Tag Archives: Trump trials

Trump is Guilty

June 3, 2024 – 8:53 am

Twelve ordinary Americans reviewed documents, listened to witnesses, and concluded beyond a reasonable doubt that Trump is guilty of 34 felonies. His defenders almost entirely avoid disputing the facts of the case, but argue instead that he should get away with those crimes.

Among the four indictments of Donald Trump, the Manhattan case brought by District Attorney Alan Bragg was supposed to be the weakest. [1] Up to this point, though, the three “stronger” indictments have all been sidelined by the partisan Republican majority on the Supreme Court, accusations against the prosecutor in Georgia, and the tactics of a trial judge Trump appointed himself, despite her lack of qualifications. None of the hold-ups in these trials points to any weakness in the evidence against him.

An innocent man running for office should want to clear his name before the election, but Trump has used every device at hand to delay his trials until after the election (when, if he wins, he will gain new powers to obstruct justice). But Trump lacked any leverage for delaying the Manhattan trial: Because it’s a state trial, the Supreme Court had no grounds to stop it; because New York is a blue state, no state officials got in the way; and the judge overseeing the case was not indebted to Trump.

So the trial was held. It was a fair trial. Trump had been indicted not by President Biden or the Department of Justice, but by a grand jury of New York citizens. He exercised a defendant’s usual right to participate in selecting the trial jury. His lawyers were allowed to cross-examine the witnesses against him, to introduce relevant evidence in his defense, to file motions, to object to prosecution questions and witness statements, to call witnesses of their own, and to give a summation to the jury. The judge ruled on those motions and objections, sometimes favoring the prosecution and sometimes favoring the defense. Trump himself had the right to testify, but chose not to. The jury was instructed that they should acquit if they found any reasonable doubt about his guilt.

In short, Trump received every consideration the American justice system grants to defendants. In certain ways, he was treated much better than most other criminal defendants: Just about anyone else would have been jailed after 11 violations of the judge’s orders, but Trump was not.

Outside the courtroom, the world frequently bent under the gravity of his political power. The chairs of three House committee tried to intimidate his prosecutor (despite Congress having no oversight role in regard to state prosecutors), and at least one is still trying. Members of Congress, all the way up to the Speaker himself, have come to New York to repeat Trump’s accusations, as a way of circumventing the judge’s gag order.

The jury found Trump guilty. This means that (after considering all the evidence) they were convinced beyond a reasonable doubt that the following facts are true: Trump had sex with a porn star, had his fixer buy her silence to keep voters in the 2016 election from finding out, reimbursed his fixer, and cooked the books of the Trump Organization to hide those payments from election regulators.

Those are no longer mere accusations or “alleged” facts. They have been established in a court of law.

If nothing else results from this conviction (see the discussion of jail time below), it should call attention to the seriousness of the shenanigans delaying the other trials. [2] The charges Trump faces are quite real, and the evidence against him is convincing. In each case, the public interest demands a trial.

The response. Rational people might begin to have second thoughts about supporting a candidate convicted of felonies, but that is not how the Republican Party works these days. With very rare exceptions, Republicans doubled down on their Trump support, choosing instead to attack the American justice system.

[T]he entire American political and legal system is controlled by Biden and Democrats: a banana republic, not a democracy worthy of its name. A range of leading Republicans — from House Majority Steve Scalise to Texas Gov. Greg Abbott to rising Senate stars Josh Hawley and J.D. Vance — have all said basically the same thing.

At this point, you might be wondering: Is any of this surprising? Trump always claims he’s the victim of a conspiracy, and Republicans always end up backing whatever Trump says.

But that’s precisely the problem. The current Republican party is so hostile to the foundations of the American political system that they can be counted on to attack the possibility of a fair Trump trial. Either Trump should be able to do whatever he wants with no accountability, or it’s proof that the entire edifice of American law and politics is rotten.

