I usually do not weigh in directly in the Comments, but my inbox is filled this morning with worried emails about Judge Cannon delaying the trial until after the election. That is very likely to happen. Any defense team worth its salt can file enough pretrial motions and interlocutory appeals to delay a criminal trial for sixteen months (the two-month minimum required, plus sixteen months to get to November), so Cannon need not give Trump an unfair assist to delay the trial beyond November 2024.
I don't think we should stress over that fact. Convicting Trump is not a substitute for beating him at the ballot box. Indeed, if we don't beat him at the ballot box, a conviction will be irrelevant, regardless of whether it occurs before or after the election in November.
Also, many have mentioned the absence of cameras in the courtroom to curtail Cannon's impulse to unfairness. That is true, but in the prior proceeding, Cannon issued all of her orders from in chambers. She was on the bench for a few minutes. Not so in the trial. She will be under the constant scrutiny of the press--and subject to criticism for her obvious inexperience, ignorance of the law, and bias. I don't think we should underestimate the pressure of intense scrutiny from the press or the capabilities of Jack Smith's team.
Finally, many people have expressed concern over the Miami jury pool. The DOJ has obtained multiple convictions with Trump supporters on the jury--Paul Manafort, the Proud Boys, the Oath Keepers. And Durham suffered two acquittals of defendants he charged even with the presence of Trump supporters on the jury.
And let's clear one thing up: Trump WILL NOT be acquitted. He may achieve a hung jury, but no jury will find him innocent of the charges. The DOJ can try him a second time if there is a hung jury.
In the end, we are not entitled to a conviction of Trump. The public is entitled to a fair trial of Trump on the charges in the indictment, nothing more. A fair trial should result in a conviction, but there is no guarantee of that outcome, so let's stop stressing over every bump in the road that might decrease the likelihood of a conviction. We have a long way to go and this process will be challenging for us all. For now, Smith has filed a stronger than expected indictment that shows Trump lied to his own attorneys and the FBI to conceal the documents and suggested that his lawyer destroy documents after receiving a subpoena from a grand jury. It doesn't get much worse than that!
I look forward to reading about (no cameras in the courtroom) Judge Cannon WITHERING before Prosecutor Smith's preparation and steely resolve. Even after his very brief remarks today, I could not hope for anyone better qualified to be representing We the People in this matter. And Trump is already telegraphing his abject terror. Good.
I am not an expert in military tactics or legal appeals. Before reading Today's Edition's brief commentary about the indictment and the judge before whom Trump will be tried, I had read a Daily Kos piece about Ukraine's attack on Russian defenses. The Ukrainian generals and the American special counsel are both attacking in areas of the defense's greatest strength because a victory in each case will be absolute. They are demonstrating confidence and courage ias they approach challenges that are critical for their world and ours. Len Lubinsky -- Len's Political Notes.
Jun 10, 2023·edited Jun 10, 2023Liked by Robert B. Hubbell
I'm a veteran of the Watergate Hearings led by Sam Ervin when I was a college student and watched lies and perfidy being exposed. My recollections do not include members of Nixon's party raising money off the crisis before reading or hearing the evidence. Just think about how far the GOP has fallen. Gym Jordan? Elise Stefanik? Chip Roy? Matt Gaetz?
The big problem with "Lucy" Cannon is that she can delay the trial, despite the "rocket docket" they have there, sufficient to put it in the middle of the campaign. Another judge could have had it underway in January, and since Smith said it would take 21 days, it could have been done in time for his conviction to knock him out of the race.
Actually, if Trump had not filed his foolish action over those documents and Cannon not been involved before, she might have been much more dangerous because she wouldn't have been rebuked. I agree with Robert's excellent analysis. And I add the observation that Trump has shown himself to make stupid decisions when it comes to directing the worst lawyers for hire.
What's really shocking isn't Trump's weird handling of highly classified security docs. What's shocking is the degree to which, in the face of it, Republicans are standing up for their "man".
It's time for the Republican party to stand for America and dump the guy..
I trust Jack Smith. I trust Robert Hubbell's assessment.
Judge Cannon is now under a microscope and as such may be the perfect judge for this case. A case with overwhelming evidence and NO DEFENSE. A case defense lawyers are fleeing from.
If the Conservative Supreme Court can find it’s way to allow for a new Alabama congressional map, then in Florida , a judge appointed by Trump might also surprise us. Hopefully this case won’t fill every page and screen for the next year. Seriously talented and lawful people need our attention!
