More progress
April 5, 2024
Thursday was a consequential day in domestic and international developments. The arc of the news continues to show President Biden acting in the interests of the American people and the United States and its allies while Trump is struggling to contain spiraling legal and financial jeopardy.
The most important development was President Biden’s 20-minute telephone call with Prime Minister Netanyahu. Their call has been the subject of differing reports based on media interpretation and emphasis. The White House released an official summary, here: Readout of President Joe Biden’s Call with Prime Minister Netanyahu of Israel | The White House.
The entirety of the White House summary is below. (I have added paragraph breaks to enhance readability).
President Biden spoke by telephone with Prime Minister Netanyahu. The two leaders discussed the situation in Gaza.
President Biden emphasized that the strikes on humanitarian workers and the overall humanitarian situation are unacceptable.
He made clear the need for Israel to announce and implement a series of specific, concrete, and measurable steps to address civilian harm, humanitarian suffering, and the safety of aid workers.
He made clear that U.S. policy with respect to Gaza will be determined by our assessment of Israel’s immediate action on these steps.
He underscored that an immediate ceasefire is essential to stabilize and improve the humanitarian situation and protect innocent civilians, and he urged the Prime Minister to empower his negotiators to conclude a deal without delay to bring the hostages home.
The two leaders also discussed public Iranian threats against Israel and the Israeli people. President Biden made clear that the United States strongly supports Israel in the face of those threats.
Several hours after the call between President Biden and Prime Minister Netanyahu, Israel announced it would open a second crossing for humanitarian aid. See NYTimes, Israel Agrees to Open Erez Crossing for Gaza Aid After Biden Pressure, U.S. Says. (Article accessible to all.)
Judge Cannon issues evasive order after Jack Smith challenges her ruling on pivotal defense asserted by Trump
In a just world, Donald Trump would already be serving time in prison for unlawfully retaining defense secrets after he left office. But Judge Aileen Cannon has delayed the trial of a simple and straightforward case by engaging in bad-faith tactics intended to unfairly benefit Trump and prejudice the people of the United States.
She recently ordered the parties to engage in a fantasy exercise of providing “preliminary jury instructions” that presumed Trump's assertion of the Presidential Records Act is a meritorious defense to the charge of unlawfully retaining defense secrets. Her nonsensical order contradicted rulings by the 11th Circuit Court of Appeals that rebuked Judge Cannon’s earlier effort to adopt Trump's assertion that the PRA requires dismissal.
When Jack Smith filed the “preliminary jury instructions” ordered by Judge Cannon, he told her that (a) the suggestion that the Presidential Records Act was a defense to the indictment was patently wrong, and (b) if she believed that the PRA applied to the trial, she needed to tell Jack Smith now so he could take the matter to the 11th Circuit for review (by way of a writ of mandamus).
Implicit in Jack Smith’s brief was the suggestion that he would ask the 11th Circuit to remove Judge Cannon from the case if he was forced to go to the 11th Circuit for a third time.
On Thursday, Judge Cannon unexpectedly denied Trump's motion to dismiss the indictment based on the Presidential Records Act defense—for now. She also expressed feigned surprise and bruised feelings that Jack Smith would demand that she state her view about the legal validity of the nonsense jury instructions she ordered Jack Smith to file.
Here is the operative language from her order denying (for now) Trump's PRA defense:
For these reasons . . . the Presidential Records Act does not provide a pre-trial basis to dismiss [the indictment].
Separately, to the extent the Special Counsel demands an anticipatory finalization of jury instructions prior to trial, prior to a charge conference, and prior to the presentation of trial defenses and evidence, the Court declines that demand as unprecedented and unjust.
The Court’s Order soliciting preliminary draft instructions on certain counts should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case.
Nor should it be interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions and the questions to be submitted to the jury in this complex case of first impression
Note that Cannon rules only that the PRA does not justify dismissal “on a pre-trial basis”—leaving open the possibility that she will dismiss the case after the jury is sworn but before the case goes to the jury—a dismissal that could not be appealed by Jack Smith.
Note also that Cannon writes that her request for “preliminary draft instructions” was a meaningless exercise that has no bearing on the trial. To be clear, federal judges do not engage in meaningless exercises just for kicks and giggles. Cannon requested preliminary jury instructions because she is entertaining application of the PRA defense when ruling on evidence to be introduced at trial.
Jack Smith faces a tough choice. Judge Cannon blinked when Smith called her bluff and threatened to seek review in the 11th Circuit. She removed the immediate cause for a writ of mandamus while reserving the issue for future action when it will be impossible for Jack Smith to obtain review of her ruling.
Under the circumstances, Jack Smith should file some type of motion—like a motion for clarification or motion in limine—asking Judge Cannon to declare that the PRA defense does not and will not be applied during trial. If she refuses to rule in favor of Jack Smith promptly, Smith should seek review in the 11th Circuit on the present record.
Bottom line: Judge Cannon is a disgrace and a threat to democracy.
Judge McAfee denies Trump's motion to dismiss on First Amendment Grounds
Trump filed a motion to dismiss the Georgia RICO case on First Amendment grounds, claiming that his effort to induce the Georgia Secretary of State to “find” 11,780 votes was protected by the First Amendment. Judge McAfee rejected Trump’s defense and denied his motion to dismiss. The order is here: Order on Defendants’ Motions to Dismiss Under the First Amendment.
[T] he law does not insulate speech allegedly made during fraudulent or criminal conduct from prosecution under the guise of petitioning the government.
Even core political speech addressing matters of public concern is not impenetrable from prosecution if allegedly used to further criminal activity.
In general, the opinion by Judge McAfee was well-written and bodes well for his management of the trial.
