Last day to VOTE NO on Issue 1 in Ohio!

August 8, 2023

[Reminder: If you live in Ohio and haven’t already voted, August 8, 2023, is the last day to VOTE NO on Issue 1.]

          On a day filled with competing motions and orders, let’s start at the end with the good news, and work our way backward. Judge Tanya Chutkan set a hearing “no later than Friday of this week” regarding the government’s motion for a protective order in the J6 prosecution in D.C. In setting the hearing, Judge Chutkan again served notice that she will not brook efforts by Trump's attorneys to delay and prejudice the J6 criminal trial. As with Judge Chutkan’s order over the weekend denying Trump's request for an extension to file briefing, the latest order should provide all Americans with reason to believe Trump will be held to account in a fair trial before a jury of his peers—sooner rather than later.

          Now let’s look at the messy path to that tidy ending.

          The day began with another attack on Judge Chutkan by Trump, who posted that

[Jack Smith] is going before his number one draft pick, the Judge of his ‘dreams’ (WHO MUST BE RECUSED!)”

          Trump's public statement implying that Judge Chutkan is biased is not a winning strategy. Indeed, only two weeks into John Lauro’s representation of Trump, the attorney and client are at odds over whether Trump should file an immediate motion to recuse Judge Chutkan. See Politico, Trump and his new lawyer are not on the same page about judge’s recusal. Indeed, Trump's above attack on Judge Chutkan came after John Lauro said on Monday morning,

We haven’t made a final decision on that issue [recusal]. I think as lawyers we have to be very careful of those issues and handle them with the utmost delicacy.

          Since Trump has handled nothing in his life with the “utmost delicacy,” we should expect to see increasing tension between Trump and his current temporary lawyer, John Lauro.

          As ordered by Judge Chutkan, Trump's attorneys filed a response to the motion for a protective order shortly before 5:00 PM on Monday. The response said, in effect, “Yeah, we plan to use sensitive discovery provided by the prosecution to try this case in the court of public opinion—just as the prosecution claims.”

          For non-lawyers in the crowd, you should know that is NOT a winning argument when opposing a motion for a protective order. An even worse argument—made by Trump's attorneys—is that they want to share sensitive information with “volunteer attorneys” who are not officially part of Trump's defense team. See MSN, Trump seeks latitude in sharing evidence in Jan. 6 case with public and ‘volunteer attorneys’.  The reference to “volunteer attorneys” is broad enough to cover un-indicted co-conspirator Rudy Giuliani.

          Three hours later, the prosecution replied to Trump's brief, saying:

“The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media.

“There is no right to publicly release discovery material, because the discovery process is designed to ensure a fair process before the Court, not to provide the defendant an opportunity to improperly press his case in the court of public opinion.”

          There is more, but you get the picture. But the above back-and-forth is worth hearing once—because it will be a constant theme over the next twelve months before trial.

          Now let’s compare Judge Chutkan’s firm handling of the J6 proceeding to Judge Cannon’s bizarre ruling on Monday in the defense secrets case.

The verdict is in: Judge Cannon is the most incompetent judge in the federal judiciary!

          On Monday, we learned that we no longer need to waste time wondering if Judge Cannon is the most incompetent judge in the federal judiciary. She is! So, take that issue off your plate for the duration of the defense secrets proceeding (or until she is forcibly recused from the case, which should be soon).

          To make a needlessly long story short, the prosecution in the defense secrets case asked Judge Cannon to determine if attorney Stanley Woodward has a conflict of interest in representing multiple defendants and witnesses in that case. In short, some of Woodward’s former clients will be testifying against his current clients. An attorney cannot represent multiple clients/former clients with directly adverse interests except under narrowly prescribed circumstances.

          To support its motion, the prosecution filed exhibits under seal (i.e., confidentially). The motion should have been routine.

          Instead, Judge Cannon refused to accept the government’s exhibits filed under seal and asked defendant Walt Nauta how he felt about the government trying to use grand jury testimony from an ongoing investigation in another jurisdiction.

          What Judge Cannon did was incompetent and biased. It is incompetent because she should not have disclosed the existence of a secret grand jury investigation that is ongoing in a different jurisdiction. As Andrew Weissman tweeted,

"Judge Cannon clearly shows her ignorance (bias? both?); the obstruction crimes that were investigated are charges that could have been brought in Florida or in DC and thus could be investigated in either district. And there was conduct that is alleged to have occurred outside of Florida.”

          Nor is Judge Cannon Walt Nauta’s attorney; she should not be suggesting specious arguments for Nauta to raise in his defense.

          The reaction against Judge Cannon’s order was swift and brutal. Professor Tribe said,

“Judge Cannon continues her dopey and constitutionally dubious usurpation of the executive branch’s investigative and prosecutorial prerogatives.”

          Joyce Vance tweeted,

“Looks like it is a good week [for the prosecution] to ask the 11th Circuit to replace the judge.”

