United States v. Trump

Well, that was fast.  No having to wait until Tuesday to find out what’s in the indict.  Everything Everywhere All at Once.  Seven charges and 37 counts.

I won’t go into most of what’s in the indictment that got released on Friday, but one point and two highlights leap out.

The point is keeping in mind that as horrific and damning as the evidence is in the indictments -- it doesn't come from third-party he said/she said sources, but virtually all that detailed evidence comes directly from Trump’s own mouth, much or most of it recorded.  And what little isn’t directly from Trump comes from…his own lawyer.

As for the two highlights:

The first is having Trump being actually recorded showing someone a classified map, remembering to at least tell the person not to stand too close (because, y’know, that’s how national security is handled) and in another instance saying to another person who he is showing classified material to –

“All sorts of stuff – pages long, look. Wait a minute, let’s see here. I just found, isn’t that amazing? This totally wins my case, you know. Except it is like, highly confidential. Secret. This is secret information. Look, look at this.”  And “As president, I could have declassified, but now I can’t.”

This blows all of Trump’s public “arguments” out of the water – it shows he had classified material and shows he knows he didn’t declassify it…and shows he know knows he couldn’t.  And further, it shows he was talking about classified material to someone who didn’t have security clearance.  And it’s stories and evidence like this that is going to hurt him with most people outside of the GOP base.  Who were doing to support him anyway.

(Side note: the ludicrous thing about Trump’s quote is that the thing he’s so excited about – material from Gen. Milley that he says “totally wins my case” – is meaningless.  It has to do with supposedly contradicting a news story from years ago (though it doesn’t even contradict anything) – not anything to do with the actual case that Trump is being investigated for, and was just indicted for.  But Trump, unable to be seen as wrong about anything, and obsessed with any slight, is focusing on that meaningless point.  And not only not having his eyes on the critically important issue, but actually helping the case to convict himself by saying this out loud and recorded.)

And second is –

I wasn’t sure I had to add anything to this.

Putting aside that this photos give total, egregious lie to Trump’s ludicrous insistence that he had all the documents in a secure location, the pictures give visceral proof how irresponsible Trump was to national security of the United States.

Much of this is classified material.  That’s material that government agents and sources risked their lives to secure for the defense of the United States.  In fact, classified material that specifically dealt with areas of intelligence sources and methods is so sensitive it can only be viewed in a SCIF -- a sensitive compartmented information facility.  You can’t even bring your mobile phone into a SCIF, because you'd be able to take photos with it.  But…here’s Trump just leaving these boxes in the Mar-a-Lago public ballroom and bathroom, in the business center, his bedroom, a storage room (accessible from multiple outside entrances, including the pool patio) and more, all at this social club which, during the period the DOJ asked for the return of documents, hosted 150 events for tens of thousands of members and their guests.

And as noted before, there was Trump showing classified material to people without clearance – though with mobile phones.

By the way, though for a long while the story has been that Trump was required to return all government documents, whether classified or not, despite his insistence that the Presidential Records Act allowed it, there's something else that hasn't been mentioned much in all the news coverage:  the moment Trump left office, his right to receive classified briefings and possess classified information immediately ended that instant, and he never asked for a waiver, nor did President Biden ever consider giving one.  So, completely separate of the Presidential Records Act about preserving presidential documents that belong to the government, his legal authorization for having classified material ended at noon the day he left office and became a private citizen!  And yet we know from Trump himself saying in recordings that he knew he had classified material.  And knew he shouldn't show it to his guests or to anyone who didn't have the security authorization to see it.  Of which he knew he himself was now one of those!

So, y'know, if Trump wants to know why-oh-why he's being prosecuted for having classified documents, but President Biden and Mike Pence aren't, a really good starting point is that they both actually had the right to possess classified documents, but he didn't.

It should be remembered, as well, that the indictment references 31 classified documents -- but far more documents than that, 120 of them, were actually seized by the FBI from their search warrant.  However, as dangerous to national security as those 31 documents are, they're only a quarter of the number of documents confiscated, and these other documents, a full 75% of the total, were not only more sensitive, but too sensitive to even include in the indictment. 

In a closely-related story, it was announced Friday that Judge Aileen Cannon – the Trump appointee who oversaw the previous Mar-a-Lago documents challenge and had her rulings reversed twice by a conservative appeals court panel in scathing rebukes – was assigned to oversee the case.  Which is too bizarre, and which has understandably caused concern about her fairness.

