“So foul a sky . . .”

August 28, 2022

          On Sunday, the New York Times Editorial Board called for the Department of Justice to indict Trump if it “concludes that there is sufficient evidence to establish Mr. Trump’s guilt on a serious charge in a court of law.” That is the same standard that any prosecutor would apply in deciding whether to prosecute any defendant. The Times’ editorial board recognizes that a former president is not just “any defendant,” but concludes that prosecution is nonetheless warranted if the DOJ determines that there is sufficient evidence to establish Trump’s guilt. The Times’ board writes:

This board is aware that in deciding how Mr. Trump should be held accountable under the law it is necessary to consider not just whether criminal prosecution would be warranted but whether it would be wise. [¶]

No matter how careful Mr. Garland is or how measured the prosecution might be, there is a real and significant risk from those who believe that any criticism of Mr. Trump justifies an extreme response. [¶]

Yet it is a far greater risk to do nothing when action is called for. Aside from letting Mr. Trump escape punishment, doing nothing to hold him accountable for his actions in the months leading up to Jan. 6 could set an irresistible precedent for future presidents. [¶]

          As I have written before, the only thing worse for the nation than prosecuting Trump is not prosecuting Trump. That is particularly true given that Trump is inciting passions ahead of a DOJ decision on indictment. Trump released a letter from his lawyers that relayed an offer to help Merrick Garland—an offer that was the equivalent of a mobster’s statement, “Nice shop you have here; it would be a shame if it burned down.” See Huffington Post, Trump Tries Mobster-In-Chief Role With Attacks On Law Enforcement. Trump’s lawyers sent the following statement to Garland three days after the Mar-a-Lago search:

The heat is building up. The pressure is building up. Whatever I can do to take the heat down, to bring the pressure down, just let us know.

          The details in the FBI affidavit that survived redaction raise grave and alarming potential breaches of national security by Trump. See Vox, Why the redacted affidavit for the search of Trump’s home is so concerning.

          To date, Trump’s rambling and inconsistent defenses have failed to address the fundamental question of why Trump removed some of the nation’s most sensitive defense secrets from the White House. Issues of executive privilege and declassification of documents are entirely irrelevant to theft and illegal retention of national defense secrets.

          Instead of offering a justification for his actions, Trump is attempting to conjure storm clouds of threatened violence to dissuade the DOJ from indicting the former president. The DOJ must stand firm. As Shakespeare wrote in King John (Act 4, Sc. 2):

          So foul a sky clears not without a storm.

          A consensus is emerging that the DOJ must indict Trump if the evidence warrants prosecution. The redacted FBI affidavit strongly suggests that such evidence exists. We may experience turbulent times if Trump is indicted, but prosecution of Trump may be necessary to clear the “foul sky” that will shroud America as long as a lawless president threatens our democracy.

Reader comments.

          I sent a very short newsletter on Friday as a means of opening the Comments section to readers over the weekend. Collectively, the reader comments were the most insightful and informative observations I have read on the Mar-a-Lago search and its ramifications. If you don’t normally peruse the comments section, I recommend the weekend comments for a keen insight into what concerned Americans are thinking about the search (and other pressing topics). The link to the comments is here: Comments - The new Joe Biden.

          I hesitate to single out comments given the many worthy entries, but I feel compelled to share two. (I have lightly edited both for context and brevity.)

          Reader Nathan K. observed that the Mar-a-Lago search has now put the American justice system to the test:

[Trump] may yet be indicted in one court or another, for one or another of a myriad of crimes. What is on trial now is the American justice system. Given the overwhelming amount of evidence publicly available and who knows how much more as yet unrevealed, if we don't see a resolute march to justice, the public will abandon any trust it has left in our system's will and capacity to prosecute the rich and powerful. How ironic, that a criminal destined for a special place in the annals of crime in this nation is actually putting the justice system on trial. So be it; it’s been a long time coming.

          Reader ChipsPOV responded to the above comment, noting that the search of Mar-a-Lago is putting all Americans to the test:

Nathan, you are right that the core of government, the Department of Justice is on trial. It is because of situations like this that the DOJ was created.

But I think what is on trial is our form of government. Are we or are we not a democratically formed Republic? Do the majority of Americans support and defend the Constitution or not? Do we choose to be united, or do we seek division?

