“It’s not the crime, it’s the cover-up.”

July 28, 2023

          Donald Trump is an idiot. He is many other things, but he is self-evidently an idiot of epic proportions. Faced with dead-to-rights criminal liability for unlawful retention of defense secrets, he did the only thing that could make his jeopardy worse: He engaged in an amateurish effort to destroy video evidence of his prior effort to destroy evidence (by removing classified documents from a storage room after receiving an FBI subpoena). Got that? Destroying evidence of his effort to destroy evidence. Destroying Evidence Squared = Prison Time. It doesn’t get any more idiotic than that.

          Trump famously does not use email or text. He therefore apparently does not know that almost everyone else in the world uses email and texts with such frequency that they create an electronic diary of their daily activities—including their efforts to destroy evidence. If Trump believed his efforts to destroy the surveillance tapes would remain secret, he is an idiot—as proven by the Superseding Indictment filed by special prosecutor Jack Smith on Thursday in the defense secrets case.

          The Superseding Indictment describes conversations involving the head of maintenance at Mar-a-Lago—Carlos De Oliveira—asking another employee (Employee Number 4) to “delete” the server containing the surveillance video of Trump’s earlier attempt to destroy evidence. Paragraph 84 of the Superseding Indictment alleges the following:

De Oliveira told Trump Employee 4 that "the boss" wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe that he would have the rights to do that. Trump Employee 4 told De Oliveira that De Oliveira would have to reach out to another employee who was a supervisor of security for Trump's business organization. De Oliveira then insisted to Trump Employee 4 that "the boss" wanted the server deleted and asked, "What are we going to do?"

          Based on the Looney Toons effort to destroy the surveillance video (an effort that failed), Jack Smith has added charges for obstruction of justice against Trump, his aide/co-defendant Walt Nauta, and newly charged defendant Carlos De Oliveira.

          But it gets worse. After De Oliveira talked about destroying the server containing the surveillance video, Trump, Nauta, and a representative of a Trump PAC discussed whether De Oliveira was “loyal.” When they concluded that De Oliveira was loyal, Trump contacted De Oliveira to inform him that the Trump PAC would pay for his attorney. Per the Superseding Indictment,

Just over two weeks after the FBI discovered classified documents in the Storage Room and Trump's office, on August 26, 2022, Nauta called Trump Employee 5 and said words to the effect of, "someone just wants to make sure Carlos is good." In response, Trump Employee 5 told Nauta that De Oliveira was loyal. . . . That same day, Trump called De Oliveira and told De Oliveira that Trump would get De Oliveira an attorney.

          It thus appears that Trump is raising money (indirectly) through his PACs to help buy the silence of his co-conspirators by paying for their lawyers—so long as they remain “loyal.” Straight out of The Godfather Sopranos Goodfellas. I wonder how Trump’s donors feel about their money being used for such nefarious purposes.

          But it gets worse for Trump. The Superseding Indictment includes a count related to unlawful retention of the “plan of attack” against Iran that Trump displayed to Mark Meadow’s biographer at the Trump Bedminster Golf Resort. See page 33, para. 11. When the original indictment was filed, prosecutors (apparently) did not have a copy of the plan of attack. Now they do. Prosecutors thus have an unassailable right to play the audio tape of Trump showing the classified plan of attack to Meadows’s biographer.

          A strong indictment was made stronger by the added counts for obstruction of justice and the related evidence. Dennis Aftergut details those reasons in his article in Slate. The Superseding Indictment will not only have a powerful impact on the jury but the American people, as well. Aftergut writes:

[T]he superseding indictment does something for the nation. Trump himself, and his many defenders, have repeated the argument falsely equating the classified documents found in President Joe Biden’s office and those that Trump has claimed he had a right to. Many citizens not paying close attention may have fallen for that talking point.

But even for citizens who have to date failed to see the difference between Biden’s immediate cooperation in returning the documents in his home versus Trump’s 18 months of stonewalling, here we have something new: There is simply no way to misunderstand the new, even sharper contrast between Biden and Trump: There is no report that Biden sought to conceal anything from a grand jury, much less to have security camera footage obliterated.

And by the way. If, as Trump claims, he had every right to keep the classified documents after his presidency ended, why on earth did he feel a need to destroy tapes or a server?

          If Trump is not elected president in 2024, there is a strong likelihood that he will be sentenced to prison in the national defense secrets case, at least. More reason for Democrats to work harder than ever to ensure that Joe Biden is re-elected.

House Republicans declare defeat, go home for vacation.

          Earlier this week, I asserted that the talk of impeachment was designed to conceal the disarray of House Republicans. I wrote:

        Like the Wizard of Oz—who created distractions from behind a curtain to conceal his impotence—House Republicans must distract the public’s attention from their inability to legislate. Republicans hold the majority in the chamber of Congress that must originate all spending bills, but the GOP caucus has been rendered impotent, riven by petty feuds, outsized egos, and monumental ignorance. What better way to distract attention from their shortcomings than to chase wild conspiracies that forever recede into the distance like mirages, conveniently disappearing when Democrats demand evidence to support baseless charges?

