anyone' connected to the case.” Salon.)

          Trump immediately flouted the magistrate’s warning by posting two items on Truth social:

“IF YOU GO AFTER ME, I’M COMING AFTER YOU.” (Politico)

          and

“I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was 'too honest.’ He's delusional, and now he wants to show he's a tough guy."

          Both posts violate the spirit if not the letter of the magistrate’s comments to Trump. But Trump is an expert at walking the line with ambiguous but threatening statements. Will he get away with it before Judge Tanya Chutkan? That remains to be seen, but the signs are not looking good for Trump.

          After Trump's first mob-style threat (IF YOU GO AFTER ME . . . .”) the prosecution filed a motion late Friday afternoon for a protective order that would prevent Trump from commenting on evidence revealed to Trump by the prosecution in the pretrial process. But the prosecution also advised Judge Chutkan of Trump's mob-style threat.

          Then, in rapid-fire order, on Saturday morning, Judge Chutkan ordered Trump to file a reply to the motion for a protective order on Monday. Trump's lawyers asked for an extension of time to file their reply on Thursday. The judge immediately denied Trump's request for an extension. And then Trump's lawyers went on the Sunday talk shows and said they would oppose the protective order motion on the ground that Trump has the right to tell voters what witnesses said before the grand jury. See CNN, Trump attorney says legal team will fight potential protective order in election subversion case.

          And, if that wasn’t enough, Trump then posted that he would seek to disqualify the judge and move the location of the trial. See Politico, Trump says he will seek a recusal, venue change in Jan. 6 case. Trump wrote,

There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous freedom of speech/fair elections case. Everybody knows this, and so does she! We will be immediately asking for recusal of this judge on very powerful grounds, and likewise for venue change, out [of] D.C.

          For non-lawyers, you should know that publicly attacking the impartiality of the judge on social media is a very bad idea. While parties before the court are entitled to raise legitimate grounds for recusal in court pleadings, doing so outside of the formal processes established for such challenges could be viewed as an attempt to influence the jury—the very crime that the magistrate warned Trump against.

          There is currently no hearing set for the prosecution’s motion for a protective order. I expect that Trump's lawyers will ask for a hearing, although there is no absolute right to a hearing on most motions.

          Here’s the point: The battle lines are being drawn. Trump believes he will bend public opinion in his favor by provoking Judge Chutkan to sanction him in some manner. It is too much to hope that Trump will be jailed pending trial, but it is possible that other limitations will be placed on him if he continues to attack witnesses, the prosecution, and the judge.

Trump is playing a dangerous game. He has never been a criminal defendant with a no-nonsense judge handling the matter. He is about to find out what it is like to be a federal criminal defendant before a strong judge.

Trump's effort to intimidate witnesses.

          As a separate strand in his effort to garner public support for his position, Trump is attacking one of the main witnesses to his criminality: Mike Pence. As noted last week, efforts to attack Mike Pence have backfired. Rather than intimidating Pence, the attacks have revealed a spine in Pence that has been hidden to this point. Moreover, Trump's statements can be admitted against him at trial or can allow the prosecution to introduce more evidence to rebut Trump's denials.

          See, for example, the post quoted above in which Trump says, “I never told Pence he was ‘too honest.’” By denying Pence’s public comments, Trump has made it more likely that Pence’s contemporaneous handwritten note that says, “Trump says I am too honest” will be presented to the jury.

          Trump's lawyers have piled on Pence, saying that “If Pence testifies, Trump will be acquitted.” See Politico, Trump's lawyer says he ‘will be acquitted’ if Pence testifies. Trump's attorney, John Lauro, said:

I cannot wait until I have the opportunity to cross-examine Mr. Pence, because what he will do is completely eliminate any doubt that Mr. Trump, President Trump firmly believed that the election irregularities had led to inappropriate results.

          Lauro’s statement panders to Trump's base and should not be taken at face value as a legal proposition.

But if we treat Lauro’s statement as legal argument, it shows that he does not understand the charges against Trump, only some of which rely on Trump's beliefs about the “stolen” election to establish criminal liability. Although the indictment alleges that Trump did not believe claims that the election was stolen, that belief is not an element of (or defense to) counts two, three, and four for obstruction of a proceeding and conspiracy to deprive rights.

          Moreover, Lauro has apparently not thought about the rules of evidence governing the admissibility of hearsay and party admissions. The prosecution can use other witnesses to prove statements made by Trump. The reverse is not true: Trump cannot use other witnesses to prove statements made by Trump. (To my lawyer friends: I know there are exceptions to this rule (impeachment), but I am stating the general principles here.)

          In other words, if Lauro thinks he is going to use Pence (or anyone else) to prove Trump's state of mind based on out-of-court statements made by Trump, he should brush up on his federal rules of evidence.

          Which brings me to the point: Lauro undoubtedly understands his evidentiary challenges but doesn’t care. He is not addressing the judge; he is trying to shape public opinion by making unsupportable statements. As I said above, we should not rise to every provocation or credit every bad-faith lie disguised as a legal defense. Trump and his lawyers are engaged in a public relations offensive in which their statements about the law should not be trusted.

John Eastman admits that he was trying to overthrow the government.

          Trump's co-conspirator John Eastman has likewise been making damaging admissions about the conspiracy alleged in the J6 indictment. See Talking Points Memo, John Eastman Comes Clean: Hell Yes We Were Trying to Overthrow the Government.

