Leaving nothing undone.

October 20, 2022

          As soon as the 2022 midterms are over, all attention will turn to the 2024 presidential election. The most significant unanswered question about the 2024 election is when (not whether) Trump will be indicted. All signs point to “sooner rather than later”—a result consistent with publicly known facts and sound prosecutorial judgment. The longer the DOJ delays in indicting Trump, the more difficult it will be to do so from a political standpoint.

          Trump will continue his campaign despite an indictment, and there is no prohibition against a convicted felon being elected to the presidency—even from inside a jail cell. But if Trump is indicted, convicted, or incarcerated, he will be weakened, distracted, and crazed beyond all recognition. The MAGA jackals will make short work of Trump, claiming that they are running not because of disloyalty to Trump but because of duty to the MAGA cause that Trump can no longer serve. Trump, for his part, will not relent in his quest to regain the power to pardon himself. The result will be a political pecking party of grotesque proportions.

          While Democrats cannot rely on the MAGA-GOP to defeat itself, we should recognize that the coming internecine battle will provide Democrats with an advantage in 2024 like none other in history. With that background, let’s examine the “sooner rather than later” proposition asserted in the first paragraph.

          Bloomberg News is reporting that a group of prosecutors investigating Trump’s theft of defense secrets believe they have sufficient evidence to charge Trump with obstruction of justice. See Bloomberg, Trump Prosecutors See Evidence for Obstruction Charges. Whether the DOJ will seek an indictment is a decision to be made by Attorney General Merrick Garland, but experts have described the obstruction case as a “slam dunk.”

          (On a side note, Bloomberg’s reporting is disturbing because it appears that multiple prosecutors and FBI agents are talking to the media about an ongoing investigation. Such disclosures can unfairly prejudice Trump. Comments attributed to FBI agents appear designed to raise political pressure against an indictment. Such politicking in the media by the FBI must stop ASAP.)

          On the underlying crime of theft of defense secrets, Bob Woodward revealed today that Trump admitted that his letters to and from Kim Jong-un were “top secret”—a statement made by Trump after he left the White House with the letters in his possession. The statement is another admission by Trump that demolishes any defense he might assert about a good faith mistake or telepathic declassification of documents. See The Guardian, Trump admitted letters to Kim Jong-un were secret, audio reveals. And, as noted in The Guardian article, Woodward has an audio recording of Trump’s admission. A reasonable prosecutor should conclude that those facts warrant an indictment and a jury trial.

          In a California proceeding involving John Eastman’s attempt to resist a subpoena from the J6 Committee, a federal judge found that Eastman must turn over privileged communications because they are evidence that Trump and Eastman were involved in a criminal conspiracy to defraud the US. See CNN Politics, Trump knew voter fraud claims were wrong, federal judge says as he orders John Eastman emails turned over.

          Federal Judge David O. Carter ruled that Trump knowingly attested to false claims of election fraud. The opinion is here: Order re Privilege of Remaining Documents. Carter wrote in part,

The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.

          On a side note, Judge Carter personally reviewed the hundreds of documents subject to Eastman’s claims of privilege—a path that Judge Cannon should have followed in Trump’s suit to assert privilege over documents seized at Mar-a-Lago. Judge Carter’s actions highlight the judicial malfeasance by Judge Cannon. For an excellent discussion of Judge Carter’s methodology and ruling, see Joyce Vance, Civil Discourse, The Attorney-Client Privilege Doesn't Apply To Committing Crimes.

          Finally, in a matter related to Trump’s civil liability for defamation, Trump’s online posting destroyed his defense that he was acting in an official capacity when he defamed E. Jean Carroll. Trump’s first defamatory statement was made while he was president. He therefore sought the US Department of Justice to intervene on his behalf and substitute the US in his place as the defendant. But on Wednesday, Trump repeated his defamatory statement on Truth Social. We should expect E. Jean Carroll to amend her complaint to add Trump’s most recent defamatory statement. See Vice News, Trump Just Blew Up His Rape Lawsuit Defense.

          Although E. Jean Carroll’s defamation claim is asserted in a civil suit, the case has been scheduled for trial in February 2023. So, the kickoff to the 2024 presidential campaign will be an ugly trial over whether Trump raped E. Jean Carroll in the 1990s. Trump’s initial defense was, “She’s not my type”—a statement that is as crass as it is cruel. There is no way Trump comes out of this defamation trial without significant damage to his brand—regardless of whether he wins. Indeed, since Trump knows only one defense tactic—attack—he will begin his campaign by attacking the credible victim of a sexual assault by Trump.