Ultimately for a democratic form of government to succeed, the majority must first care and then coalesce around what is best for the common good.

          If an indictment is warranted, it will serve as a stress test for the DOJ and for us. It is better that we rise to this challenge and prevail than temporize while greater crises brew.  

The “new” Joe Biden.

          As usual, Jennifer Rubin hit the nail on the head when she described Biden’s more aggressive tone at last week’s DNC rally. See Jennifer Rubin, WaPo, Biden channels Harry Truman—to his party’s delight. Rubin writes:

Biden seemed to channel Harry S. Truman, who, to a voter shouting “Give ’em hell, Harry!” declared, “I don’t give them hell. I just tell the truth about them, and they think it’s hell.” And did Biden ever give it to the MAGA radicals.

          Rubin is right. What seemed so shocking about Biden’s statements is that he was willing to say in words of one syllable what everyone is thinking about the “MAGA Republicans” who are threatening our democracy. Per Rubin,

No one should be shocked by the president calling the movement — one that tried to overthrow a democratic election, continues to threaten violence, spews the racist Great Replacement theory, operates in a universe of delusion and disinformation and seeks to redefine America as a White Christian nation — semi-fascist.

In praise of teachers.

          If you are a teacher, know a teacher, or were ever taught by a teacher, you should read the essay by Dan Rather and Elliot Kirschner, Dear Teachers. They write of the current challenges faced by teachers under the scourge of an “anti-education, anti-teacher” Republican Party:

We see intolerance worn as a badge of toughness, while inclusion, the great promise of what public education can be, is treated as weakness.

          They conclude:

Teachers, you are our inspiration and our hope. You nurture the flames of our democracy. You literally save lives. You work miracles every day. Your resourcefulness, resilience, and creativity are boundless. We saw it during the heart of the pandemic. And we see it now. It is all the more reason you should not be taken for granted.

          Exactly!

Judge indicates intention to appoint special master to review documents seized by FBI pursuant to search warrant.

          The federal district judge to whom Trump directed a motion to appoint a special master indicated a tentative inclination to appoint a special master. But before making a final decision, she will allow further briefing and argument. See Reuters, U.S. judge indicates intent to name special master in Trump FBI search.

          Nothing has been decided, so there is little basis for commenting on the judge’s preliminary indication of her intention. But Trump’s motion for appointment of special master provided no evidentiary basis whatsoever to support the appointment. The so-called “motion” was devoid of evidentiary basis justifying a special master. In the “real-world” of evidence and facts, the moving party provides a declaration that establishes the evidentiary basis for the relief sought. Trump’s motion is here: Movant’s Supplemental Filing In Support of Appointment of a Special Master.

          The “motion” consists only of argument of counsel. No one has provided a “declaration under penalty of perjury” stating that the seized materials included privileged documents or documents that are not protected by the Presidential Records Act. In the absence of such a declaration providing an evidentiary foundation, there is no basis for appointing a special master. And yet, here we are. Stay tuned.

Concluding Thoughts.

          Thanks to reader Kurt S. for suggesting the quote from King John. After he suggested the quote, I read the scene in King John in which the statement is made. In the scene, King John receives news from a messenger that an army from France is already advancing on England. King John is surprised that he was not forewarned, and—in words reminiscent of Trump’s theft of defense secrets stashed at Mar-a-Lago—says:

O, where hath our intelligence been drunk? Where hath it slept?

          Indeed! With whom did Trump share “our intelligence” as it was stored unprotected at Mar-a-Lago?

          As the scene continues, King John learns that his subjects have been roiled by agitators spreading lies. He is told (by Philip):

But as I travell'd hither through the land,

I find the people strangely fantasied;

Possess'd with rumours, full of idle dreams,

Not knowing what they fear, but full of fear.

          On reading Shakespeare’s description of the King John’s restive subjects, the similarity to Trump’s base was manifest: a fearful populace motivated by disinformation and “strange fantasies.”

          Here’s the point to my digression: Shakespeare’s audiences would have instantly recognized and understood a reference to a population under the sway of disinformation and conspiracy theories. Little has changed in the four centuries since Shakespeare wrote King John except that social media is more efficient at spreading disinformation. It is a scourge not unique to modern democracies. Every generation struggles with the burden of disinformation and somehow manages to prevail. Our generation can do so, as well.

          Talk to you tomorrow!