Trump’s lawyers talk of indictment.

September 20, 2022

          For those who hope that the DOJ will defend the rule of law by indicting Trump, Monday brought several developments that suggest an indictment is increasingly likely in the near term. First, Maggie Haberman of the NYTimes is reporting that a White House attorney, Eric Herschmann, warned Trump that he “could face legal liability if he did not return government materials he had taken with him when he left office.” See NYTimes, Trump Was Warned Late Last Year of Potential Legal Peril Over Documents - The New York Times.

          If true, Herschmann’s testimony will help establish that Trump willfully violated the law in retaining classified materials and defense secrets after he left the presidency. Willfulness is an element of at least one of the crimes that the DOJ is investigating—and intent is traditionally the most difficult element of espionage to prove. On the publicly known facts, the other elements will be easy to prove. Trump’s lawyers should be thinking about how to shape Trump’s defense to an impending indictment. As we learned on Monday, Trump’s lawyers are clearly worried that Trump will be indicted. Read on!

Judge Cannon’s fine mess—and Trump’s lawyers’ public reference to a possible indictment.

          In a bizarre series of events on Monday, the mess created by Judge Cannon’s appointment of a special master resulted in a public statement by Trump’s attorneys that they are “holding back” evidence to defend Trump in the event of a “subsequent indictment.” The fact that Trump’s lawyers raised the need to prepare for an indictment is a breathtaking statement by Trump’s lawyers. What do they know that we don’t know? Answer: Something that Trump has told them about the documents he stole.

          The remarkable statement by Trump’s lawyers emerged from the mess created by Judge Cannon’s nonsensical order. She appointed a special master (in part) to review seized documents to determine which are truly “classified.” In his court filings, Trump argued that he is entitled to return of the classified documents because he (theoretically) could have declassified them. Understandably, the special master’s first order of business was to ask Trump’s lawyers to specify which documents he declassified. Trump’s lawyers are now refusing to state whether (or which) documents he declassified. See CNN, Trump team says it doesn't want to immediately disclose certain 'declassification' information in special master review.

          In a letter to the special master, Trump’s lawyers complained that the request requires Trump to “disclose specific information regarding declassification to the Court and to the Government.” Uh, yes, that is what the special master that Trump requested needs to perform the review ordered by Judge Cannon! Trump argued that he should not be forced to identify which documents have been declassified unless and until he files a motion for their return (a so-called “Rule 41 motion”). Trump’s lawyers wrote:

We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. . . Otherwise, the Special Master process will have forced the [Trump]to fully and specifically disclose a defense to the merits of any subsequent indictment. . . .

          In other words, having successfully snookered Judge Cannon with the ridiculous argument that Trump “could have” declassified documents, Trump does not want to declare under penalty of perjury before the special master whether he actually did so. Instead, Trump wants to save that evidence for his defense to an indictment. Statements made by Trump to the special master could constitute admissions that can be used against Trump in a criminal trial. See Washington Post, Trump lawyers acknowledge Mar-a-Lago probe could lead to indictment.

          The audacious move by Trump’s lawyers indicates that any statement by Trump would be worse than the legal drubbing he is about to receive at the hands of the special master. In the absence of any evidence by Trump that he declassified the documents, the special master must conclude that the “classified” markings on the documents establishes their status as classified documents.

          Trump has clearly revealed something to his new lawyers that has them worried about an indictment. Chances are good that if Trump told his lawyers about a harmful fact, the FBI is already aware of that evidence.

Biden’s interview on CBS’s 60 Minutes.

          Biden taped an appearance on CBS’s 60 Minutes that aired Sunday evening. In the interview, Biden made three statements that are drawing scrutiny and raising eyebrows. But before addressing the statements, it is worth noting that the appearance disproved the right-wing talking point that Biden is suffering from cognitive decline. Faced with that obvious truth, right-wing media is claiming that 60 Minutes “went easy” on Biden. Ah, well! There is no satisfying some people!