Looking forward, Speaker Johnson called on the Supreme Court to intervene, opining that justices that he “knows personally” were upset by the trial’s outcome, and would want to “set this straight”.

What exactly needs to be “set straight” is almost never spelled out. I have heard and read a lot of outrage from the MAGA cult, but few of them care to argue the facts of the case. They just think Trump should get away with it. They attack the judge, the jury, the prosecutor, and the Biden administration (which played no apparent role in this trial). They argue that Trump should never have been prosecuted (which is a strange thing to argue after the jury returns a guilty verdict [3]), or that an appeals court should overturn the verdict on some technical grounds.

But they don’t argue that Trump didn’t do exactly what the indictment says he did.

The most troubling response to the verdict are the threats of violence. So far, the jurors have remained anonymous, but Trump supporters online are doing their best to deduce who the jurors might have been. Both Judge Merchan and District Attorney Alan Bragg will have to watch their backs for years to come.

Of course, Trump could make a magnanimous public statement urging his followers not to harm the jurors and other people involved in the case. But don’t be silly. MAGA is a violent movement, and Trump likes it that way.

Will he go to jail? No time soon, and almost certainly not before the election (unless Judge Merchan gives him a few days of jail time for contempt of court).

Trump will be sentenced on July 11, and all options are open. Felony falsification of business records is a Class E felony in New York, the lowest category. The maximum sentence is four years. Theoretically, he could get four years for each of the 34 convictions, but since the offenses are so similar it seems likely he would serve the sentences concurrently.

Experts disagree about whether jail is a likely sentence at all. The majority of first-time Class E felons aren’t sentenced to jail, but some are. In his favor is that this is his first conviction and he is 77 years old. Working against him is the seriousness of the conspiracy (it may have decided the 2016 election), his complete lack of remorse, his repeated violations of the judge’s orders, his threats of revenge, and his history of civil fraud judgments. It’s not clear to me whether the judge can take into account his other felony indictments.

I can only laugh when Trump defenders say that he is unlikely to re-offend. Trump will almost certainly re-offend if he is not in jail. And Jay Kuo makes a good point:

If you think famous, wealthy people who are first-time offenders cannot be sentenced to prison for covering up a crime, Martha Stewart would like a word.

I’m betting that some form of incarceration will be part of the sentence, maybe tailored for his convenience, like weekends in jail or house arrest. Almost as humiliating would be community service, which in New York typically means wearing an orange jumpsuit and picking up litter in a park or near a highway.

Whatever Trump’s sentence, it will almost certainly be suspended pending his appeal, which probably won’t be decided until after the election. If he wins the election, he probably can’t be imprisoned until he leaves office, which is yet another motive for him never to leave office (which I already don’t expect him to do voluntarily).

If he loses the election, on the other hand, his other trials will eventually start, and I predict he will be convicted of some other felony before this felony can be wiped off his record. After all, those are the “stronger” cases.

People too young to remember President Nixon’s Watergate scandal might not recognize the cartoon at the top of this post, but it was iconic in its day. It came from Gary Trudeau’s Doonesbury comic, which ran daily in most newspapers. The full strip is here, along with some commentary. In 2017, Trudeau updated the comic in response to the Trump/Russia scandal (which remains unresolved).

Trudeau’s latest comment on Trump is here.

[1] However, I did tell you back in April that “The Manhattan case against Trump is stronger than I expected“.

From a evidentiary point of view, the Mar-a-Lago documents indictment is probably the strongest. After his term ended, Trump had no right to possess classified documents. When the government asked for him to return the documents he had taken, he said he didn’t have them. Then the FBI searched Mar-a-Lago and found them. There’s no innocent explanation for that set of facts.

That case also involves various things Trump did to try to obstruct the investigation, but the core of the charge is the simple description in the previous paragraph. A jury will have no trouble understanding it, if the Trump-appointed judge ever allows a trial to happen.

