Q: How can you tell when Trump is incriminating himself?

A: His lips are moving.

          In Donald Trump’s interview on Sean Hannity’s program Wednesday evening, Trump confessed to critical elements of the espionage charge for which he will be indicted. The appearance has drawn derision for Trump’s claim that he could declassify documents “even by thinking about it.” But as Maggie Haberman of the NYTimes has correctly noted, Trump’s subsequent statement deserves scrutiny. Trump said, in part,

If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified,’ even by thinking about it because you’re sending it to Mar-a-Lago or wherever you’re sending it. And there doesn’t have to be a process. There can be a process but there doesn’t have to be. You’re the president. You make that decision. So when you send it, it’s declassified. I declassified everything. . . . Now, I declassified things and we were having a lot of problems with [the National Archives].

In that word salad answer, Trump admitted the following:

• He knew the documents contained classified information, i.e., defense secrets important to US national security;

• He made a conscious decision to send documents containing defense secrets to Mar-a-Lago.

• He had “problems” with the National Archives, which demanded the return of the documents.

          Under the relevant section of the Espionage Act (18 USC 793(d)), Trump can be convicted if the government demonstrates the following:

1. Trump came into lawful possession of information;

2. relating to the national defense;

3. that he had reason to believe could be used to the injury of the United States;

4. and willfully retained the information after a demand for its return by an employee of the US entitled to receive it.

          Trump’s statements to Sean Hannity eliminate the possibility that Trump mistakenly packed up defense secrets and sent them to Mar-a-Lago. Instead, the statements establish that Trump knew the information was “classified.” (“I declassified everything . . . because you’re sending it to Mar-a-Lago.”)

          By definition, material is classified only if “disclosure of the information reasonably could be expected to result in damage to the national security.” By admitting that the materials he sent to Mar-a-Lago were classified when he received them, Trump concedes that unauthorized disclosure of the documents could “damage national security.”

          Thus, Trump’s statements to Hannity establish elements (1) through (3) of the crime of espionage, as listed above. (Go back and read them to confirm for yourself.)

          The fact that Trump refused to return defense secrets to the US after a demand by the National Archives is established by the fact that the FBI seized classified documents during its search of Mar-a-Lago. That fact establishes the final element of the crime, number (4), above.

          Hence, merely by combining Trump’s statements to Hannity and the fruits of the FBI search, the DOJ could reasonably expect a jury to convict Trump. The only question is whether and when the DOJ will indict Trump.

          As you cringe and wince at the ludicrous statements Trump is making on Truth Social and Fox “News”, take heart in the fact that every statement he is making undermines his defenses and is being scrutinized by the DOJ and federal judges. Want proof? Read on!

Special Master Dearie orders Trump lawyers to submit sworn statements backing up Trump’s claims on Truth Social.

          Trump’s lawyers proposed Judge Raymond Dearie as a special master because they believed Dearie would be skeptical of the FBI and DOJ. They could not have been more wrong and will live to regret their mistake for a very long time. On Thursday, Judge Dearie ordered Trump’s attorneys to provide sworn testimony backing up baseless claims Trump is making on his vanity media platform, Truth Social. In other words, Trump can no longer say one thing on Truth Social (or Sean Hannity’s program) and another thing in court.

          On Thursday, Judge Dearie filed a Class Management Plan that ordered Trump to provide a “declaration or affidavit” listing “specific items” that he claims were planted by the FBI at Mar-a-Lago. (“List[ing] items [on the Detailed Property Inventory] that were not seized from the Premises on August 8, 2022.”)

          Judge Dearie punctuated that order with the words, “And I am not kidding; no more smoke-and-mirrors.” Well, actually, Judge Dearie said the following:

          This submission shall be Plaintiff’s final opportunity to raise any factual dispute as to the completeness and accuracy of the Detailed Property Inventory.

          Ouch! But Dearie went even further, saying that if there was any dispute between the DOJ and Trump regarding the accuracy of the Detailed Property Inventory after Trump’s lawyers submitted their witness affidavits, Dearie would schedule “an evidentiary hearing at which witnesses with knowledge of the relevant facts will provide testimony.” Double ouch!

          Dearie has foreclosed Trump’s lawyers from playing rope-a-dope and dodge-ball in the courtroom and has put Trump on notice that baseless claims made on social media are relevant to the claims and defenses in the lawsuit Trump filed to recover the documents.

          If Trump’s lawyers were smart, they would file a motion to dismiss their lawsuit against the DOJ and get out of Dearie’s courtroom ASAP. The last thing they want is anyone testifying to anything under oath. But that is the price of admission in Judge Dearie’s courtroom—as it should be in every federal court in the land.

          But do not worry; Trump will not dismiss his suit; that would be a public admission of a colossal failure in his legal strategy. Instead, Trump will press ahead, further incriminating himself and compromising his ability to mount a defense against an indictment for espionage.

Russia in crisis.

          Anne Appelbaum explains in The Atlantic that Putin’s Kremlin Is in Disarray. She describes the drama surrounding Putin’s speech this week in which he announced a partial national mobilization:

 If an American president announced a major speech, booked the networks for 8 p.m., and then disappeared until the following morning, the analysis would be immediate and damning: “Chaos, disarray, indecision. The White House must be in crisis.”

In the past 24 hours, this is exactly what happened in Moscow.

          Putin’s declaration of partial mobilization will do little to change the course of the Ukraine war in the short term. As one knowledgeable reader (TCinLA) noted in the Comments section yesterday (with slight edits for context):

          Those “300,000 reservists” Putin is activating aren’t like American reservists who can report in “ready to go.” The Russian reservists are more like what we would call the “inactive reserves,” and their training isn’t any better than the incompetence demonstrated by the Russian Army. . . Russia has no place to house or train these 300,000 activated reservists, and it will take at least six months for them to show up on the battlefield.