No Labels withdraws from 2024 presidential race
The misguided third-party effort to come up with a “unity candidate” to run a third-party challenge against President Biden has declared defeat. See No Labels has ended its 2024 presidential bid | AP News.
This development should be welcomed by everyone seeking to defend democracy by re-electing President Biden. No Labels was always a stalking horse for Donald Trump that received significant funding from Trump donors. See Mother Jones, No Labels Exposed: Here’s a List of Donors Funding Its Effort To Disrupt the 2024 Race.
RFK Jr. says January 6 insurrectionists are “activists”
Speaking of stalking horses for Donald Trump, RFK Jr. revealed his true colors on Thursday when his campaign sent an email calling the January 6 insurrectionists “activists” who have been stripped of their constitutional liberties. See Washington Post, RFK Jr. campaign describes Jan. 6 defendants as ‘activists,’ then disavows email. (Accessible to all.)
Although Kennedy later tried to disavow the email, the statements in the email align with prior comments by Kennedy suggesting that he would consider pardoning January 6 defendants. Per the Washington Post,
Kennedy previously told The Post that he accepted the results of the 2020 election but would not commit to accepting the results of the 2024 election. He said he would consider pardoning those convicted of their role in the riot.
Kennedy is a candidate running away from positions he has espoused in the past, for good reason. He is Trump in disguise, with an extra dollop of vaccine conspiracy theory.
Trump's appeal bond challenged by New York Attorney General Letitia James
I noted yesterday that the clerk’s office in Manhattan returned Trump's $175 million bond from Knight Speciality Insurance due to incomplete documentation. Thursday, A.G. Letitia James filed a motion challenging the validity of the bond under New York law. See CNN, New York AG questions out-of-state underwriter of $175 million Trump bond | CNN Politics.
Per CNN,
Knight Specialty and its parent company are not authorized to issue surety bonds in New York state and therefore can’t obtain a certificate from the New York Department of Financial Services, which is usually part of a bond package. The attorney general’s office asked for additional information within 10 days, or it said the bond will not be in effect.
Per CNN, it also appears that Knight does not have sufficient surplus funds to cover the amount of Trump's bond:
The new documents indicate Knight Specialty Insurance Company had . . . $138 million in surplus [available] to policy holders.
[Attorney Bruce] Lederman said in New York a company is not supposed to underwrite a bond for more than 10% of its surplus cash.
If the CNN reporting is correct, Knight Specialty can underwrite an appeal bond in New York no larger than $13.8 million—far lower than the $175 million bond it issued for Trump.
Judge Engoron has set a hearing for April 22 on AG Letitia James’s objection to the bond issued by Knight Specialty Insurance. Stay tuned; Trump may not have provided a valid appeal bond. If not, his assets will be subject to seizure once again.
A good development in Nebraska
Unlike most states, Nebraska allows an allocation of its electoral votes (instead of a “winner take all” approach used by 48 other states). In 2020, Joe Biden won a single vote from Nebraska by winning a majority of the vote in the district that encompasses Omaha.
On Thursday, the Nebraska legislature decisively rejected a bill to convert to a “winner take all” approach. See Talking Points Memo, Trump’s Electoral College Mischief In Nebraska Fails. As a result, Joe Biden still has the possibility of winning a single vote in Nebraska—even if Trump carries the popular vote in that state.
In the 2024 election, the single electoral vote from the Omaha district vote could pave the way to 270 votes for Joe Biden. The defeat of the “winner take all” bill is an important victory for Joe Biden.
Opportunity for reader engagement
The Civics Center is a nonprofit, nonpartisan organization that provides free training and resources to help make voter registration part of every high school in America. Many readers of this newsletter are involved in the important work of the Civics Center—and I recommend it to readers at every opportunity. The Civics Center is offering a great event featuring Simon Rosenberg, described below. My wife and I are on the host committee for the event. We hope you will join us!
Please join the Civics Center on Thursday, April 18 at 6 pm – 8pm Eastern for “All in for 18-Year-Olds with Special Guest Simon Rosenberg.” Please join The Civics Center to hear from Laura W. Brill, Founder & CEO about registering our youngest voters in their high schools before Election Day. With registration deadlines just a few months away, the 2024 high school graduation season is a critical time to ensure 18-year-olds are registered and ready to vote.
The numbers for 18-year-olds are powerful: In Arizona, alone, where the 2020 margin of victory was 10,000, roughly 90,000 turn 18 this year. Registration increases the likelihood of youth turnout: 86% of registered youth turned out in 2020.
Register by clicking this link here: All in for 18-Year-Olds: Laura Brill with Simon Rosenberg.
Concluding Thoughts
My wife and I are in Texas, heading to the San Antonio area to observe the eclipse that will occur on April 8. Many people across the US are worried that they will not see the eclipse because of clouds predicted to cover most of the nation on Monday. So, I will make a bold prediction: The total eclipse will occur regardless of the cloud cover that might obscure our view of a rare and beautiful astronomical event.
There is a deep metaphor buried in the above description that compares our current political situation and the possibility of an obscured eclipse. I will let you work out that metaphor. I need to pack for a travel day tomorrow.
I will send a “Today’s Edition” embossed ballpoint pen (value: $0.79) to the person who posts or emails the most apt metaphor. I may publish the winner in tomorrow’s newsletter.
Tonight, I will leave you with the astronomer’s greeting: “Clear skies!”
As when we experience a cloudy day, we know the sun is still there but only obscured by darkness. Our work to protect our country's democratic values isn't always a sunny walk in the park, but a dark journey that demands we believe in brighter days and the return to the light. Believing is the operative word.
In spite of all the distraction and noise, there WILL be an election in November. Let us be preprepared!