Selective Prosecution.

September 15, 2023

          Special prosecutor David Weiss indicted a private citizen for three felony counts relating to the purchase of a handgun while addicted to a controlled substance. Based on commentary provided by former Justice Department prosecutors, the DOJ rarely—if ever—charges stand-alone felonies for lying on a gun application. The indictment followed a failed plea deal that collapsed after congressional Republicans launched hearings into the handling of the case by the FBI and special prosecutor Weiss.

          In making the decision to seek an indictment, David Weiss engaged in selective prosecution motivated by Weiss’s fear of Republicans in Congress and the former president. The private citizen will demand discovery from the Department of Justice to prove that the DOJ does not prosecute defendants for the crime of lying on a gun application on a stand-alone basis.

          Weiss’s decision is all the more suspect because the statute creating one of the three felonies—possessing a gun while addicted to illegal drugs—has been declared unconstitutional by the 5th Circuit Court of Appeals in light of the Supreme Court’s decision in NY Pistol and Rifle Club v. Bruen. See CNN, Federal appeals court strikes down law prohibiting users of illegal drugs from possessing firearms.

          The three-page indictment overcharges the single transaction of purchasing a gun by checking a box on a form that declares that the purchaser is not addicted to a controlled substance. Based on that single transaction, the private citizen was charged with three felonies that cumulatively threaten a 25-year prison sentence. Those three crimes are:

• Making a false statement in the purchase of a firearm.

• Making a false statement related to information required to be kept by a Federal Firearms Licensed Dealer.

• Possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance.

          Federal law should prohibit gun ownership for persons addicted to illegal drugs. The DOJ should enforce those laws. But if the DOJ decides not to enforce those laws on a stand-alone basis, it cannot selectively enforce the law based on the defendant’s skin color, income level, or family relationships. Special counsel David Weiss’s decision to selectively apply the law to a private citizen because his father holds a federal office further erodes the legitimacy of the Department of Justice.

          This story is about the abuse of power by Congress and a US Attorney appointed by Donald Trump. It is not about the defendant’s father or the false equivalency between the criminal conduct of one presidential candidate and the love of the other candidate for a son struggling with drug addiction. Yet, sadly, most of the coverage today was about the impact of the selective prosecution on the 2024 presidential race.

          The media should focus on the abuse of power by a US attorney appointed by Donald Trump. Period. End of story.

Georgia’s criminal prosecution of Trump.

          Judge Scott McAfee is demonstrating a steady hand and solid judgment in managing Georgia’s criminal prosecution of Donald Trump. The competing demands for speedy trials by two defendants and motions to sever trials from the other 17 defendants were creating a logistical nightmare. Judge McAfee issued a sensible ruling on Thursday that ordered the following:

• Denied severance of the trials for Ken Chesebro and Sydney Powell.

• Severed from the Chesebro/Powell trial any defendant who has waived their right to a speedy trial.

• Ordered any defendant who does not waive their speedy trial right by October 23 to be joined “immediately” to the Chesebro/Powell trial.

• Set December 1, 2023, as the deadline for all motions from all defendants.

The original order is here: Order on Severance and Stay | US v. Trump.

          Judge McAfee also expressed his belief that further severance orders would be necessary to manage trials for the remaining 17 defendants (including Trump).

          As a result, the Chesebro/Powell trial will begin on October 23, 2023. Many commentators have suggested that jury selection could last months. But Judge McAfee precluded that possibility in his order, stating:

Second, to eliminate any doubts that the statutory speedy trial deadline has been met, the Court will endeavor to have a jury selected and sworn by November 3, 2023.

          The above ruling means that opening statements in the trial will commence on Friday, November 3, or Monday, November 6. Even if the trial lasts four months, it is possible that the jury in the Chesebro/Powell trial will return a verdict before Super Tuesday (March 4, 2024). Although Trump is not a defendant in that trial, the conspiracy with which he is charged lies at the heart of the Chesebro/Powell trial.

          The net effect of the order is that the pace of proceedings in Georgia will be brisk. Judge McAfee is clearing the underbrush to prepare for a trial in 2024—as soon as the 11th Circuit rules on Meadows’ appeal from the denial of his removal petition.

          McAfee will finish jury selection by November 3, 2023, to ensure that the state complies with the Speedy Trial Act. As McAfee noted, the Act requires that “trial” commence within the 70-day period. For technical reasons (having to do with double jeopardy), the trial “begins” when jury selection is complete and the jury is sworn. (“Without the [jury’s] oath, there is no jury; and without the jury, there is no trial.”)

          Although the Georgia case will be complicated and contentious, Judge McAfee appears to be up to the task of managing the case to a relatively prompt conclusion. Depending on how quickly the 11th Circuit and Supreme Court dispose of Meadows’ appeal, the Georgia trial against Trump could be completed before November 2024. That would be a good result for American democracy.

McCarthy loses control of the Republican caucus in the House.

           Ugh. This is not good. The House must pass twelve bills to get a budget to the Senate before the October 1 shutdown date. The House has passed only one bill (relating to the Veterans Administration). The second bill to be considered was the defense spending bill—typically a bi-partisan, “easy pass” bill.

          Indeed, the defense bill looked ready to proceed to a vote on Thursday—until extremist members of the Freedom Caucus balked. McCarthy didn’t have the votes to get the bill to the House floor, so he pulled the bill from consideration (for now). See NYTimes, McCarthy Pulls Back Pentagon Spending Bill, Inching Closer to a Shutdown. (This article is accessible to all.)

          As explained by the Times,

The surrender to the far right underscored the difficulties facing Mr. McCarthy as he tries to find a way to advance a series of spending bills and avoid a shutdown in two weeks, all while grasping to hold onto his post amid right-wing threats to oust him.