          Not to mention they can’t replace the lost tanks and armored personnel carriers because they cannot build new ones without computer chips they’re cut off from. They’re reduced now to using pre-1980s “dumb” equipment . . . .They’ve lost 80,000 KIA/WIA since February. Right now, every one-way airline ticket out of Russia has been sold at “scalper” prices. Nearly 2,000 people have been arrested for demonstrating against the war in the past 24 hours.

          Although Putin’s announcement promised that the mobilization would include only “reservists,” that pledge was broken within the first 24 hours of the mobilization. As reported in the Institute for the Study of War,

A university student in Buryatia released footage [of] military police pulling students from lessons, reportedly for mobilization, despite Russian Defense Minister Sergey Shoigu repeatedly stating that Russian students will not be mobilized.

          Moreover, detained protestors are being served with mobilization notices, and conscription officials are engaging in heavy-handed tactics, such as calling up men by phone [to] issu[e] notices in the middle of the night, and notifying men of their mobilization via state social benefits websites.

          Such heavy-handed tactics are provoking fury among the populace and driving a surge in emigration from Russia. See WaPo, Putin faces fury in Russia over military mobilization.

          The mobilization crisis could not have come at a worse time for Russia’s international standing. It has few friends left on the world stage, and even those friends are backing away from Russia as it prepares sham referendums to annex provinces in Ukraine. See Patrick Wintour in The Guardian, Patience with Putin may be ebbing among friendlier countries. (“Turkey, India and China respond coolly to news of planned referendums in Ukrainian regions occupied by Russia.”)

Progress on Electoral Count Act reform.      

          With support from only nine Republicans (all leaving Congress this term), the House passed a proposed reform to the Electoral Count Act. The Senate has a similar bill under consideration, with support from ten Republican Senators who serve as co-sponsors of the bill. See Manchin, Capito Announce 10 Democrat, 10 Republican Cosponsors for Bipartisan Electoral Count Act Reform.

          The House and Senate bills differ, and some election law advocates are criticizing the Senate version of the bill. But those differences can be eliminated in a joint conference between the House and Senate. Given the uncertainty about the final form of the bill, I will note one provision that will be included in both bills:

          The bills specify that the choice of electors must occur in accordance with the laws of the state enacted prior to election day.

          That provision is hugely important because all fifty states currently have laws that provide for the selection of presidential electors by popular vote. If those laws are in effect on Election Day 2024, under the proposed reforms, the state legislatures cannot change or override the popular vote by deciding on a new methodology for electing the president after Election Day.

          There is likely to be significant action on ECA reforms in the next few weeks, so stay tuned.

A conversation with Professor Laurence Tribe and Henry Weinstein.

          A reader placed a note in the Comments section to yesterday’s newsletter recommending a videotaped discussion between Laurence Tribe and Henry Weinstein (a celebrated journalist and (now) law school professor). The discussion focuses on the status of the Supreme Court and is fascinating and elevating (notwithstanding some grim assessments). The link is here: Laurence Tribe with Henry Weinstein | America at a Crossroads, Precarious Times- Our Constitution at Risk.

          I should note that the above session is part of the superb work of Jews United for Democracy and Justice, which produces weekly discussions between leading figures in American politics and journalism. Upcoming programs include Ruth Ben-Ghiat, Larry Diamond, Dahlia Lithwick, and Rick Hasen. The program schedule is here: Events JUDJ.

          At a time when we are bombarded by competing demands and sensationalized media, the programs produced by JUDJ are a haven of rationality, civility, and substance. Check out the programs!

Concluding Thoughts.

          As we move closer to the midterms, we should recognize that the media will participate as interested parties in the upcoming election. As a result, the already-biased media will become surrogate combatants in partisan battles. They are not trying to report the news; they are trying to manipulate you. I was struck by this fact as I read an article in Politico that attempted to explain why Trump’s legal woes were actually good for Trump because they “consolidate his base.” See Politico, Trump’s legal troubles are mounting. And his support is consolidating.

          I read the article with a sense of bemusement, waiting to see whether and how the article would explain Trump’s declining favorability ratings. The article consists largely of chest-thumping quotes from GOP strategists. A typical example is this:

“The more Trump is attacked, the higher he climbs among Republicans,” said Frank Luntz, the veteran Republican consultant and pollster. “He knows how to play the victim card perfectly.”

          About mid-way through the lengthy piece, Politico notes that “Trump’s approval rating is ticking down,” a contraindication that seems to refute the thesis of the article. As Politico gave a glancing reference to the only objective evidence regarding the possible effect of Trump’s legal troubles, Newsweek ran this headline earlier this week: Donald Trump’s Approval Rating Plunges to Lowest Point in Over a Year.

          My point is neither to criticize Politico nor praise Newsweek. It is this: Both parties are manipulating the press to manipulate you. Don’t take the bait. What you do is real; the spin placed on your actions by the media is removed from reality by several degrees of separation. So, don’t become a victim of manipulation. Continue doing what you are doing. There is only one poll that matters, and that poll is taken on Election Day.

          As this week has demonstrated (again), a lot can change in the blink of an eye. In order to exploit unforeseen events to our advantage, the best strategy is to stick to our plan, execute our ground game, and be prepared for anything. We can do that. We are doing that! So, keep up the good work!

          I will send a short note tomorrow to open the Comments section to all readers. It’s been quite a week and readers tell me that they take strength and hope from hearing from other readers. So, why not join the conversation as a positive contributor? The democracy you save may be your own!

          Talk to you tomorrow!