The Week Ahead

Happy Sunday! The big story of course is Donald Trump’s indictment. But within that big story are several smaller ones, for which we mostly have questions and no very clear answers yet. Let’s jump right in.

How will the arraignment go on Tuesday?

Trump has signaled to his base that he wants to see them show up in Miami, so a big question is whether MAGA and, more ominously, right-wing militias will seek to disrupt, cause mischief or even turn violent. The New York Times reported an uptick in dangerous rhetoric online, and opportunistic politicians such as Keri Lake have signaled that armed response to Trump’s arrest is appropriate.

“I have a message tonight for Merrick Garland, and Jack Smith, and Joe Biden. And the guys back there in the fake news media, you should listen up as well, this one’s for you,” Lake said at a GOP event in Georgia. “If you wanna get to President Trump, you’re gonna have to go through me, and you’re gonna have to go through 75 million Americans just like me. And most of us are card carrying members of the NRA. That’s not a threat, that’s a public service announcement.”

When Trump faced his arraignment in Manhattan, there were only a few protestors assembled. Florida, however, presents a more Trump-friendly environment than New York, and that might embolden his supporters. Weighing against large scale protests, however, is the fear that the FBI will use the occasion to identify and start investigating attendees. There is also the possibility that the first indictment in New York released enough pressure to permit a second set of charges to land without much unrest. We will have to see.

What about Judge Aileen Cannon?

In a stroke of bad luck, the judge assigned, apparently at random, to the case is none other than Judge Aileen Cannon, infamous for leaning heavily for Trump in the civil case he filed earlier to seek the appointment of a Special Master to review the documents seized from Mar-a-Lago. She wound up getting reversed because her legal reasoning was so flawed and illogical, and so she may be sufficiently chastened by that experience to not lean so heavily this time around. All eyes will be upon her, including her superiors at the Eleventh Circuit.

That said, a pro-Trump judge isn’t great news, either for how rapidly the case will move forward or for things like pre-trial motions, the rules of the case around classified documents, or ultimately sentencing if there is a conviction. If Cannon does not recuse herself, there is a chance the DoJ will move to have the case reassigned on grounds that Cannon’s impartiality might reasonably be questioned or that she is personally biased. The facts of such a motion would center on her baffling rulings in the civil matter around the Special Master. As noted by Florida attorney and former candidate for state attorney general Daniel Uhfelder, if an “objective, disinterested lay observer would entertain significant doubt” about her impartiality, then the motion could succeed.

I certainly know my own sentiments on this question, but that admittedly doesn’t accurately predict how a conservative appellate panel might rule.

GOP reaction to the indictment

The range of reactions to the news of Trump’s indictment on 37 counts under charges that include violations of the Espionage Act, false statements, and obstruction of justice were, predictably, wide-ranging. Those who still hope to keep or win the favor of the MAGA base, such as Speaker Kevin McCarthy (R-CA) and GOP presidential candidates such as Nikki Haley and Mike Pence, blasted the indictment as a political move by the Biden administration against a top opponent from the other party.

Then there was Senate GOP leadership—namely, Minority Leader Mitch McConnell R-KY) and his second-in-command John Thune (R-SD)—who have stayed mum on the matter. Meanwhile, two GOP senators who had voted to convict Trump in the second impeachment trial, to wit Mit Romney (R-UT) and Lisa Murkowski (R-AK), came out with statements in support of the process and emphasized the grave nature of the allegations.

Trump’s criminality is likely to become a test for the GOP that will further strain the party, adding to the already electorally toxic issues of election denialism and extreme abortion bans. At present, there does not appear to be any act, criminal charge or even jury conviction that can dislodge the MAGA faithful from Trump, meaning he will almost certainly receive the GOP nomination for president as an multiply-indicted, twice impeached candidate. It is hard to see how that plays to the Republicans’ favor among crucial swing voters in the battleground states’ suburbs.

The “Presidential Records Act” noise

If you have any Fox-viewing MAGA folks in your family or broader network, you may have heard them claim that the “Presidential Records Act (PRA)” is a full defense to what Trump has done. The argument is that Trump was permitted, just as Bill Clinton was, to designate what among his items were personal records and to take them with him, debating with the National Archives later as to who was entitled to their possession. In Clinton’s case, he kept in his sock drawer some audio recordings of conversations he had with historian Taylor Branch, made sometime during his presidency. The argument goes, even though Top Secret, national defense information was found in Trump’s office drawers, this is no different than Clinton’s sock drawer because Clinton didn’t turn them over to NARA either.

A group called Judicial Watch sued Clinton for those tapes, but a federal court held that the tapes were “personal records” because they were specified in the PRA under “diaries, journals or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for ... Government business.” The judge noted, “[T]he classification depends not upon what the tapes contain, but what the President prepared them for and what he did with them.” And there was no evidence that the materials were circulated to others “or that they were used ... in the course of transacting official business.”

As legal analyst and columnist Lisa Rubin observed, that’s a far cry from the Top Secret and national intelligence documents that were found in Trump’s office and residence, which of course were official business and which he had no right to take with him or claim in any way as “personal.” The head of Judicial Watch, Tom Fitton, somehow drew a very different conclusion from the case that his group had filed. He managed to convince Trump that any White House materials Trump retained, no matter what the classification markings or how they were used, could be designated as “personal.” Fitton, by the way, is not a lawyer, and he has been hauled in before Smith’s grand jury to testify. Trump apparently listened to Fitton and refused the counsel of others, including actual attorneys, on this question.

The quick answer to the PRA argument is that none of the 31 top secret, national defense documents at issue can be in any conceivable way be considered “personal” to the ex-president. It’s an absurd argument out the gate, but that hasn’t stopped Fox and other right-wing outlets from spewing it for their audiences to regurgitate, without really understanding what the PRA or things like the Espionage Act are about.

Luckily, that shouldn’t get anywhere inside a courtroom, and if Judge Cannon tries to allow the argument, she will face an immediate, mid-case (known as “interlocutory”) appeal, which she likely will lose.

It can be somewhat exhausting to bat down all the bizarre and unsupported theories floating out there, including the oft-repeated claim that Biden took 1,850 boxes with him (he did not) or that some classified documents inadvertently wound up in Hillary Clinton’s, Joe Biden’s and Mike Pence’s possession and this somehow this means Trump is being treated differently. None of those people knowingly retained the documents, and they cooperated on the return of the documents right away. That’s why neither Clinton nor Pence was charged, and likely why Biden will not be either.

I like to think of it this way: If you left a grocery store without realizing you had a case of Diet Coke unpaid for on the bottom of your cart, you probably wouldn’t be charged with shoplifting if you apologized for the oversight and paid for it right away. It was an innocent, understandable, and common mistake. But if you took that Diet Coke home, along with bags of candy and other items you’d stuffed into your adult diapers, then refused to return them after the store asked for it back, that’s an entirely different matter.

I hope this helps clarify some the bigger questions and issues as we head into a historic week of legal accountability!

Have a great Sunday—

Jay