It also illustrated his lack of influence over the far right as the opposition persisted despite his repeated urgings for lawmakers to speed approval of the funding measures to put the Republican-led House in a better bargaining position with the Democrat-controlled Senate, which on Thursday hit its first roadblock in advancing bipartisan spending legislation.

          To repeat, the defense bill is the easiest, most bipartisan bill on McCarthy’s plate. The usual way out of such difficulties is to pass a “continuing resolution” that maintains current fiscal year spending levels until a budget is passed. But extremist members of the GOP caucus have vowed to make a “motion to vacate the chair” if McCarthy seeks a continuing resolution. In a sign that McCarthy has run out of options, McCarthy told his assembled caucus on Thursday,

          If you want to file a motion to vacate, then file the f‑‑‑ing motion.

          This is no way to run a legislature—which is why Democrats need to retake control in 2024.

A funny thing happened on my way to publishing the newsletter last night.

          As many of you noticed, I failed to publish the newsletter on time last evening. I learned of my mistake when I awoke to hundreds of emails and texts asking if I was okay. Thanks to everyone who expressed concern. When I learned of the failure to launch, I immediately published the newsletter with this hurried explanation:

Sorry for the delay in sending today’s newsletter. It has been sitting in the draft folder since last evening—for no good reason!

          While I thought the explanation was innocuous, I promptly received the following response from a reader:

Robert, you seem to be publicly chastising some minion for leaving YOUR newsletter in some “in process” stage.  Don’t paint yourself to be an ass**** in public.  It’s yours, so accept ownership.  Apologize and get on with it.  If you have a gripe about something or someone your own shop, take it up there.

            Ouch! I received the above email while I was on a videoconference planning an event next week, so I quickly typed this reply on my phone, out of sight of my Zoom-mates:

Yes! I am p***** with the employee who left the newsletter in a draft folder—me.

The newsletter has one employee—me. I wish I had minions.

          Apart from the embarrassment of failing to send the newsletter on time, I found the exchange amusing (although I regret referring to “minions.”) Many readers assume that I have a large staff helping me to publish the newsletter. I do not. (I take that mistaken belief as a compliment!)

          To clear up any confusion, I research, write, edit, proofread, record, and publish the newsletter by myself.

          Before COVID, my wife (aka Managing Editor) proofread each edition. But as the publication time moved later and later each evening, it became impractical for a second person to review the newsletter near midnight. I now discuss the newsletter with my Managing Editor before I begin writing to help me focus on the important stories of the day. Her judgment is unerring and invaluable.

          What happened last night? After I finish writing each newsletter, I record an audio version. When I have completed the recording, the audio file has to “compile” and convert to the WAV format and then download from my cloud-based audio program (5 to 10 minutes). Then I insert the audio file into the newsletter on the Substack platform and it has to upload back to the internet—another 5 to 10 minutes. So, when everything is done for the evening—usually around 11:30 PM—I sit and wait for about 10 to 15 minutes for the WAV file to be converted and uploaded for publication.

          Last night, I decided to book travel arrangements while the WAV file was compiling in the background. I successfully booked a hotel room in San Francisco for upcoming travel and went to bed after midnight feeling a sense of accomplishment. But I forgot to go back to Substack to press “send” after the audio file had finished uploading.

          That’s the ugly truth. All errors and mistakes in the newsletter belong to me.

          But I need to correct one aspect of my reply to the reader who believed I was throwing a “minion” under the bus. I recently hired a part-time staff person to help with subscription-related inquiries. I had been spending an hour or two a day responding to readers' questions related to their subscriptions: “Where’s my newsletter today? (In your junk folder.) “I disabled delivery of emails. How do I turn it back on?” “My credit card expired. How do I update payment information?”

          So, three weeks ago, I hired a bright young person looking for a job to respond to subscription-related inquiries. Some of you have dealt with her and know she is friendly, competent, and diligent. She has allowed me to focus on writing and publishing the newsletter—which I firmly resolve to do “on time” from this point forward.

          Finally, as a reminder, if you don’t receive a newsletter and it isn’t in your junk/spam folder, you can always read the newsletter online.

          Apologies for the misstep last evening, and thanks to all of you who reached out to express concern. I am deeply touched.

Concluding Thoughts.

          I spoke at a Potlucks and Politics Giving Circle meeting this evening via Zoom (about 100 people logged on). I noted many readers of the newsletter on the call. I appreciate your support for the Giving Circle and for the upcoming elections in Virginia.

          After my remarks, one of the questions was whether I believe Virginia Democrats can prevent Republicans from obtaining a “trifecta.” I do.

          But my point is not to predict results in Virginia. It is to pause to reflect on how remarkable it is that on a Thursday night in September 100 people from across the nation would come together to support legislative elections in a state where they do not live. Would that have happened in 2016, before Trump was elected? And would a voter in California be worried about whether Virginia Republicans could gain a “trifecta”? Or even know what a “trifecta” is? I doubt it.

          But today, there are thousands of groups like the Potlucks and Politics Giving Circle that are worrying about those questions and pooling small donations to make significant donations for Virginia Democrats. Even better, those groups are battle-tested and savvy, having helped Democrats win in 2018, 2020, and 2022. They are our secret weapon for 2024 and beyond.

In contrast to the broad and deep grassroots support in the Democratic Party, Republicans are counting on donations from a handful of megadonors and revenue from merchandise emblazoned with Trump's mugshot. As between those two models of civic engagement, which seems destined to win and endure over the long run? The question answers itself.

        We have every reason to be hopeful, but no reason to be complacent.

        Talk to you tomorrow!