[2] It should particularly call attention to the delaying tactics of this corrupt Supreme Court. Both Clarence Thomas and Sam Alito are compromised, and according to the rules governing any other federal court, should recuse themselves from any January 6 related cases. But they have not.

The public especially deserves to know what role these compromised judges have played in the Court’s decision to hear Trump’s absurd immunity claim, which has been convincingly rejected at all lower levels. If their votes were decisive in the Court’s decision to take the case (thereby delaying Trump’s federal trials by many months, probably past the election) that’s a grave and highly consequential injustice.

[3] Usually, the sign that a case shouldn’t have been brought to trial is that the jury doesn’t find the prosecution’s case convincing.

For example, when Bill Barr was Trump’s attorney general, he appointed John Durham as special prosecutor, and charged him with proving Trump’s conspiracy theory about the nefarious origins of the Mueller investigation. Trump claimed Durham would uncover “the crime of the century” and “treason at the highest level”.

Two jury trials came out of this effort, both fairly minor indictments of fairly minor figures: Michael Sussman and Igor Danchenko were charged with lying to the FBI. Both were unanimously acquitted by juries that only needed a day or two to reach agreement. The supposed authors of the conspiracy — Hillary Clinton, Barack Obama, or somebody (I could never figure it out exactly) — were never charged with anything.

That’s what it looks like when a case is undertaken for purely political purposes by a weaponized Justice Department and charges should never have been brought.

By weeklysift | Posted in Articles | Comments (11)

The Manhattan case against Trump is stronger than I expected

April 29, 2024 – 9:11 am

I had doubts about this indictment. But they’re being answered.

The New York state trial of Donald Trump for 34 felony counts of falsifying business records has now completed its first full week of testimony. There’s still a lot to come, but already the case appears much stronger than I had expected.

Before the trial started, I (and a lot of other people) thought prosecutors faced two big potential problems:

  • Their case depends on the jury believing Michael Cohen, who is a convicted perjurer.
  • Falsifying business records is only a felony if the false records were intended to support or cover up some other crime. Establishing that other crime might be difficult.

Well, I shouldn’t have worried. By the time Cohen takes the stand, he’ll just be coloring in a picture that has already been outlined by other evidence. Documents and more trustworthy witnesses will establish that meetings were held, topics were discussed, agreements were made, and money was paid. Very little of the case relies on believing things purely on Cohen’s say-so.

As for the other crime, at least one is already well on its way to being established. National Enquirer publisher David Pecker has told the jury that the catch-and-kill scheme that kept several bad-for-Trump stories out of publication was intended to influence the 2016 election, and that he knew at the time their agreement violated campaign finance laws.

Simultaneously, the defense looks weak. Trump’s apparent strategy is to challenge the prosecution’s points piecemeal, but his lawyers are offering no alternate narrative that pulls everything together. So it’s already easy to picture what will happen when the jury deliberates: Some juror will repeat the defense’s challenge to some detail in the prosecution’s case, and another juror will respond, “Maybe. But then why did this other thing happen?” If there was no agreement with Trump, why did The National Enquirer suppress stories that would have sold a lot of papers? If Trump didn’t order it, why did Michael Cohen borrow money to pay Stormy Daniels? (And what about that document where Allen Weisselberg added up all the numbers to arrive at Cohen’s reimbursement?) If there was no crime, then what did Cohen go to jail for? And so on.

To the extent that it tells a story at all, the defense is claiming that Trump did nothing wrong, while all around him other people were doing odd things they had no reason to do. Believing that is not impossible, I suppose, but it requires something well beyond reasonable doubt of the evidence presented. [1]

This scattershot approach is a tactic Trump uses in all his scandals: He never settles on a single explanation of what happened, leaving himself free to spin different stories at different times to different audiences: I didn’t do it. I did it, but it’s not illegal. Maybe it’s not legal, but everybody does it and gets away with it, so singling me out is political persecution. Biden, Hillary, Obama, or somebody else I don’t like has done worse. In fact, it was the right thing to do and I’m proud I did it; nobody else would have had the guts to do it.