I have the same concerns.  It was teeth-gnashing to hear the news.  But assuming that this remains the situation, I put on my “Looking on the bright side” hat and had four thoughts – 1) Given that she was reversed twice, and there is now SO much massive attention on the case and her rulings, she may be less disposed to rule the way she did before and try to be more fair.  (And constitutional expert Laurence Tribe goes farther, putting it in another perspective, noting that for this trial Judge Cannon will have read the detailed indictment beforehand, and that hopefully that will give her great pause about the man who appointed her and wants to be president again, to the extent of not bending over backwards unfairly in his favor, but treat him and all parties equally)  2) With her as Judge, Trump will have no believable way to complain about decisions from the bench.  3) The appeals panel that reversed her twice before is still there.  And, I am sure, on full alert, waiting in case.  And 4) Jack Smith surely knew it was very possible that Judge Cannon was assigned to the case, and he clearly felt that it was still more advantageous to file the indictment in her district.  So, I'm certain his team is as prepared as possible to deal with any challenges.

That said, yes, it’s awful.  However, there is still another possibility – here’s this from MSNBC legal analyst Joyce Vance:

"I used to be an appellate chief in the 11th Circuit (where Florida is) and I litigated a few appeals where we asked the court of appeals to order a judge to recuse.

"Although a judge's behavior in court generally doesn't form the basis for recusal, the 11th Circuit has ordered 'reassignment' where a judge leans so heavily for a defendant they call their objectivity in the eyes of the public into question."

Now, of course, this doesn’t mean the DOJ will ask for a new judge (though it’s hard to imagine that they won’t), or that even if they do she will be reassigned.  But it’s always valuable to read Joyce Vance’s experience and opinion on the subject.

Related to this is that Judge Cannon has only been appointed to the preliminary phase of the case.  And though she likely would remain the judge through the trial, that it is not a guaranteed certainty, a point that Joyce Vance also noted later in her analysis.

By the way, the article that had her comments also ends with this.  Yes, it has a whole lot of “if’s” in it, but does make the point I noted above --

“One of the other conclusions, tweeted Supreme Court reporter Lawrence Hurley, is that if Cannon really does see the case through from beginning to end, and the jury finds Trump guilty, all of his claims about the case being a political hit look laughable.

"’If Trump ends up being convicted in a case overseen by a conservative judge he appointed (w/ appeals handled by a conservative majority appeals court and SCOTUS) it would make it a little more difficult to claim it's a baseless partisan witch-hunt.’"

And all of this, along with the indictments now finally released , brings us around to a comment I made yesterday after noting a vigorous all-in defense of Trump by House Speaker Kevin McCarthy (R-CA).  I wrote --

“Speaking of which, given that no one yet know the charges against Trump or evidence the DOJ has, I think GOP officials who are going all-in to defend Trump (like McCarthy) might end up their own worse enemy, most especially in an election  year.”

Well…now we do know the charges against Trump and have seen some of the evidence that the Justice Department has. 

The charges include unlawful possession of classified documents concerning weapon capabilities of the United States and foreign countries, nuclear programs of the United States. nuclear capabilities of foreign countries, military capabilities of the United States, foreign country support of terrorist acts against the United States, plans for retaliation in the case of a foreign attack, and more.  And the evidence includes recordings of Trump talking about classified material to people without security clearance and acknowledging that the material is not declassified, and he’s not able to declassify them since he’s no longer president.  And the photos of classified material just out in the open at Mar-a-Lago Country Club.

And more.

For all those Republican officials (like Kevin McCarthy) who went all-in to defend Trump, now that we know what the damaging charges are and even just some of the damning evidence, they might indeed end up their own worse enemy, most especially in an election  year.  Having to explain on the campaign trail to the general public, not just the MAGA extreme right, why they think what Trump did was just swell.

Y’know, it must get wearying to keep trying to defend Trump. He's been sued over 4,000 times in 30 years (that’s more than one suit every three days)!  Had his charity foundation shut down for fraud, settled his fraud "university" for $25 million, had his company found guilty of a decade-long tax fraud scheme, been found liable for sexual assault, impeached twice… and so much more.

Wearying is the polite word.  It must be bone-crushing, soul-draining exhausting to continue trying to defending Trump.  Over and over and over and over and over and over again.  And again.  And again…

Here is a link to a searchable version of the indictment.