I have read the indictment and you should also and the detailed documentation and supporting evidence is overwhelming and frightening. The fact that Trump had these documents in the first place and was able to leave the White House with them highlights a whole new set of security issues and concerns. Those Republicans like McCarthy and Cruz and a small group group of House Republicans who are attacking the indictments as being political should be asked if they read the indictment and asked specific questions we know they cannot answer. The media needs to have a hard court press on these individuals because the evidence is overwhelming and fact based. The media’s handling of these individuals will go a long way to quelling crazy behaviors.
What I find most disturbing and disgusting is the blatant call for violence from some of the congressmen (eg. Andy Biggs and others) threatening retribution in war like phrases and the threatening of the justice department’s children. This is beyond despicable. It is dangerous. And also, while I’m on my soapbox, Republican Senator Rick Scott who committed the largest Medicare fraud in history (at the time) railing against Biden and his supposed “ crimes” makes me want to throw up .🤮
Disclaimer: I am not a constitutional scholar, just a concerned citizen... my views are my own but would very much like to know whether you think I have it wrong.
I have read parts of the Allen v Milligan Opinion…. It’s quite fascinating. The argument details the subtleties of whether under Section 2 (§2) of the Voting Rights Act of 1965 as amended, to constitute unconstitutional behavior the discrimination has to be purposeful or are voting practices that are discriminatory in effect.
Alabama’s maps didn’t meet the constitutional test says the Roberts majority.
Kavanaugh concurred in everything except Part III, B-1.
What did he object to in the majority opinion? Kavanaugh was not convinced that considering race as a factor should continue into the future….(a Thomas argument and one Roberts used in Shelby)...
Kavanaugh’s dissent: he concurs with one argument by Thomas that “even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44-45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time. For those reasons, I vote to affirm and I concur in all but Part III-B-1."
What is the importance of this? Unclear… but it could be that when the District Court in Alabama next hears this case and allows the map which takes racial factors as anything more than “being aware”, and Alabama appeals again (I assume that they can and they will) Kavanaugh might join the 4 dissenting justices… I will try to find out from practicing Constitutional scholars.
What was in Part III-B-1?
Part III B-1: In Roberts’ opinion, Roberts is unclear whether Alabama has argued that they “should not take race into account at all or whether they must just not “prioritize” race, ….we see no reason to impose such a new rule…..being aware of racial consideration and being motivated by them……The former is permissible; the latter is usually not”…”
The significance of the Majority Opinion as reasoned by Kavanaugh:
The 5 majority Justices agrees that Alabama’s premise to overrule Gingles is wrong: “Gingles does not mandate a proportional number of majority-minority districts. Gingles requires the creation of a majority-minority district only when, among other things, (i) a State's redistricting map cracks or packs a large and "geographically compact" minority population and (ii) a plaintiff's proposed alternative map and proposed majority-minority district are "reasonably configured" --- namely, by respecting compactness principles and other traditional districting criteria such as county, city, and town lines".....While the line between racial predominance and racial consciousness can be difficult to discern, …it was not breached here. ..And when asked squarely whether race predominated in his development of the illustrative plans, [the expert, Cooper]…testified that he gave all the factors “equal weighting”………”’ the use of an express racial target’ was just one factor among others that the Court would have to consider as part of (a) holistic analysis…..... ..’
...And as all members of this Court agree....§2 establishes an effects test, not an intent test. ..And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing –whether intentional or not – of large and geographically compact minority populations..
…… The contention [Thomas, Alito…] that mapmakers must be entirely “blind” to race has no footing in our §2 case law. The line that we have long drawn is between consciousness and predominance. Plaintiffs adduced at least one illustrative map that comports with our precedents . They were required to do no more to satisfy the first step of Gingles.
So Kavanaugh seems to still support Gingles but he isn’t sure for how long.
Minority Opinions:
I could not finish reading Thomas' minority opinion but Justice Thomas wants to overturn the Gingles’ opinion which sets criteria for racial determination under §2 of the VRA. Thomas quotes Plessy v Ferguson “our color-blind” Constitution, and Shelby County (stopped preclearance of changes in policies and procedures in the previously segregated south and counties which met pre-clearance requirements), and Brnovich (a vote dilution case which repudiates parts of the intent of §2 of the VRA).
Thomas’ opinion is joined by Gorsuch in its entirety, by Barrett (Part II and III), Alito (Part IIA and B).... So only Gorsuch shares his intro which cites Plessy.... Only Gorsuch joins Thomas in his total opinion.
