“Painless and classy.”

April 3, 2023

          If all goes according to plan, Tuesday should see a perfunctory but historic event in a Manhattan courthouse. Donald J. Trump will plead not guilty to charges contained in an indictment that will be read from the bench. His lawyer promised over the weekend that Trump’s surrender on Tuesday would be “painless and classy.” Because nothing Trump does can be described as “classy,” it is possible that the statement was an April Fools’ joke. Indeed, if Marjorie Taylor Greene has her way, the indictment will be accompanied by a raucous protest outside the courthouse. If Greene’s protest falls flat, Trump will do his best to rile his supporters with a post-indictment speech from Mar-a-Lago.

          Of course, until Trump appears in the Manhattan courthouse to enter a plea, nothing is certain—especially because some of his advisers are urging Trump to become a fugitive from justice. For example, Trump’s now-disgraced former lawyer, Jenna Ellis, tweeted, “Trump should refuse to surrender to New York and use this opportunity to work with DeSantis, who has said Florida will not assist an extradition request.”

          Trump has no good options to avoid eventual surrender and arraignment in New York, so he should get it over with as quickly as possible. As explained in my last newsletter, Trump must appear in New York federal court in late April to defend himself in a defamation suit brought by E. Jean Carroll.

          One benefit of appearing for the arraignment is that everyone, including Trump, will be able to respond to the actual charges in the indictment rather than the “imagined indictment” that is the basis for the current commentary by pundits. Although the legal community is split over the seriousness and strength of the charges included in the indictment, the true significance is that it prepares the battlefield for more serious indictments to come.

          Indeed, Trump has barely been able to rest his Twitter fingers before being greeted by a worrisome headline in the Washington Post, Justice Dept. said to have more evidence of possible Trump obstruction at Mar-a-Lago. As detailed in the article, federal investigators are gathering strong evidence that after he received a federal subpoena, Trump moved, personally reviewed, and selectively withheld documents from investigators—and then lied about it (through his attorneys).

          Per WaPo,

          [F]ederal investigators have gathered new and significant evidence that after the subpoena was delivered, Trump looked through the contents of some of the boxes of documents in his home, apparently out of a desire to keep certain things in his possession, the people familiar with the investigation said.

          [B]ased on witness statements, security camera footage, and other documentary evidence, [] boxes including classified material were moved from a Mar-a-Lago storage area after the subpoena was served, [and] Trump personally examined at least some of those boxes, these people said. While Trump’s team returned some documents with classified markings in response to the subpoena, a later FBI search found more than 100 additional classified items that had not been turned over.

          If federal investigators can prove the above facts—and it appears they can—an obstruction of justice charge may be the most straightforward federal criminal claim against Trump. Even Bill Barr believes so. Over the weekend, Barr said:

What’s at issue in that case is not the taking of the documents. It’s what he did after the government sought them and subpoenaed them, and whether there was any obstruction. And I think that’s the most serious one out there.

          Recall that Trump’s attorney, Evan Corcoran, who helped draft a false declaration saying all documents were returned after a diligent search, testified before a federal grand jury ten days ago. If Jack Smith obtained the expected testimony from Corcoran—that Trump provided the false information for the declaration—Trump has nowhere to hide.

          This detour into the Mar-a-Lago documents case has a point: The perceived weaknesses in the hush-money case will quickly fade when Jack Smith indicts Trump for obstruction of justice. Indeed, Smith could forego any charges related to the retention of defense documents and bring a simple one-count indictment for lying to the FBI about his retention of classified documents. Of course, the more sensitive the information in the classified documents, the worse the obstruction looks to a jury.

          So, the events of the coming week will matter greatly but may be quickly overshadowed by claims as to which Trump has few defenses. And the government has ample evidence to prove its claims, including video, emails, texts, grand jury testimony, a perjured affidavit, and Trump’s incriminating statements on social media. In other words, don’t get too caught up in the legal debates over the Manhattan DA’s indictment. Those issue matter but may become a sideshow soon.

Why wasn’t Trump indicted earlier for the hush money payments?

          Over the weekend, we also learned why the Manhattan DA delayed bringing the indictment and why the DOJ did not indict Trump in 2021 when Merrick Garland replaced Bill Barr as Attorney General.

          Former Manhattan District Attorney Cyrus Vance, Jr. told Meet the Press that federal prosecutors in the SDNY asked the Manhattan District Attorney’s office to “stand down” while it investigated Michael Cohen and Donald Trump regarding the hush money payments. Although Bill Barr’s DOJ charged Michael Cohen, Bill Barr personally discouraged the SDNY investigation into the hush money payments at to Trump. Thus, the DOJ effectively stalled the Manhattan DA’s investigation of Trump and then quietly suspended its own investigation of Trump. Cy Vance then spent two years litigating with Trump over claims of executive privilege.