          In the first surprising statement, Biden pledged that US “men and women” would defend Taiwan if it were invaded by China. That statement goes further than the “strategic ambiguity” that is official US policy towards an invasion of Taiwan. But Biden has made similar statements in the past that get ahead of US policy on Taiwan. Indeed, the fact that Biden is talking tougher than the official US policy may be part of the “ambiguity” that the US is attempting to create regarding Taiwan.

          Second, Biden said that the “pandemic is over.” Whether that statement is true from a epidemiological point of view, Biden is correct from a societal point of few. As Biden noted, “people have stopped wearing masks” because 220 million Americans have been vaccinated and 90 million Americans have contracted Covid. Biden is right that it “feels” as if the pandemic is over—but it is not. About 400 people die each day from Covid. My wife and I still wear masks when we go into public. I have had Covid and it was a rough experience. I don’t want to get it again.

          Finally, Biden made the following ambiguous statement regarding his plans for 2024:

My intention, as I said to begin with, is that I would run again. But it's just an intention. But is it a firm decision that I run again? That remains to be seen.

More on DeSantis’s virtual kidnapping of Venezuelan refugees.

          The story of Ron DeSantis’s human trafficking of Venezuelan refugees is getting worse. First, Trump is upset that DeSantis “stole another one of my ideas” in order to capture media headlines. See Rolling Stone, Trump Fumes: DeSantis Stole My Plan for Shipping Migrants. Only in today’s GOP would one politician be jealous that another politician is overtaking him in the cruelty department.

          Second, questions regarding the legality of DeSantis’s stunt are growing. Josh Marshall summarizes the facts known to date, but it appears that DeSantis hired contractors in Texas to profile refugees who planned to travel to Florida. As explained by Marshall, that scheme is inconsistent with the Florida legislation authorizing the transportation of immigrants and refugees out of Florida. A sheriff in Bexar County, Texas is looking into the legality of DeSantis’s operation. See CNN, Martha's Vineyard: Texas sheriff announces investigation into migrant flights.

          Hmm. . . it would certainly be interesting if both Trump and DeSantis were under indictment as they competed for the GOP nomination for 2024. Interesting, but sad.

Concluding Thoughts.

          First, my thoughts are with the people of Puerto Rico tonight. If any readers are involved in relief efforts, please post in the Comments section or send me an email by replying to this newsletter.

          The cable news shows devoted a fair bit of airtime to a Trump rally in Ohio over the weekend. Trump used QAnon slogans and music to signal his increasing embrace of the dangerous conspiracy. At one point, a hundred attendees at the rally raised their arms and pointed their index finger upward in a gesture that is reminiscent of salutes to Hitler.

          The image is disturbing and worrisome. But as always, let’s try to keep some perspective. Although Trump claimed the rally was “sold out,” video shows that the arena was half-empty. And the people giving the QAnon salute were packed together on the floor, making for an irresistible visual to be played on a loop on cable news. In other words, the media’s repetition and amplification of the tightly packed pod of QAnon followers gives a false impression of the size and scale of the gesture in the arena.

          We should not dismiss the growing attraction in the GOP to the QAnon cult. Nor should we exaggerate its influence. The demonstration at the Ohio rally was a small group in a lackluster turnout for a man who previously sold-out massive stadiums. That same night across Ohio, 11 million decent citizens of both parties went about their lives without engaging in inflammatory behavior designed to draw attention from the media. As compared to 11 million Ohio residents who did not give the QAnon salute, the 100 who did are equal to zero percent of the population.

          I am not saying we shouldn’t worry about the growth of extremist groups. I am saying we should not ignore that vastly larger percentage of the population who are law-abiding, hardworking Americans who want nothing more than to raise their families in peace, health, and prosperity. Don’t lose sight of that fact as you digest the disturbing images played on the nightly news.

          Talk to you tomorrow!