          On Thursday, Speaker McCarthy sent House members home for a six-week vacation (which they call a “work period”) even though the GOP has passed only one of twelve funding bills it must pass before the October 1, 2023 date for a government shutdown. See Politico, House GOP bails on funding fight amid conservative impasse.

          The failure to pass eleven of the twelve funding bills prior to the shutdown date is a function of the internal fights in the GOP caucus. Per Politico,

House Republican leaders on Thursday punted a second government funding bill and dismissed lawmakers for a six-week break from Washington, hamstrung by conservative demands for more spending cuts and internal division over social issues like abortion.

Speaker Kevin McCarthy ’s leadership team hoped to pass as many of their 12 annual funding bills as possible on the floor this month, aiming for a show of Republican unity that might bolster the House in a coming standoff with the Senate over federal funding. Now House GOP lawmakers are leaving the Capitol on a note of disarray rather than cohesion, with a single passage vote to tout on a veterans funding bill and two spending measures still stuck in committee.

          All Americans should be concerned about the dysfunction in the GOP Caucus in the House—which may cause a government shutdown in October. Tens of millions of Americans would be injured by such a shutdown. But we should also recognize that the vehement attacks on President Biden and Hunter Biden are part of an effort to distract attention from the GOP’s inability to govern.

If Mitch McConnell can’t finish his term, what happens?

          Mitch McConnell has experienced several falls over the last six months. A fall in March 2023 sent him to the hospital with a concussion for several days. On Wednesday of this week, McConnell appeared to “freeze” mid-sentence during a news conference. Video here. McConnell claims he is “fine,” but felt “lightheaded” for a moment.

          What happens if McConnell cannot serve his full term (through 2026)? Under Kentucky’s Constitution,

Vacancies in all offices for the State at large . . . shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law.

          But . . . the Kentucky legislature passed a bill in 2021 providing that the governor is limited to appointing candidates from a list provided by the executive committee of the party of the person vacating a US Senate seat (here, the Kentucky Republican Party). The Kentucky GOP executive committee includes Mitch McConnell and Rand Paul.

          Kentucky’s Democratic Governor, Andy Beshear, vetoed the above bill in 2021, but the GOP legislature overrode his veto. When he vetoed the bill, Governor Beshear provided a letter asserting that the bill violated the state constitution and the 17th Amendment to the US Constitution. Beshear wrote,

[T[he Seventeenth Amendment to the United States Constitution provides that “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

Senate Bill 228 is contrary to the United States Constitution. The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications for a United States Senator set forth in the Constitution.

          If Mitch McConnell vacates his seat in the Senate, Governor Beshear appears intent on appointing a Democrat to fill the seat. See Lexington Herald-Leader, Ky. Dems say Beshear could challenge senate vacancy law. Such a move will undoubtedly lead to litigation.

          It appears that Governor Beshear would likely appoint a Democrat, whose tenure would be challenged. (The appointment is for a maximum of eighteen months.) Would the appointee be seated in the US Senate? That depends, in part, on which party is in charge of the Senate. But the possibility of a vacancy in the Kentucky Senate seat is another reason for Democrats to go all out to retain control of the Senate in 2024—so a Senate Democratic majority can seat a contested replacement for Mitch McConnell (if necessary).

Concluding Thoughts.

          We appear to be very close to seeing indictments of Trump in Georgia state court and D.C. federal court for election interference. Those indictments will come hard on the heels of shocking evidence of a cover-up in the defense secrets case. Although the point of the criminal prosecutions is to defend the Constitution and the rule of law, it is inconceivable that the allegations will not weaken Trump politically. Again, that’s not the point, but it is the inevitable outcome. Further indictments will not ensure Trump’s defeat, but they make it more likely.

          Although Joe Biden has been silent up to this point, there will be a time when Biden (or his surrogates) can and should become more aggressive in raising Trump’s criminality as a ground for voting against him. Until that happens, Chris Christie appears to be up to the task. But we cannot rely on Republicans to defeat Trump. We must do so affirmatively (by promoting Joe Biden’s accomplishments) and defensively (by highlighting Trump’s unfitness).

          I wish we could leave the past behind us and focus only on the future and Biden’s accomplishments. But Republicans have taken that choice away from us by peddling baseless conspiracy theories about “the Biden crime family” that may trouble some voters. We need to give them reasons to vote for Joe and reasons to vote against Trump.

          It is exhausting, I know. But it comes with the territory of defending democracy against MAGA extremism. So, let’s not celebrate the indictments to come. Let’s figure out how we can best use them to our political advantage while also touting Biden’s accomplishments. We can do that. Start by reading and then sharing the Superseding Indictment. And share this newsletter as a way of encouraging others to join us in our effort to defend democracy and restore the rule of law.

          I hope to follow a reduced newsletter schedule over the weekend. But if indictments are released on Friday, I will publish special editions.

          Stay out of the heat this weekend, if you can!

          Talk to you tomorrow!