          Judge Cannon’s order was either incompetent or biased, as Andrew Weissman noted. Either way, her shelf life on the defense secrets case is limited. Given the humiliating rebuke issued by the 11th Circuit in the search warrant case brought by Trump, you would think Cannon would go out of her way not to make stupid mistakes. She apparently can’t—or won’t—help herself. The best thing she can do to preserve any hope of rehabilitating her future reputation is to issue a voluntary order removing herself from the case. But, it’s only a matter of time. She can do it, or the 11th Circuit can do it for her.

More importantly, we now know that Jack Smith is not done investigating the defense secrets case.

          An upside of Judge Cannon’s disclosure of an ongoing grand jury proceeding is that we now know that Jack Smith is not done investigating the defense secrets case. For example, the other proceeding referred to by Cannon might be in New Jersey, where Trump transported and disclosed the existence of one highly confidential document relating to the US plan of attack against Iran. That is a positive sign.

          Another positive sign appeared in the Washington Post on Monday, which reported that Jack Smith is still pursuing additional indictments in the fake electors scheme:

“The Smith investigation into the electors does not appear to be over. In recent days, federal prosecutors have issued a new raft of subpoenas about the elector scheme in multiple states, according to people with knowledge of their activities who spoke on the condition of anonymity to discuss sensitive information.”

          Together, the above disclosures suggest that Jack Smith is not resting after indicting Trump in Florida and D.C. He appears to be preparing other indictments relating to the attempted coup and the unlawful retention of defense secrets.

DeSantis concedes that Trump lost the 2020 election.

          Although it took him more than two years to say it out loud, Ron DeSantis finally admitted that Donald Trump lost the 2020 election. See NYTimes, DeSantis Bluntly Acknowledges Trump’s 2020 Defeat: ‘Of Course He Lost’.

          Why did DeSantis have a change of heart about Trump's 2020 status? Money. Per the Times,

Robert Bigelow, who contributed more than $20 million to a super PAC backing Mr. DeSantis, told Reuters last week that he would not give more money unless Mr. DeSantis adopted a more moderate approach.

          Trump responded through a spokesperson saying that DeSantis “should stop being Joe Biden’s biggest cheerleader.”

          All of this is good news for Democrats and Joe Biden. Open warfare among the GOP candidates can only inure to the benefit of Democrats. At the very least, it cuts down the amount of time that Republicans will spend spreading lies about Joe Biden.

Speaking of Joe Biden . . . .  

          I occasionally review the administration’s website—WhiteHouse.gov—for resources about Biden. I checked the site this evening and was surprised to see that it had undergone a complete overhaul. Instead of listing daily events and activities, the site is thematically designed to showcase Biden’s accomplishments. For example, the leading article is titled, “Biden-⁠Harris Administration High-Speed Internet Investments Spur Made-in-America Manufacturing Boom.” That is not “breaking news,” but it is news that Democrats can use to tout Biden’s accomplishments. The site is formatted around the theme, “Investing in the American people.”

          So, someone in the White House is being responsive to criticisms regarding messaging. Good!

John Eastman doesn’t get it.

          John Eastman was the architect of the attempted coup, providing Trump with an admittedly illegal plan to delay or prevent the count of electoral ballots. He is currently an un-indicted co-conspirator in the J6 trial and the respondent in an action by the California State Bar to revoke his license to practice law.

          Eastman has found time in the last two weeks to file a suit in Colorado that seeks to disenfranchise independent voters in primary elections. And he is making media appearances in which he is explaining that “Yes, we really did mean to overthrow the government on J6 because the Declaration of Independence says we can.” In other words, he has learned nothing and is an unrepentant insurrectionist.

          On Monday, Eastman asked the California State Bar to delay the completion of the hearing to revoke his license because he believes he will soon be indicted by Jack Smith. See Talking Points Memo, Concerned He May Be Charged, Eastman Asks For Delay In Disbarment Proceedings.

          And get this: Eastman wants his trial delayed until the criminal charges against Trump are finally resolved . . . which will take several years. In the meantime, Eastman will continue to undermine democracy in the US. The California State Bar should deny Eastman’s request to delay the proceeding to revoke his law license.

Concluding Thoughts.

          As usual, our biggest threat—climate change—is overwhelmed by more immediate threats in the daily news. Although “the weather” is not “the climate,” weather extremes this summer have provided dramatic testimony about the reality of human-caused climate change. Readers continue to praise Jessica Craven’s leadership and recommendations regarding climate change. See this special edition of Jessica’s Substack blog, which focuses on fighting human-caused climate change: Chop Wood, Save the Earth! by Jessica Craven.

          Many readers report that they have downloaded the Climate Action Now app recommended by Jessica. If you are looking for practical, immediate, and meaningful ways to help fight human-caused climate change, check out the Climate Action Now app. As we continue to process the daily torrent of developments regarding Trump's criminal trials, let’s not lose sight of the threat of climate change. While we each play a role in fighting climate change, nothing is more important than electing leaders who understand and prioritize the existential threat posed by human-caused climate change.

          One final note: If you live in Ohio and haven’t already done so, please VOTE NO on Issue 1 on the final day of voting—Tuesday, August 8, 2023!

          Talk to you tomorrow!