Alito wrote a dissent with which Gorsuch joined in its entirety. He challenges the concept that a jurisdiction needs to be compact... says that isn’t a redistricting legal requirement, and if race is predominant as a criterion, then that is unconstitutional. ... He points out that “no group has a right to representation “in numbers equal to their proportion in the population”... part of the compromise to get the 1982 amendment to the VRA passed.
He would apply Gingles but his interpretation of Gingles would have resulted in a decision in favor of Alabama.... He would direct the District Court to examine Plaintiff’s maps as being race predominant which is unconstitutional.
I spent 38 years as a public school educator, including my final 11 years as the President of our local teachers union in the 33rd largest school district in the country. I detested "what if" scenarios. I far preferred dealing with the reality of what we were dealing with, rather than possible outcomes.
So, that said, I am going to dive into my speculation about what I believe history will uncover regarding Donald J. Trump, particularly in regards to the Mar-a-Lago documents case. As everyone knows by now, Trump does nothing - NOTHING - that will not benefit him. I am convinced that his obsession with the classified documents he took went far beyond his "pack-rat" obsessions. I believe (and again, I clarify that these are MY speculations) that when all the dust settles on the Trump years it will be revealed that the documents (or at least some of them) are connected to the Saudis and MBS, the $2 BILLION given by MBS to Jared Kushner, and LIV golf.
I know there is no real value to such speculation, but if I live long enough to see history put a bow on the legal debacle that is the post-Trump legacy all of the dots will be connected and they will all lead to Trump having cut deals (or at least attempting to do so) with the Saudis.
Oh well, history and great reporters and prosecutors like Jack Smith will either prove me right or leave my speculations on the trash heap of "what if" ramblings. There are likely dots that cover deals with China (think Ivanka's patents) and Putin (think "Trump Tower Moscow").
So, my speculations and $5 will get you a cup of coffee at Starbucks (I don't drink coffee, so I have no idea what Starbucks coffee costs). We'll see.
I usually do not weigh in directly in the Comments, but my inbox is filled this morning with worried emails about Judge Cannon delaying the trial until after the election. That is very likely to happen. Any defense team worth its salt can file enough pretrial motions and interlocutory appeals to delay a criminal trial for sixteen months (the two-month minimum required, plus sixteen months to get to November), so Cannon need not give Trump an unfair assist to delay the trial beyond November 2024.
I don't think we should stress over that fact. Convicting Trump is not a substitute for beating him at the ballot box. Indeed, if we don't beat him at the ballot box, a conviction will be irrelevant, regardless of whether it occurs before or after the election in November.
Also, many have mentioned the absence of cameras in the courtroom to curtail Cannon's impulse to unfairness. That is true, but in the prior proceeding, Cannon issued all of her orders from in chambers. She was on the bench for a few minutes. Not so in the trial. She will be under the constant scrutiny of the press--and subject to criticism for her obvious inexperience, ignorance of the law, and bias. I don't think we should underestimate the pressure of intense scrutiny from the press or the capabilities of Jack Smith's team.
Finally, many people have expressed concern over the Miami jury pool. The DOJ has obtained multiple convictions with Trump supporters on the jury--Paul Manafort, the Proud Boys, the Oath Keepers. And Durham suffered two acquittals of defendants he charged even with the presence of Trump supporters on the jury.
And let's clear one thing up: Trump WILL NOT be acquitted. He may achieve a hung jury, but no jury will find him innocent of the charges. The DOJ can try him a second time if there is a hung jury.
In the end, we are not entitled to a conviction of Trump. The public is entitled to a fair trial of Trump on the charges in the indictment, nothing more. A fair trial should result in a conviction, but there is no guarantee of that outcome, so let's stop stressing over every bump in the road that might decrease the likelihood of a conviction. We have a long way to go and this process will be challenging for us all. For now, Smith has filed a stronger than expected indictment that shows Trump lied to his own attorneys and the FBI to conceal the documents and suggested that his lawyer destroy documents after receiving a subpoena from a grand jury. It doesn't get much worse than that!
"a jury of Trump's peers..." ... don't the jurors have to be old enough to vote to be on the jury?
I do think that if Cannon tries her old tricks, particularly the stalls, the 11th Circuit will be on her like a ton of ......document boxes.
I look forward to reading about (no cameras in the courtroom) Judge Cannon WITHERING before Prosecutor Smith's preparation and steely resolve. Even after his very brief remarks today, I could not hope for anyone better qualified to be representing We the People in this matter. And Trump is already telegraphing his abject terror. Good.
