Arraignment Day: The Legal and the Political Cases

The Legal Case

As former Attorney General Bill Barr said, “This would have gone nowhere had the president just returned the documents. But he jerked them around for a year and a half.”

Indeed. 

By now, I suspect you’ve read enough about Donald Trump’s indictment by the Justice Department and how detailed it is and how damning it is and yada yada. So let’s talk defense. 

I want to emphasize a couple things first. Trump isn’t charged with taking the documents from the White House. He’s charged with 1) keeping the documents after federal law enforcement asked for them back, 2) hiding the documents after they asked for them back, and 3) lying about it. 

Barr also said that “if even half of it is true, he is toast.” But is he like fully burnt toast? Or just maybe a crisp brioche bun? 

The jury: Juries are composed of 12 people who weren’t able to get out of jury duty. (Note: I’ve tried very hard to get on a jury without luck … but my profession and desperation probably give me away.) They’re unpredictable by nature. A jury in Palm Beach County might be a little more Trump-friendly, but you’ll often find that people take their jobs seriously and follow the facts. Then again, if you’re the defense, all you need is one. The government can retry someone after a hung jury—though in this case I think it would be exceedingly embarrassing and unlikely—but cannot appeal an acquittal. 

The judge: Last year, Judge Aileen Cannon ordered the appointment of a special master to review the records seized from Mar-a-Lago. That call, which would have delayed special counsel Jack Smith’s investigation, was quickly and unanimously overturned by the appellate court. So that could mean one of two things: Judge Cannon is in the bag for Trump or Judge Cannon just got it wrong. 

Are there grounds to remove her from the case or force her to recuse herself? Absolutely not. Judges get overruled all the time and the case is returned to them. Being wrong isn’t the same as lacking impartiality. Aside from being appointed by Trump, there’s no evidence of the type of conflict that would even rise to the level of asking a judge to recuse herself. (And if you think being appointed by the president being targeted in the case is enough to recuse, then you’ll need to talk to Justices Ruth Bader Ginsburg and Stephen Breyer about their votes in Clinton v. Jones.) Justice Sonia Sotomayor isn’t recused from the Harvard affirmative action case even though we think she is generally in favor of affirmative action. Disagreeing with someone’s judicial philosophy or their past opinions isn’t the same as questioning their impartiality.

But let’s assume for a moment Judge Cannon is a total whackadoo. Can she throw the case? Maybe not as much as you think. Without getting too far in the weeds, a lot of her decisions would still be subject to appellate review along the way. And some of these rulings have already been made—like whether attorney-client privilege adheres to the conversations that were cited in the indictment. (It doesn’t.)

No doubt everything she does from the bench will be scrutinized, but one thing worth watching is the jury instructions that will come at the end. Juries decide questions of fact—is that witness credible or whose version of events do I believe more? Judges, though, decide questions of law and give the jury instructions as to what questions they are trying to answer. “You should find the defendant guilty if you believe that he knew these documents bore classified markings” is different from “you should find the defendant guilty if he knew the information in these documents was classified.” Jury instructions are a big f—ing deal. 

I’d also note that it may be very helpful to the prosecutors to have a “pro-Trump” judge. If they have to climb through a thicket of hoops and still get a conviction, it will make it that much harder for Trump to challenge it on appeal: If Trump gets every legal call to go his way and still loses, then that’s that.

The timeline: The Speedy Trial Act says, in short, that a defendant’s trial cannot start before 30 days or after 70 days of his first appearance in court, but pretrial motions can extend that 70-day clock. What does this mean? The ball will be in Donald Trump’s court to decide whether he wants this thing to move quickly or slowly. I’ve heard plenty of people speculate both ways and without knowing which attorneys will actually be representing him here it’s hard to even guess what advice he’s getting let alone what advice he may follow.

The Presidential Records Act and the Clinton sock drawer case: I’ve seen some folks try to offer some preliminary arguments in Trump’s defense. Most of them deal only with the willful retention of classified documents. I haven’t actually seen any defense for the whole “lying” and “obstruction” stuff. And, as goes without saying, even if you knock out counts 1-31, there’s still 32-37. I.e., you’re still under federal criminal indictment. All it takes is one! 

I’ll spend more time on this defense as time goes by—if and as needed—but here’s how the argument goes: The Presidential Records Act is actually pretty loosey-goosey and the president gets to decide which papers are personal and which ones are official. And we know this because a federal judge in 2012 held that the National Archives had no ability to go get records from Bill Clinton because “the PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records.” Ergo, by virtue of packing these documents up in boxes to Mar-a-Lago, Trump deemed them as personal records and therefore the National Archives had no claim over them. 

First of all, one D.C. district judge does not a precedent make. Judge Cannon would be under no obligation to follow this ruling. Second, see my previous point that none of this matters to the charges about false statements and obstruction. Trump had the ability to challenge the seizure of his papers in court—not hide them in the bathroom. Third, and most importantly, this isn’t a dispute about whether these papers are official records or personal records. Charges 1-31 are about the willful retention of national defense information, which is defined as “any document … relating to the national defense.” So this case doesn’t matter as much as Trump’s defenders would like you to believe. 