          The above explains some of the Manhattan DA’s delay, but why did the DOJ fail to indict Trump after Barr resigned and Merrick Garland became Attorney General in 2021? That question was answered in an article in the NYTimes over the weekend in which a highly placed member of the SDNY gave a post-facto rationalization for the DOJ’s inaction after Barr resigned. See NYTimes, Why was Trump indicted by the Manhattan D.A. over hush money, but not by the Justice Department?

          The short answer is that the post-Barr federal prosecutors in the SDNY thought it would be too difficult to prove Trump’s intent to violate federal campaign finance laws. (“Mr. Trump’s lack of basic knowledge of campaign finance laws would make it hard to prove intent, according to three people familiar with the situation.”)

          I will let legal experts debate the judgment of federal prosecutors’ decision, but the explanation seems unavailing to me for two reasons:

          First, the Federal Election Commission’s Office of General Counsel found that Trump “knowingly and willfully accepted an excessive contribution . . .  and failed to report illegal contributions.” See Federal Election Commission, Statement of Reasons, MUR 7313 (by Commissioners Broussard and Weintraub). If the FEC General Counsel found evidence of a willful and knowing violation, why was the SDNY reluctant to pursue criminal charges because of alleged difficulties of proof of intent?

          Second, the DOJ could have simply indicted Trump for making a false statement and for conspiracy to conceal the false statement—cases in which intent is easier to prove. Such charges do not require proof of intent to violate campaign finance laws, only proof that a false statement was intentionally made to a federal agency.

          Why am I droning on about technical legal issues? Because the failure of Garland’s DOJ to pursue the hush money payments shows an appalling lack of interest in a crime that likely affected the outcome of the 2016 election! And if the reasons for deciding not to pursue Trump in 2021 are any indication, the DOJ under Garland is (was?) operating under a remarkable standard of indifference and aversion to the hard work demanded of prosecutors pursuing justice. If the DOJ had done its job in 2021, we would not be debating the alleged weaknesses of Alvin Bragg’s case in 2023.

          The good news is that Jack Smith does not appear to suffer from the passivity that afflicted the SDNY in cases relating to Trump. We have reason to hope he will act soon.

The hypocrisy of Republican response to the indictment.

          Republican leaders are desperately, feverishly looking for a way to ditch Trump before 2024—but they lack the guts to do it. The growing field of GOP challengers to Trump increased over the weekend with the announcement of former Arkansas Governor Asa Hutchinson.

          Although the Manhattan indictment (and those to come) present a ripe opportunity to abandon Trump, Republican leaders are intimidated by Trump’s base. David Frum has addressed this dynamic in an incisive essay in The Atlantic, Never Again Trump.

          Frum describes the essential dilemma and existential hypocrisy of the Republican response to the Manhattan indictment:

Many prominent Republicans want Trump gone. But they are caught in a trap of their own bad faith: They want prosecutors to do for them the job they are too scared and broken to do for themselves. But they also, for their own crass political advantage, want to pretend to be on Trump’s side during the prosecution—while inwardly cheering on the prosecutors.

Bad faith is a coward’s method, and these bad-faith Republicans are earning the coward’s reward. They hope that the legal system will rescue them from their own humiliating submission, but they are acting to deliver the Republican nomination to Trump for a third time. If Trump does win the nomination, they’ll submit again.

Concluding Thoughts.

          There is more to discuss in the news, but I can hear my Managing Editor’s voice in my head, saying, “I wouldn’t have included the last two stories.” So, I will rest here, except to add that we are thinking of the tens of thousands of Americans affected by the violent tornados over the last several days. Jill and I hope you and your family are safe and well.

          Note Frum’s concluding statement in the excerpt above, “If Trump does win the nomination, they’ll submit again.” All objective evidence supports Frum’s conclusion, highlighting the importance of the Manhattan indictment (and those to come) in weakening Trump.

          But what about the polls that show the indictment is helping Trump’s ratings? Look closely at those polls. They talk in terms of support for Trump among Republicans. Indictments will not boost Trump’s electability among persuadable Independents—our target audience. We should not expend energy trying to reach voters who believe indictments are a net positive for a presidential candidate.

          All of the above highlights the importance of our efforts to register voters, build grassroots support for Democratic candidates up and down the ballot, and ensure turnout. Republicans want Trump gone as a political force, but they want Democrats (or the justice system) to achieve that goal for them. We should do everything we can to accommodate their wish in this instance!

          Stay strong and calm this week! Talk to you tomorrow!

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