Ouch! Bad news for Trump.

March 22, 2023­

          We are one step closer to accountability for Trump and vindication for the rule of law. Dramatic developments late Tuesday evening strongly suggest that Jack Smith has solid evidence that Trump intentionally lied to his attorney (and the federal government) about his continued possession of classified documents. That conclusion is based on the following facts contained in reports by ABC News, NYTimes, and MSNBC:

• Trump's attorney, Evan Corcoran, drafted a sworn statement (a declaration) affirming that Trump had returned all classified documents after a diligent search.

• That declaration was provided to the FBI and DOJ by Trump's attorneys.

• Although the declaration was drafted by Corcoran and signed by Christina Bobb (another Trump attorney), the information in the declaration was provided to Corcoran by Trump.

• Trump knew the statements in the declaration were false because he had possession of classified documents in his office desk drawer.

• Jack Smith sought testimony from Evan Corcoran regarding the source of information in the declaration.

• Corcoran refused to testify, invoking the attorney-client privilege.

• Smith obtained an order compelling Corcoran to testify, convincing federal Judge Beryl Howell that the attorney-client privilege was being used to conceal a crime (the “crime-fraud” exception).

• Judge Howell reportedly wrote in her order that the DOJ made a prima facie showing that Trump intentionally concealed from Corcoran the existence of classified documents in Trump's possession.

• Judge Howell ordered Corcoran to turn over notes and “transcriptions of personal audio recordings”—suggesting that Corcoran recorded Trump's false statements that Corcoran then used to draft the declaration.

          Corcoran appealed Judge Howell’s order on Tuesday. A panel of judges in the DC Circuit ordered Trump to file briefs by midnight on Tuesday evening and ordered the government to file its reply by 6:00 AM on Wednesday morning.

          The revelation about Trump's efforts to mislead his attorney is contained in a report by ABC News, Sources: Special counsel claims Trump deliberately misled his attorneys about classified documents, judge wrote.

          I have gone to the trouble of listing the above facts in a bullet-point fashion to highlight what prosecutors must prove in order to convict Trump of illegally retaining defense secrets. If the reporting by ABC News and others is accurate, Jack Smith should be able to establish Trump's guilt in a short trial. (Trump would undoubtedly attempt to drag it out, but Smith’s case is simple and direct). Smith also has a strong case for proving that Trump obstructed justice and made a false statement to the FBI and DOJ.

          Here’s my point: For those worried about the strength (or weakness) of the charges Alvin Bragg may bring against Trump, intentionally concealing records from the FBI and DOJ by lying to your lawyer is a very strong case against Trump. And Jack Smith seems to be near the end of the evidentiary trail because he is asking Trump's attorney—Evan Corcoran—to testify against his own client. Evidence doesn’t get much stronger than that.

          But Trump's impending indictment in Manhattan is not irrelevant. Indeed, it is instructive for several reasons:

• Despite Trump's call to “TAKE BACK OUR NATION,” less than a dozen Trump supporters showed up in front of the Manhattan courthouse and Mar-a-Lago. While those numbers might increase when the indictment issues, the paltry showing suggests that Trump's ability to summon a mob has diminished.

• Efforts by the GOP-led House committees and Speaker-in-Name-Only Kevin McCarthy to intimidate Alvin Bragg by threatening investigations are a precursor to similar efforts to interfere with Jack Smith’s prosecution of Donald Trump.

• Republican leaders are already tired of defending Trump or (in the case of DeSantis) are actively using the impending indictment to trash-talk Trump. See Market Watch, DeSantis on possible Trump arrest: ‘I don’t know what goes into paying hush money to a porn star’

         And despite all of the above, Trump remains the front-runner in the GOP contest for the 2024 presidential nomination. If Trump secures the GOP nomination, he will be greatly weakened. If DeSantis secures the nomination, he will have incurred the wrath of Trump's die-hard base, who resent comments like, “I don’t know what goes into paying hush money to a porn star.”

          Democrats cannot count on Republicans to beat themselves, but we should be prepared to exploit the divisions and strife that multiple indictments will introduce into the 2024 GOP primary.

President Xi’s visit to Russia.

          President Xi visited President Putin in Russia today for an extended photo opportunity. The most remarkable aspect of the meeting is that it happened at all. China has kept its distance from Russia since its invasion of Ukraine. While there is a lot more to be said about the visit, the most cogent and succinct analysis came from David Ignatius in the Washington Post:

A strong China is bolstering a weak Russia. That’s the real headline that describes the showy meetings in Moscow this week between the two countries’ leaders. . . . White House spokesman John Kirby on Tuesday rightly called Putin a “junior partner.”

The paradox of the Ukraine war is that Putin’s bid for greater power in Europe has made him weaker.

Though Putin was beaming in Xi’s reflected glow this week, the visit was a reminder of just how isolated the Russian leader is. President Biden hosts a prominent foreign leader at the White House every other week. When was the last time you saw a major foreign leader visit the Kremlin? 

Smart political analyses you should read.

          Understanding what is happening to the Democratic and Republican parties is a question that frequently arises in reader comments and Zoom conferences. I want to recommend two thoughtful articles that will help understand the changes that are rippling through both parties. In my view, both articles suggest that Democrats have every reason to be hopeful but no reason to be complacent.