But it’s not quite that simple either. These charges stem from the Espionage Act, which has all sorts of problems legally and historically. Another presidential candidate, Eugene Debs, was convicted under the Act and sentenced to 10 years in prison for a speech criticizing the draft in WWI. His case went all the way to the Supreme Court, in which Justice Oliver Wendall Holmes wrote for a unanimous court upholding the conviction and the constitutionality of the Espionage Act. Not great. And might be worth noting that Eugene Debs got a million votes in 1920 from prison. I’d expect a full-on assault on the applications of the Espionage Act to a president. And it will be a lot more relevant that Trump isn’t charged with taking the documents in the first place—an act almost certainly protected while he was president at 11:59 a.m. on January 20, 2021, but in keeping them after the current executive asked for them back. 

The Political Case

But how do you run a presidential campaign when the frontrunner is under federal indictment?  

First, consider your audience. Second, consider your options. 

GOP primary voters don’t want to hear attacks on Donald Trump. This is a team sport and they aren’t going to tolerate being told that there’s anything wrong with their team captain. But that’s a problem for the candidates running against him. They can’t win unless they can pull voters away from Trump. So how do you get voters to switch allegiances without attacking Trump? 

The obvious answer to me is electability. “Trump is great, he’s being targeted by his political enemies, it’s not fair, but they aren’t going to stop and he simply can’t win.” The problem is that that message is a hard one to sell, too. 

According to this CBS poll, voters still think Donald Trump has the best shot at beating Joe Biden—even post-indictment. If I’m on DeSantis’ team, there’s no number that I am more focused on for the next few weeks. Electability may not be the ball game, but it is the doorway. If you can convince primary voters that their favorite candidate can’t win, they are going to be open to another candidate. But if they prefer Trump AND think he has the best shot against Biden, the door is shut. 

The good news for all of these candidates—well, it’s good and bad—is that nobody is listening to them right now anyway. Like in 2016, all of the oxygen in the room is going to Trump for the time being. They can put out statements that people like me are reading, but Tim Scott’s tweet or Mike Pence’s radio interview are not going to break through for the time being. 

With Trump taking all the attention, time is ticking by and he is able to run more time off the clock. These guys need to put points on the board, but all they do for now is attend retail events in Iowa, check in with donors, and do some early debate prep. 

Because the one thing this whole “the frontrunner is under federal indictment” thing may have done is shake up the calculus around whether Trump shows up for the first debate. And if he does, it may be the only shot for some of these candidates to break through. If they want to break through. 

In the meantime, the 2024ers do seem to be road testing some new talking points now that they’ve seen the charges. The shift from “Democrats weaponized DOJ” to “Yikes, umm, this looks serious” is subtle but here’s a taste:

Nikki Haley: “More than that, I’m a military spouse. My husband’s about to deploy this weekend. This puts all of our military men and women in danger if you’re going to talk about what our military is capable of or how we would about invading or doing something with one of our enemies. And if that’s the case, it’s reckless, it’s frustrating, and it causes problems.”

Tim Scott: Scott referred to the charges as a “serious case with serious allegations” at a June 12 campaign appearance and then told reporters after the event that, “What we see today across this administration of President Joe Biden is a double standard. That double standard is both un-American and unacceptable. You can’t protect Democrats while targeting and hunting Republicans.”

Ron DeSantis: “As a naval officer, if I would have taken classified [documents] to my apartment, I would have been court-martialed in a New York minute. … Is there a different standard for a Democrat secretary of state versus a former Republican president? I think there needs to be one standard of justice in this country. Let’s enforce it on everybody and make sure we all know the rules. You can’t have one faction of society weaponizing the power of the state against factions that it doesn’t like and that’s what you see.”

And then I’d be remiss if I didn’t also include what Chris Christie said during his CNN town hall this week: 

“There are people in my own party who are blaming DOJ. How about blame him? He did it. He took documents he wasn’t supposed to take, he kept them when they asked him back for them, he got a grand jury subpoena, he refused to comply, they raided his home finally because he refused to comply. All of those things were brought on himself, as was this indictment.”

The assumption was that Christie would attack Trump during the primary, and he is. But from a strategic standpoint, Christie’s attacks on Trump serve more to highlight the wishy-washiness of the other candidates’ statements. Christie doesn’t sound like he’s trying to tip-toe or thread any needles. His candidacy may do more to make the others look less authentic as we move forward.

Bottom line: The indictment may hurt Trump and this may be a turning point in the GOP primary. But we aren’t seeing any evidence of it in the polling and—more importantly—we’re seeing very scant evidence of even that possibility in the behavior of Trump’s GOP rivals. If this race is going to change, they’ll need to run against Donald Trump. That has yet to happen in earnest. 

Dessert

If you want to teach your kid history, logic, or statistics this week, look no further than this gem: