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Notes -
It's been a long time since we've discussed Trump, and there have been a number of developments in the court cases against him, and so I'm here to say that our long mottizan nightmare of peace and tranquility is finally over.
Florida
CNN: Federal judge indefinitely postpones Trump classified documents trial
Trump's trial in Florida over classified documents has been indefinitely postponed. (Jack Smith had requested it start the day after Trump's New York trial ended.) It turns out that new revelations made in documents Trump's lawyers requested have upended the case. CNN doesn't elaborate on what happened, for which I'll turn to this story:
Prosecutors admit key evidence in document case has been tampered with
It turns out that when the government alleged that Trump had classified documents he was not supposed to have, the government itself did not accurately know which documents Trump had, or which documents Trump was even supposed to have. Actually, worse than that, it turns out they fabricated some or all of the accusations. For instance, that famous picture of classified documents with cover sheets raided from Mar-a-Lago? It turns out those documents didn't have cover sheets, the FBI staged them before photographing, and they didn't even correctly label all of the documents they supposedly took:
The DOJ's Doctored Crime Scene Photo of Mar-a-Lago Raid
In order to prove Donald Trump had documents he wasn't supposed to have, the goverment took documents Trump had (that the NARA gave him in mislabeled boxes) and added cover sheets for photographs to them.
Whoops!
Judge Cannon has indefinitely postponed trial while Jack Smith's prosecutors work out answers to the questions posed by all these new revelations.
Georgia
CBS: Georgia appeals court will review decision that allowed Fani Willis to stay on Trump's Fulton County case
News-watchers will remember that, several months ago, it turned out that Fulton Prosecutor Fani Willis was hiring her secret lover to work on the Trump election fraud case. He was paid hundreds of thousands of dollars while they dated and went on vacations together, for which she insisted (without evidence) that she always paid him back. This posed a serious concern of misconduct and the risk that Fani Willis would be forced off the case entirely. After weeks of wrangling, Judge McAfee ruled that Willis could stay on the case, as long as Nathan Wade did not. Trump's team appealed the ruling, and now, the Georgia Appeals Court will hear the decision:
Re-hearing the Fani Willis conflict of interest decision might lead to a repeat of the earlier hearing, where Fani repeatedly shouted over the courtroom and judge:
Fiery DA Fani Willis loses it on lawyer during misconduct hearing: ‘Don’t be cute with me!’
[...[
So the question of prosecuting Trump over the 2020 election in Georgia will have to wait until it's determined how much of a liar the prosecuting DA might or might not have been.
New York
This trial is the juiciest of all, as it is currently in session in New York, with the judge threatening to have Trump locked up:
CBS: Trump held in contempt again for violating gag order as judge threatens jail time
Trump has promised, in interview and social media post, that he's willing to go to jail for exercising his First Amendment rights to criticize Judge Merchan, having said in April that it would be his "great honor" to go to jail for violating Merchan's gag order.
The issue really stems from Trump's accusations of political bias in the New York courtroom. The gag order was imposed after Trump attacked Merchan's daughter for working for Democratic fundraisers:
Dem clients of daughter of NY judge in Trump hush-money trial raised $93M off the case
Another such example is that one of Bragg's prosecutors working the case is Matthew Colangelo, who left the #3 position at DOJ under Merrick Garland to work the Trump case:
Daily Mail: REVEALED: New PROOF the anti-Trump prosecutor in hush money trial is a 'true believer' in Leftist 'lawfare'... as Matthew Colangelo is exposed for taking thousands of dollars from Democratic party
Judge Merchan himself, it turned out, donated (a small amount) to the Biden campaign:
Judge Juan Merchan, who is overseeing Trump case, donated to Biden campaign in 2020
The state is arguing, in effect, that Trump, by paying Stormy Daniels in 2017, falsified business records that should have rightfully been marked as a campaign contribution, and thus constituted a conspiracy to undermine the 2016 election. The count of falsifying business records is a misdemeanor under New York State Law, but can be elevated into a felony charge if the business records were falsified with the intent to commit another crime. Curiously, Alvin Bragg has alleged that Trump falsified business records to commit another crime, but has not charged him with committing any other crimes:
The New York Case Against Trump Relies on a 'Twisty' Legal Theory That Reeks of Desperation
Section 17-152 has never actually been prosecuted to this effect, so the case is entirely novel. New York is arguing, in effect, that Donald Trump engaged in a conspiracy to undermine the 2016 election by falsifying business records in 2017.