I am not an expert in military tactics or legal appeals. Before reading Today's Edition's brief commentary about the indictment and the judge before whom Trump will be tried, I had read a Daily Kos piece about Ukraine's attack on Russian defenses. The Ukrainian generals and the American special counsel are both attacking in areas of the defense's greatest strength because a victory in each case will be absolute. They are demonstrating confidence and courage ias they approach challenges that are critical for their world and ours. Len Lubinsky -- Len's Political Notes.
I'm a veteran of the Watergate Hearings led by Sam Ervin when I was a college student and watched lies and perfidy being exposed. My recollections do not include members of Nixon's party raising money off the crisis before reading or hearing the evidence. Just think about how far the GOP has fallen. Gym Jordan? Elise Stefanik? Chip Roy? Matt Gaetz?
The big problem with "Lucy" Cannon is that she can delay the trial, despite the "rocket docket" they have there, sufficient to put it in the middle of the campaign. Another judge could have had it underway in January, and since Smith said it would take 21 days, it could have been done in time for his conviction to knock him out of the race.
Actually, if Trump had not filed his foolish action over those documents and Cannon not been involved before, she might have been much more dangerous because she wouldn't have been rebuked. I agree with Robert's excellent analysis. And I add the observation that Trump has shown himself to make stupid decisions when it comes to directing the worst lawyers for hire.
What's really shocking isn't Trump's weird handling of highly classified security docs. What's shocking is the degree to which, in the face of it, Republicans are standing up for their "man".
It's time for the Republican party to stand for America and dump the guy..
I trust Jack Smith. I trust Robert Hubbell's assessment.
Judge Cannon is now under a microscope and as such may be the perfect judge for this case. A case with overwhelming evidence and NO DEFENSE. A case defense lawyers are fleeing from.
I am encouraged and hopeful.
If the Conservative Supreme Court can find it’s way to allow for a new Alabama congressional map, then in Florida , a judge appointed by Trump might also surprise us. Hopefully this case won’t fill every page and screen for the next year. Seriously talented and lawful people need our attention!
I have read the indictment and you should also and the detailed documentation and supporting evidence is overwhelming and frightening. The fact that Trump had these documents in the first place and was able to leave the White House with them highlights a whole new set of security issues and concerns. Those Republicans like McCarthy and Cruz and a small group group of House Republicans who are attacking the indictments as being political should be asked if they read the indictment and asked specific questions we know they cannot answer. The media needs to have a hard court press on these individuals because the evidence is overwhelming and fact based. The media’s handling of these individuals will go a long way to quelling crazy behaviors.
What I find most disturbing and disgusting is the blatant call for violence from some of the congressmen (eg. Andy Biggs and others) threatening retribution in war like phrases and the threatening of the justice department’s children. This is beyond despicable. It is dangerous. And also, while I’m on my soapbox, Republican Senator Rick Scott who committed the largest Medicare fraud in history (at the time) railing against Biden and his supposed “ crimes” makes me want to throw up .🤮
Disclaimer: I am not a constitutional scholar, just a concerned citizen... my views are my own but would very much like to know whether you think I have it wrong.
I have read parts of the Allen v Milligan Opinion…. It’s quite fascinating. The argument details the subtleties of whether under Section 2 (§2) of the Voting Rights Act of 1965 as amended, to constitute unconstitutional behavior the discrimination has to be purposeful or are voting practices that are discriminatory in effect.
Alabama’s maps didn’t meet the constitutional test says the Roberts majority.
Kavanaugh concurred in everything except Part III, B-1.
What did he object to in the majority opinion? Kavanaugh was not convinced that considering race as a factor should continue into the future….(a Thomas argument and one Roberts used in Shelby)...
Kavanaugh’s dissent: he concurs with one argument by Thomas that “even if Congress in 1982 could constitutionally authorize race-based redistricting under §2 for some period of time, the authority to conduct race-based redistricting cannot extend indefinitely into the future. See post, at 44-45 (dissenting opinion). But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time. For those reasons, I vote to affirm and I concur in all but Part III-B-1."
What is the importance of this? Unclear… but it could be that when the District Court in Alabama next hears this case and allows the map which takes racial factors as anything more than “being aware”, and Alabama appeals again (I assume that they can and they will) Kavanaugh might join the 4 dissenting justices… I will try to find out from practicing Constitutional scholars.
What was in Part III-B-1?
Part III B-1: In Roberts’ opinion, Roberts is unclear whether Alabama has argued that they “should not take race into account at all or whether they must just not “prioritize” race, ….we see no reason to impose such a new rule…..being aware of racial consideration and being motivated by them……The former is permissible; the latter is usually not”…”
The significance of the Majority Opinion as reasoned by Kavanaugh:
The 5 majority Justices agrees that Alabama’s premise to overrule Gingles is wrong: “Gingles does not mandate a proportional number of majority-minority districts. Gingles requires the creation of a majority-minority district only when, among other things, (i) a State's redistricting map cracks or packs a large and "geographically compact" minority population and (ii) a plaintiff's proposed alternative map and proposed majority-minority district are "reasonably configured" --- namely, by respecting compactness principles and other traditional districting criteria such as county, city, and town lines".....While the line between racial predominance and racial consciousness can be difficult to discern, …it was not breached here. ..And when asked squarely whether race predominated in his development of the illustrative plans, [the expert, Cooper]…testified that he gave all the factors “equal weighting”………”’ the use of an express racial target’ was just one factor among others that the Court would have to consider as part of (a) holistic analysis…..... ..’
...And as all members of this Court agree....§2 establishes an effects test, not an intent test. ..And the effects test, as applied by Gingles to redistricting, requires in certain circumstances that courts account for the race of voters so as to prevent the cracking or packing –whether intentional or not – of large and geographically compact minority populations..
…… The contention [Thomas, Alito…] that mapmakers must be entirely “blind” to race has no footing in our §2 case law. The line that we have long drawn is between consciousness and predominance. Plaintiffs adduced at least one illustrative map that comports with our precedents . They were required to do no more to satisfy the first step of Gingles.
So Kavanaugh seems to still support Gingles but he isn’t sure for how long.
Minority Opinions:
I could not finish reading Thomas' minority opinion but Justice Thomas wants to overturn the Gingles’ opinion which sets criteria for racial determination under §2 of the VRA. Thomas quotes Plessy v Ferguson “our color-blind” Constitution, and Shelby County (stopped preclearance of changes in policies and procedures in the previously segregated south and counties which met pre-clearance requirements), and Brnovich (a vote dilution case which repudiates parts of the intent of §2 of the VRA).
Thomas’ opinion is 51 pages, Roberts’ 32, Kavanaugh’s 6....Alito’s 16 pages.
Thomas’ opinion is joined by Gorsuch in its entirety, by Barrett (Part II and III), Alito (Part IIA and B).... So only Gorsuch shares his intro which cites Plessy.... Only Gorsuch joins Thomas in his total opinion.
Alito wrote a dissent with which Gorsuch joined in its entirety. He challenges the concept that a jurisdiction needs to be compact... says that isn’t a redistricting legal requirement, and if race is predominant as a criterion, then that is unconstitutional. ... He points out that “no group has a right to representation “in numbers equal to their proportion in the population”... part of the compromise to get the 1982 amendment to the VRA passed.
He would apply Gingles but his interpretation of Gingles would have resulted in a decision in favor of Alabama.... He would direct the District Court to examine Plaintiff’s maps as being race predominant which is unconstitutional.
I spent 38 years as a public school educator, including my final 11 years as the President of our local teachers union in the 33rd largest school district in the country. I detested "what if" scenarios. I far preferred dealing with the reality of what we were dealing with, rather than possible outcomes.
So, that said, I am going to dive into my speculation about what I believe history will uncover regarding Donald J. Trump, particularly in regards to the Mar-a-Lago documents case. As everyone knows by now, Trump does nothing - NOTHING - that will not benefit him. I am convinced that his obsession with the classified documents he took went far beyond his "pack-rat" obsessions. I believe (and again, I clarify that these are MY speculations) that when all the dust settles on the Trump years it will be revealed that the documents (or at least some of them) are connected to the Saudis and MBS, the $2 BILLION given by MBS to Jared Kushner, and LIV golf.
I know there is no real value to such speculation, but if I live long enough to see history put a bow on the legal debacle that is the post-Trump legacy all of the dots will be connected and they will all lead to Trump having cut deals (or at least attempting to do so) with the Saudis.
Oh well, history and great reporters and prosecutors like Jack Smith will either prove me right or leave my speculations on the trash heap of "what if" ramblings. There are likely dots that cover deals with China (think Ivanka's patents) and Putin (think "Trump Tower Moscow").
So, my speculations and $5 will get you a cup of coffee at Starbucks (I don't drink coffee, so I have no idea what Starbucks coffee costs). We'll see.
Well, Robert, you took some of my fear away about Cannon but not all of it. It’s one more cog in the wheel in getting this guy thrown into prison.