Per Talking Points Memo, Eastman explained to an interviewer “the core justification and purpose for trying to overturn” the results of the 2020 election. Eastman said:

Our Founders lay this case out. There’s actually a provision in the Declaration of Independence that a people will suffer abuses while they remain sufferable, tolerable while they remain tolerable. At some point abuses become so intolerable that it becomes not only their right but their duty to alter or abolish the existing government.

So that’s the question. Have the abuses or the threat of abuses become so intolerable that we have to be willing to push back?

          The problem for Eastman (as Josh Marshall notes) is that the US is governed by the Constitution, not the Declaration of Independence. The Declaration’s language about the right to engage in rebellion is missing from the Constitution. Indeed, the Constitution specifically authorizes punishment for rebellion against the US in several provisions. So, whatever Eastman believes about rebellion against the US, those beliefs violate the Constitution and constitute crimes—notwithstanding the language of the Declaration of Independence.

          You would think that Eastman would be aware of such a basic distinction given that he is (was?) a high-profile lawyer who served as a judicial law clerk to Justice Clarence Thomas. But, as we know, Justice Thomas has exhibited deep flaws in his analytical skills, both in his opinions and compliance with judicial ethics. Read on!  

Another Clarence Thomas Scandal.

          The New York Times has reported that Clarence Thomas received a private loan to purchase an RV that he uses to travel across the nation. So, what! Is it illegal to borrow money from a friend? Possibly. Per the NYTimes, the private lender says the loan to purchase the RV was “satisfied”—which does not mean the same thing as “repaid.” For example, the friend who advanced the money could have “forgiven” the loan—which counts as being “satisfied”—but which would also constitute a gift to Justice Thomas. See NYTimes, Justice Clarence Thomas’s $267,230 RV and the Friend Who Financed It.

          Predictably, Thomas’s “friend” has refused to elaborate on the meaning of the word “satisfied.” John Roberts, where are you?

The murder of O’Shae Sibley

          O’Shae Sibley was a well-known dancer and choreographer in New York. Last week, he was vogueing in a parking lot in Brooklyn. O’Shae was approached by a group of young men. They hurled racial and anti-gay slurs at O’Shae before a high-school teenage member of the gang fatally stabbed O’Shae. The teenager has been charged with a hate crime. See NYTimes, Mourners Pay Tribute to O’Shae Sibley at the Scene of His Murder.

          While we should not jump to conclusions, it appears that O’Shae was murdered because he was a gay man dancing in public. If true, such a crime is the inevitable result of the drumbeat of anti-LGBTQ propaganda coming from MAGA extremists and politicians, most notably Ron DeSantis. Yet another reason that we must speak out against every anti-LGBTQ piece of legislation and propaganda issued by MAGA extremists.

          As the Times article above notes, mourners have begun to gather near the gas station where O’Shae was murdered. Reader (and friend) Jonathan Atkin is one of the nation’s leading aerial drone photographers. He took the photo below last Friday and granted me permission to publish it. (It is copyrighted, so please respect Jonathan’s intellectual property.)

          The photo is evocative for reasons I cannot fully explain. It is oblique but converges to a point. It communicates the power of the crowd from a distance. (As noted in the Postscript below, the distance is a sign of respect for the mourners.) But most importantly, it illustrates the outpouring of grief, support, and anger provoked by the killing of O’Shae Sibley—whose name deserves to be said and remembered.

          Thanks, Jonathan, for sharing your photo.

Concluding Thoughts.

          Based on the comments posted over the weekend, Trump's posts challenging Judge Chutkan have touched a nerve with readers. Let’s stay calm and be patient. The judge may not react immediately to offensive posts by Trump because she is “developing a record” of persistent abuses—a fact that would help sanctions against Trump stand up on appeal. The bottom line, Trump's outrageous conduct is a sign of his desperation and fear. Let’s recognize it as such and trust that the federal judiciary is powerful enough to constrain Trump.

          Talk to you tomorrow!

Postscript: Jonathan Atkin took the photo of the O’Shae Sibley mourners using an aerial drone. Drone photography is highly regulated and should not be attempted by amateurs, especially near crowds. Jonathan describes his precautions as follows:

Drone flight completed with the following safety protocols:

a.) FAA "B4UFLY" checked and indicated airspace was "free to fly.” (A convenient sliver of airspace in busy NYC.)

b.) Google maps showing Coney Island Ave & P Street were consulted the night before, showing no aerial obstructions.

c.) Wind aloft: minimal. Flew Under 150 feet altitude.

d.) Notified NYPD Aviation as per my recognized practice with a "Situational Awareness Notice," similar to each notice I send for over 26 years producing aerial photographs of large ships, with crewed helicopters in the Port of NY/NJ).

e.) Flew at the site with a "V.O" (visual observer for safety)

f.) Utilized a powerful but small drone with a telephoto lens, providing an oblique angle to ensure I would be distant and not overhead of the gathered crowd.

g.) Chose my launch site behind a barricade in a protected spot. Drone prepped in advance with fully charged batteries on both drone and Remote Controller, to fly as minimally as possible to get the iconic image.

h.) Flew about 8 minutes; understanding drone usage might invoke negativity or provoke concern as drones often do particularly where emotions are high.

i.) Wore a highly visible red windbreaker to be transparent.

j.) The NYPD 66th Precinct was considerate and helpful.