This case is a hot one as it is currently in trial, and will likely be resolved with a few weeks. The question of whether the jury can be unbiased in such conditions is ongoing.
I will omit Trump's last criminal court case, the January 6th case run out of DC, as it is currently pending on a Supreme Court decision as to whether Presidents can even be tried for official acts in the first place, which would throw the whole case back down to the lower courts to disentangle which of Trump's actions on January 6th constituted private action. It goes almost without saying that, if Trump were elected in 2024, he could have the authority to fire Jack Smith and derail both this case and the documents case in Florida.
Does it, though? Because I, for one, am not sure about that at all. Because, first, does a president have the authority to fire an A.U.S.A like Smith on paper? Second, even if a president does have that power in theory, well, how DC is supposed to work on paper and how it actually works are two distinct things, so is this a power the president has in reality, or merely on some musty old piece of paper nobody who matters cares about? (I here link this marginally relevant Substack piece from our dear @KulakRevolt.)
Third, and perhaps most important, even if a president has such a firing power in general, one could easily argue that in this situation Trump would not, because allowing him to use said otherwise-legitimate authority "to fire Jack Smith and derail both this case and the documents case in Florida" against him would so fatally-undermine basic justice and the rule of law that the very survival of Our Democracy demands the suspension of said authority until the cases are resolved, and that it be incumbent upon all to #Resist any attempt by Trump to remove Smith.
My personal expectation is that none of these things are going to matter — the system is going to find some way to push past all these roadblocks and keep these cases going.
It's definitely an open question. But I don't think it amounts to much. Trump can pardon himself, he can fire everyone involved he can get his hands on, he can declassify any and all documents involved, he could order the entire classification system revoked. If Congress is on his side, they can open investigations into the investigators, they can defund the offices involved. And even if Congress isn't on his side, they couldn't impeach him before and won't impeach him over this.
Anything could happen, but I find it very unlikely that Trump's enemies will really push (escalate) a Constitutional crisis over classified documents the public isn't even allowed to know the details of, especially given all the other issues with this case.
Again, I dispute this. If he says John Q. Bureaucrat is fired, but the rest of DC says Mr. Bureaucrat isn't fired; they still work with Mr. Bureaucrat when he comes into the office; payroll still issues Mr. Bureaucrat his paycheck; and they have the guy Trump appointed to replace John hauled out of the building and arrested for trespassing, because he doesn't work there, since the job he claims to hold is actually still held by Mr. Bureaucrat; and anyone who tries to remove Mr. Bureaucrat on orders from Trump gets arrested themselves by the FBI for attempting to obstruct a federal employee in the exercise of his duties, because Mr. Bureaucrat is still a federal employee… then has John Q. Bureaucrat really been fired?
And if everyone ignores him, and keeps treating them as classified anyway?
And if everyone ignores him, and keeps acting as if the system is still in place?
With what people? Who are they going to order to carry out these investigations? What if those people ignore that order? Or side with those they're "investigating" against Trump and Congress?
Government "shutdowns," where nothing shuts down and the executive branch continued to spend and disburse funds without the constitutionally-mandated Congressional authorization, say otherwise. What happens when Congress "defunds" the offices, and Treasury just ignores them and keeps issuing the offices their funds as before?
Why not? I don't understand why everyone seems to think a "Constitutional crisis" would be any kind of big deal. What would change, really?
From my limited understanding, the president is the head of the executive, and any democratic legitimacy of the federal bureaucracy ultimately comes from the fact that the bureaucrats are enacting the will of a democratically (or however you call the electoral college system) elected president. While there are certainly mid-level bureaucrats who would do everything legal in their power to thwart his preferred policies (and some might even risk their job by going beyond that), I think the rest of DC pretending that Trump does not exist will not be an option. For one thing, do you really suppose the Supreme Court would play along with that? If they do not, should the rest of DC also pretend that the Supreme Court does not exist?
We already had four years of Trump. He was not my favorite president, but contrary to predictions from the left he turned out not to be the reincarnation of Adolf Hitler. I don't think he would build death camps in his second presidency. It would not be the end of the world.
On the other hand, democracy in the US had (with one notable exception) been a great success in avoiding conflicts being resolved by force of arms. Even if Trump's supporters would idly stand by while the executive defected, the long term effects of establishing that the federal bureaucracy is independent of the president would likely be violent.
Trump's second term would not be about replacing the constitution with the Fuehrerprinzip. If he gets the EC votes, he may get out of legal troubles which may or may not have been politically motivated in the first place. This will not be the end of the world any more than Nixon getting pardoned about Watergate was the end of the world.
Again, this is how it's supposed to be, on paper. But that matters as much as when Bart Simpson was sent back to kindergarten:
The law isn't what's written on paper, the law is whatever is enforced. There's how the "employee handbook" says a workplace is supposed to work, and then there's how the workplace actually operates. (The very existence of "bothering by the book" and malicious compliance illustrates that there's a difference between the two, sometimes rather vast.) The written constitution is like an ignored, out-of-date employee handbook.
Maybe, maybe not. But it won't matter.
Absolutely yes. Because there's no actual enforcement mechanism for SCOTUS decisions, except the willingness of the executive to heed them. From the federal court system's own webpage:
And from Cliff Notes:
(DC still hasn't given Mr. Heller his permit.)
Not really. I mean, sure, maybe a few people might resort to violence, but only a few hundred at most, and they'll all be lone actors independently pursuing disorganized, poorly-targeted acts of domestic terror. Nothing that the FBI and ATF won't be able to handle (particularly given that at least half of our would-be rebels would be receiving "assistance" from someone in the pay of the FBI). Maybe you get a few more "Oklahoma City"s, but, as in that case, the perpetrators will accomplish nothing but creating martyrs for the other side, tainting their own side by association, and getting themselves executed (assuming the state takes them alive at all). And once a sufficiently-strong example is made of these people, most everyone else will be disincentivized to follow in their footsteps.
The nice thing about democracies is that there is a peaceful path forward if you are unhappy with an administration. Canvas for your issue, change the mind of the voters, change the stance of politicians or get elected yourself. Not an easy path forward, but with some notable benefits over the alternative.
This Calvin and Hobbes comic illustrates the position the bureaucracy would find itself in if they decided to do their thing without the blessings of President, SC and Congress.
And while this is getting deep into silly "could Darth Vader take Superman in a fight?" hypotheticals territory, there is the fact that the federal police agencies are not the strongest kid on the block. The US military seems kind of big on following a chain of command which ultimately ends with the president. They obviously will be reluctant to interfere within the US, but if the constitutional organs of the US are in agreement that a part of the DC bureaucracy is in rebellion, I strongly expect them to intercede on the side of the constitution. And a battle of federal law enforcement vs the US army would be even more lopsided that a battle of Feds versus Trump militias.
They pre-emptively refused to quell the Floyd Riots, and that was before the COVID purges.
Exactly. Anyone expecting the Pentagon brass to intervene on behalf of Trump (or Red America, for that matter) is bound to be sorely disappointed.
And this is all contingent on Trump even winning. Odds are, we get a second Biden term, followed by a younger and lefty-er Dem after that (and after that, and after that…)
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