          All of the above shows how complicated Trump’s run for the 2024 MAGA-GOP nomination will be. And that does not account for possible trials in Georgia for election interference or in federal court for insurrection.

Changes in Covid death rates among White and Black populations.

          The Washington Post published a lengthy analysis of a phenomenon rarely seen in epidemiology: As death rates for one racial classification drop, death rates for another population remain the same (or rise). See WaPo, White covid deaths increasing in U.S., surpassing death rate of Blacks. The WaPo article looks at the phenomenon through multiple lenses and avoids saying in a single sentence the conclusion that underlies every paragraph of the article: After initial reluctance to vaccines in the Black community, government outreach increased vaccination rates, and death rates dropped accordingly. But in the White community, vaccine resistance based on concerns about “personal freedom” caused vaccine rates to stall and death rates to increase. The death rates among the Black and White communities flipped—a rarity in epidemiology.

          In other words, the GOP’s politically motivated resistance to vaccines caused excess and preventable deaths.

A joint Zoom fundraiser for Cheri Beasley for US Senate from North Carolina!

          We are in the final stretch of the midterms, and several campaigns hold the promise of a Democratic upset to flip a Senate seat from red to blue. Cheri Beasley’s campaign for US Senate from North Carolina is one of the races. Cheri is competing for the seat of retiring GOP Senator Richard Burr and has been in a virtual tie with her opponent for months. See Vox, Why Cheri Beasley might be Democrats’ most underrated Senate candidate.

          Cheri has served as the Chief Justice of the North Carolina Supreme Court, a district court judge, and a public defender. Cheri has won two statewide races for her position on the Supreme Court—the second victory with a margin of 401 votes. Republicans recognize Cheri’s potential for an upset and have targeted the North Carolina contest for a flood of late advertising from GOP dark money PACs. See NPR, Key Senate races tighten with a flood of GOP ad spending.

          Three of your favorite groups—this newsletter (Today's Edition), Chop Wood Carry Water, and Markers For Democracy—are joining together to ask their supporters to come to a Zoom fundraiser for Cheri Beasley on Monday, October 24th at 5:30 PM Pacific / 8:30 PM Eastern. Susan Tilson of Markers for Democracy and I will interview Cheri on the state of the race in North Carolina and the challenges America faces in the 2022 midterms and beyond.

          To register, donate any amount at this link: Zoom fundraiser for Cheri Beasley. As with the recent fundraiser for Tim Ryan, by opening the event to everyone who donates any amount, Cheri’s campaign is making the event broadly accessible to people who are interested in learning more about a remarkable candidate who is running a remarkable campaign that could be critical to Democrats’ continued control of the Senate. Hope to see you there!

Concluding Thoughts.

          I don’t want readers to think that this newsletter is turning into a fundraising arm of the Democratic Party, but this is an important moment in our nation’s history. We must do all we can to maximize the likelihood of maintaining control of Congress and expanding Democratic control of state houses, governorships, election offices, school boards, and more. Our Zoom fundraiser for Tim Ryan’s Ohio bid for US Senate was a great success because of the generosity of readers of this newsletter. More than 900 readers contributed to his campaign, several hundred attended the Zoom, and we collectively helped Tim raise almost $100,000. As Tim told the assembled group on Tuesday, the money we raised will make a material difference for his campaign in the final sprint to November 8th. If he wins, you will have helped make that victory possible.

          Let’s see if we can do the same for Cheri Beasley. And if you have already donated, let others step in. This newsletter is opened about 60,000 times per edition. If just one percent of the members of our community step up to help Cheri, the Zoom fundraiser next Monday will be a huge success. Each of you has my heartfelt gratitude for everything that you do—for every postcard and text sent, every telephone call made, every knock on a door, and more. Every effort matters—and we can leave no effort undone.

          For my concluding thoughts tonight, I urge you to read Dan Rather’s essay in Steady, Steadiness in Turmoil - by Dan Rather and Elliot Kirschner. Rather begins,

Let us not pretend everything is okay.

Let us not give up hope. 

Let us not minimize the problems before us. 

Let us not mythologize the past. 

Let us not embrace cynicism. 

Rather ends his essay,

Steadiness is recognizing that the struggle will always continue, but it should also always be accompanied by hope.

Words to live by.

Talk to you tomorrow!