          The first article is by Perry Bacon, Jr. in WaPo, The GOP gains among ‘voters of color’ are overhyped. Bacon offers a balanced view about how shifting support among “voters of color” affects each major party. He backs his analysis with data from recent polling.

          As to Republicans, he writes,

Overall, the good news for Republicans is that the United States’ growing Asian and Latino populations are not voting overwhelmingly Democratic the way Black people do. So they are not creating a voters-of-color colossus that flips states like Texas and ensures perpetual Democratic victories. That was a doomsday scenario for Republicans that a few years ago seemed like a real possibility.

          As to Democrats, Bacon writes:

The good news for Democrats is that the clear majority of Asian, Black, and Latino voters are still backing them, lifting the party to victories in states such as Georgia and Virginia where White voters are mostly Republicans. The increasing racial and ethnic diversity of the country has been an electoral boon for Democrats — just less of one than was expected.

          Bacon concludes,

The big question is what happens next. . . . I am not sure—and I am not sure anyone else is either. The move to the right among voters of color shows that demographics are not destiny. But their strong Democratic tilt shows that demographics still matter.

          Check out the statistics in the article. You will be less panicked than before. Any loss of support among any constituency is unwelcome news, but some variables are simply out of our control—like the support among Latino Protestants for limiting reproductive liberty. Some losses on that issue are understandable and perhaps unavoidable, given the divergence between the political position of the Democratic party and the religious beliefs of evangelical Latinos.

          A second thoughtful and interesting article is Jonathan V. Last’s article on what happened to the conservative movement in Republican Party. He considers three broad scenarios, each of which offers insight into how the GOP is able to reconcile its support for Trump with its traditional conservative principles. The article is well worth your time. See Jonathan v. Last, The Bulwark / Triad,  The Three Histories of Conservatism.

          One of Jonathan Last’s subpoints in his analysis is to consider whether “Demography is destiny.” Last describes a seismic shift in US demographics over the last century—the decrease in the percentage of the population that identifies as “White” from 89% to 62%—a drop of 27 percentage points (or 30%). That is a huge demographic shift in three generations (and within the living memory of tens of millions of Americans).

          Last comments on the inevitable consequences of that remarkable shift:

Viewed through this lens, a politics centered on white grievance was inevitable in America, irrespective of whatever the Republican party and conservative movement did, said, or believed.

          The demographic trend that gave rise to “white grievance” is accelerating. It is compounded by a similarly dramatic decline in the percentage of Americans who identify as Christian evangelicals. The combination of those trends explains a lot about the current state of the GOP. Check out Last’s article. It may help to refine your understanding of behavior by the Republican base that seems inexplicable.

How to talk about the climate crisis.

          Talking about the climate crisis is challenging. How do you communicate the urgency and potential irreversibility of an impending global catastrophe without pushing people to despair and inaction? That topic is addressed by Hannah Ritchie in Vox, We need the right kind of climate optimism.

          Although the article is about the climate crisis, the suggestions for communicating hard truths about future challenges without disincentivizing people needed to face those challenges has broad applicability. If you lead a grass-roots organization, I recommend the article for your consideration.

          So, what is Ritchie’s recommendation? She frames the answer as finding the balance between optimism and beliefs about how “changeable” the future is. If we tell people that all is lost—i.e., that we are doomed and cannot change the future—we should not expect a lot of volunteers to show up at our next meeting. But it is also wrong to peddle “complacent optimism”—the belief that things will turn out okay without effort on our part because that is what usually happens.

          The sweet spot is to be a “changeable optimist”—a person who is optimistic because they believe they can change the future by their actions.

          I am not doing the article justice. It is a lot smarter and more interesting than my summary, so I urge you to read it. And for what it’s worth, the unofficial motto for this newsletter falls precisely into the sweet spot identified by Ritchie. As I frequently say in my closing, “We have every reason to be hopeful, but no reason to be complacent.” We can bend the future to our will. It won’t be easy, but it can be done.

Concluding Thoughts.

          The World Baseball Classic concluded on Tuesday evening. Japan is now the reigning world champion. (Congratulations!) The game concluded with the two greatest players in baseball (and teammates on the Los Angeles Angels) facing each other on opposite teams. Shohei Ohtani was pitching for Japan to Mike Trout of the US in the top of the ninth inning with two outs. Japan was ahead by one run. The count went to 3-2. And then Mike Trout struck out, swinging at a slider thrown by his Angels teammate and friend. The game was over, Japan won, the US lost, and Trout will forever remember that he struck out in the final at-bat in the world championship.

          The greatest player in baseball fails to get a hit two out of three times at bat. It comes with the territory, and if you can’t tolerate that loss ratio, you shouldn’t be playing baseball. I was a trial attorney for four decades. I won cases I should have lost and lost cases I should have won. But that did not dissuade me from taking the next case to a judge or jury. If you allow the fear of losing to overwhelm your judgments about what is right, you have no business being a lawyer.

          Alvin Bragg, Fani Willis, and Jack Smith are about to bring cases that they should win but might lose. There are no guarantees of success; a hung jury or an acquittal is always a possibility. But they—and we—should not allow the fear of losing to override our judgments about what is right. We must vindicate the rule of law and protect the Constitution. The fact that there is a risk of losing is no excuse for inaction. As always, we have every reason to be hopeful but no reason to be complacent!

          Talk to you tomorrow!