Donald Trump was arraigned in Miami in federal court on Tuesday, June 13, 2023.
He faces 31 counts of willfully retaining national defense secrets, each of which carries a maximum sentence of 10 years in prison.
The former president has also been charged with conspiracy to obstruct justice, corruptly scheming to hide information from the government and lying to investigators. (NYT)
REPUBLICANS DEFEND TRUMP
The immediate knee jerk reaction of most Republicans in congress, especially in the MAGA infested House, was to complain about the unfairness of the indictment and fall back on bothsideism. They insist that Trump is being singled out for political retribution by the Democrats. Why, they argue, didn’t Hillary Clinton get indicted because of her emails? How about Biden and those documents at HIS house? These might sound like realistic arguments at first, but over time, this comparison will become a problem for these Republicans. As time goes on and more of the information in the indictment is understood, it will become ever clearer that Trump was not indicted for having these documents at his resorts even though he should not have had them there. That’s not the crime he got indicted for. None of the documents he returned to the Archives were part of the charges he got hit with. Trump only got indicted for documents he refused to return.
These are not just any documents. They are extremely super sensitive national intelligence documents. If they got exposed to our enemies that may have endangered or ended the lives of confidential informants we have cultivated for years. Many of these documents contain top secret intelligence that, in the wrong hands, could limit or damage the ability we have to defend our country.
This is on Trump. If he had just returned the documents the FBI and DOJ would probably have limped away and forgotten about the whole thing! Our country would not be put through the first ever criminal prosecution of a former president. This all could have been avoided if Trump had behaved like Clinton or Biden or Pence and said -“my bad”, “sorry” and simply returned the stuff to the rightful owners, namely, us, the American people held for us at the National Archives.
He didn’t do that. He had to be “he who must be obeyed”, “he who is still president even though he isn’t”: A rebel, The angry not so young man who won’t do as he is told. Or, as we are learning more from his close aides, a man who kept these sensitive documents close to him like Gollum needed “my precious”, the magical ring in Lord of the Rings that Gollum kept obsessively close to him at all times. Trump insisted that people not look through “my boxes”. Trump is sounding more and more weird as we learn details surrounding his behavior hoarding these documents.
We have yet to learn WHY he hoarded them in his bathroom, the ballroom at Mar-a-Lago, his office, a closet etc. We don’t yet know the true motive. But if past behavior predicts future behavior, you could wager that something had to be in it for Donald Trump because that’s how this guy rolls. Maybe he saw them as his bargaining chips, his get out of jail free card.
Congressional Republicans are going to pay the price for standing by their man if they continue to do that because as more evidence comes out these Republicans will have to somehow manage to claim they support protecting our country while excusing Trump for failing to protect our country. That will cause many Republicans to turn themselves into human pretzels. Watch for that. It could be fun.
Some Republicans would prefer to avoid becoming human pretzels. Those folks are starting to edge away: Nikki Haley, Mike Pence, Sen. John Thune, Reps Don Bacon, Ken Buck, Lisa Murkowski, Tim Burchett, Dan Crenshaw. There are only a few so far. But it is still early. To the extent that House Republicans in 18 districts Biden won cannot, even now, part from Trump, they will be sorry.
It is remarkable how Trump is destroying the Republican Party little by little and helping the Democrats to win more broadly across the country. Yet, with all the Republican hopefuls jumping into the presidential race because they see blood in the water, the likely result will benefit Trump. The net effect will be to divide the non-MAGA vote and push Trump across the finish line in primaries across the country. His cult following of about 30% are people who will never leave him.
HOW WE GOT HERE
When Trump was president, he challenged the rule of law and attacked our institutions including the FBI and our intelligence agencies, the news media, and anyone who opposed him. At first it seemed outrageous and then it became more normalized. This is how authoritarian governments creep in and take hold in formerly democratic countries. The Christian nationalist movement in this country is trying every trick in the book to empower their dying minority party, the GOP, through a variety of cheats: claiming they didn’t lose when they did, gerrymandering, voter suppression, crooked election judges who don’t follow the law, state legislatures that disenfranchise people of color in cities where voters don’t usually vote for them etc. They saw Trump as their golden ticket. Trump was and still is extremely gifted at reading a crowd. He ramps up his rhetoric when he gets a positive reaction from the crowds. He was and still is trusted by low education white men and seen as one of them. Trump was the horribly flawed man who became the perfect vessel for growing authoritarian movement in our country.
Trump started out his presidency testing the knobs on the doors to see what he could open and get away with. Over time he saw he got away with just about everything. No rules, just right! Mueller Report. Nada. Impeachment #1. Nada. Impeachment #2. Nada. Pass a bill to make the 1% even richer, adding trillions to the national debt. Nada. He could ignore the emoluments clause in the constitution and use the presidency to enrich himself. He could elevate white supremacists and get away with that. He could lie over 30,000 times and face no consequences. He was Teflon Don. He probably came to believe he DID walk on water!
Yet there were signs of growing disfavor. As Americans got to know him better, he lost his appeal for far too many independent voters, moderate Republicans, soccer moms, most black and brown people and young voters. After winning narrowly in 2016 he caused the GOP to lose elections they could and should have won. With him at the head of the GOP, Republicans lost the House, the Senate, and the White House. They narrowly won the House back in 2022 but with a slim majority when they were expected to have a robust red wave. Key state houses flipped red to blue in 2022 that were thought to be battlegrounds: Michigan and Minnesota come to mind. Above all, the big tell was that Trump lost the presidency after only one term in office. Once out of office, he was no longer protected by the powers of the presidency whether or not he believed that.
Now do this thought experiment: What if DOJ had NOT indicted Trump for doing what he did based on the information we just learned in this indictment? Had DOJ not indicted Trump. that would have been a hugely significant blow to the rule of law in this country. How could they defend the decision to let him skate but indict Jack Teixeira and so many others for doing something very similar? That was impossible to do and still claim that no one is above the law. Trump was not the president anymore. Just running for office doesn’t give you any special status in the eyes of the law. He defied some of the most critical national intelligence laws in our country. Many other people have gone to prison for far less compared to Trump when it comes to violations of the Espionage Act.
Given the information in this indictment, Trump was, plain and simple, double dog daring the DOJ to indict him. It was like he was sticking out his chin and daring Jack Smith to punch him.
THE RULE OF LAW WILL BE ON DISPLAY FOR THE WORLD TO SEE
The American justice system will be closely watched not only by people in our country, but people all over the world when Trump is tried. The hallmark of a true democracy is the rule of law applied fairly and impartially to everyone. Faith in our legal system is on the line with this trial.
The next activity will be pretrial motions. Watch for them.
They include motions to dismiss the case, discovery, motions to suppress evidence or exclude evidence from the jury, and possible motions for prosecutorial misconduct. Many of these motions are routine motions brought by most defense attorneys on behalf of their clients because the system is required to be impartial and fair to the defendant. The motions test the judicial system to make sure the defendant gets every benefit he is entitled to have. Watch for the following motions that are likely to be raised by Trump’s counsel:
1) A motion that alleges selective prosecution (Why didn’t Hillary get indicted/ was Trump treated unfairly because he was indicted?)
2) A motion alleging Trump had the authority to do what he did under the Presidential Records Act or some other law. (Does the Presidential Records Act give Trump the right to keep these documents? Spoiler Alert: NO! but watch for this motion to be presented and argued.)
3) Should evidence be excluded because of an unlawful search and seizure? (The answer here is again NO, but this motion is almost routinely raised by defense counsel pretrial to be sure the government proves it had the right to do what it did when it searched a home or premises.)
4) There will surely be a motion to suppress the evidence that was obtained by piercing the attorney client privilege. That allowed Evan Corcoran’s notes to be the basis for numerous counts in the indictment. I would expect this judge, Aileen Cannon, who has already shown herself to be biased in favor of Trump in her rulings prior to indictment, to allow this issue to be relitigated in her courtroom. Judge Beryl Howell, who allowed the attorney-client privilege shield to be pierced based on the crime-fraud exception, hails from a more lenient judicial circuit. Cannon might find a way to exclude the evidence the government obtained thanks to Corcoran’s notes. This would help Trump out by limiting the number of charges he faces.
Also note, however, that Judge Cannon was resoundingly overturned on appeal in her first rulings in the case having to do with the subpoena to search Mar-a-Lago. She was overturned by a three-judge panel of the 11th Circuit where two of the judges were Trump appointees just like her. She was overturned not once but twice. Most judges are embarrassed to be overturned on appeal and the panel was extremely irate with this young judge in its written decision, castigating her decisions. She is definitely a LOOSE CANNON when it comes to being a fair and impartial judge who relies on the law.
District court judges have a lot of power. She could grant a motion to dismiss the whole case, for example. However, if she hasn’t learned anything, it will become apparent very quickly and Jack Smith’s team will be able to appeal another bad ruling to the 11th Circuit as well as ask the panel to remove her as judge. If she also slow-walks the case and gives Trump the opportunity to delay and delay, there is another card that Jack Smith might have to play.
Smith’s “trump card”?
Some of the most egregious acts that Trump engaged in took place in Bedminster, New Jersey. Trump “disseminated” (showed) highly sensitive documents to people at his club who did not have clearance. The rules governing venue (dictating the district court where a case can be brought) caused Smith to indict in Florida, but those incidents occurring in Bedminster, New Jersey, not only could but might arguably need to be indicted separately in New Jersey. Judge Cannon would not control a separate case brought in New Jersey. In short, the DOJ may have the option of bringing another even more damning indictment in either New Jersey or DC where the judge and jury would be more favorable to the prosecution.
WHAT IS COMING
The legal system in our country is one of the gems of our democracy. I have every faith in the Department of Justice to do an excellent job in this case. The indictment also does not contain all of the information, facts, and evidence that will be presented at trial. There is much more to come. That information will find its way into the public news stream and consciousness as the motions are argued, for example. This is another reason why more Republicans are likely to edge will away from Trump over time. Not to mention there is another indictment of Trump coming out of Georgia this summer. And possibly another one from DOJ for his role in the January 6th insurrection.
A big problem, however, could be the glacial slowness of our legal system. Most defendants in a criminal case want a speedy trial. Jack Smith wants a speedy trial. The electorate needs a speedy trial to know who they are voting for in the next presidential election. And Florida is known for its so called “rocket docket”. But Trump is not the typical defendant. Trump wants to delay this case with the hope that he could get himself elected president again before he is convicted. Once convicted it could be harder to claim he is a political victim. It would be 12 Florida citizens finding him guilty beyond a reasonable doubt with a judge who was on his side in a state that is full on MAGA. If Trump got himself elected president, on the other hand, he would fire everyone connected to this case, dismantle the Department of Justice and go on his revenge tour for the rest of his time in office, destroying our democracy in the process.
Let’s just say the stakes are huge.