That works in a political world of short news cycles and shifting attention spans, but in court it fails. (We’ve already seen it fail in his civil trials.) The jury is required to sit there for weeks and keep paying attention, so distracting them for a moment or two doesn’t get him off the hook. They get to see all the evidence, and they want to form a complete picture of what happened. So if one side can paint them a complete picture and the other side can’t, they notice.

[1] One thing I remember from my own jury experience was the judge’s explanation of “reasonable doubt”, which is literally doubt that has some rationality behind it. Just being able to imagine that the defendant might not be guilty is not good enough. That’s why evil-twin theories don’t usually fly in court.

By weeklysift | Posted in Articles | Comments (6)

Defending American Values: Trial by Jury

April 22, 2024 – 8:52 am

If we can’t trust ordinary people to be jurors, then we’ve already given up on Democracy.

The central mission of a rising authoritarian movement is to destroy public trust in any institution that can stand in its way, and in particular, in any source of truth that is independent of the movement and its Leader. And so over the last few years the MAGA movement has told us that:

  • We can’t trust our public health institutions to guide us through a pandemic.
  • We can’t trust what climate scientists tell us about global warming.
  • We can’t trust the FDA’s opinion on the safety of abortion drugs.
  • We can’t trust historians to recount the story of American racism, or librarians to make sound decisions about books that discuss either race or sex.
  • We can’t trust women who tell us they were sexually assaulted, or any women at all to make decisions about their own pregnancies.
  • We can’t trust the news media to report simple facts (like the size of Trump’s inaugural crowd).
  • We can’t trust our secretaries of state and local election officials to count votes.
  • We can’t trust the FBI and the Department of Justice when they fail to find evidence of voting fraud.
  • We can’t trust our intelligence agencies when they tell us about Trump’s friend Vladimir Putin.
  • We can’t trust a judge of Mexican ancestry to oversee the Trump University fraud lawsuit, or any judges appointed by Democrats to handle Trump’s other trials.

And so on. Because in an authoritarian system, the Leader defines Truth. Only he can be trusted.

In each of these situations, we are presented with a Manichean choice: There is MAGA and there is the Deep State. There are Trump followers and Trump haters. If you are not one, you are the other — and that’s all that matters. No one can be trusted to simply do their job in a fact-based, objective, or professional manner.

This week we saw another example of that authoritarian trust-destroying mission: We can’t trust juries. Specifically, we can’t trust a jury of New Yorkers — or any jury convened in a blue state — to stand in judgment over the Great Leader himself. Most New Yorkers didn’t vote for Trump, and so by definition they are Trump haters who are incapable of listening to evidence and forming objective opinions about his guilt or innocence.

Already in August, Kellyanne (alternative facts) Conway was telling Fox News that Trump couldn’t get a fair trial in three of the four venues where he has been indicted — “the most liberal county in Georgia, D.C., New York City, all these places that voted against him”. Apparently only in south Florida, under the supervision of a judge he appointed himself, could Trump possibly get a fair shake. Because a courtroom is just another political arena where all that matters is the love or hate you feel for Donald Trump.

It’s important to push back on this insidious belief, because it strikes at the heart of any notion of Democracy. If ordinary people can’t be trusted, then they can’t be allowed to govern themselves. If they are too unreliable to be jurors, why should these same untrustworthy people be allowed to vote or protest or express themselves in any way at all? If ordinary people can only be trusted when they belong to the Leader’s party, then why let any other party compete for power?

There’s a reason that trial by jury goes back to the Magna Carta, and was guaranteed by the Founders in the Sixth Amendment. A belief in juries is fundamental to the whole project of Democracy.

Encouraging corruption. Once you convince yourself that an institution is inherently corrupt, the obvious next step is to make that corruption work for you rather than against you. So conservative talk-radio host Clay Travis made this plea to his listeners:

If you’re a Trump supporter in New York City who is a part of the jury pool, do everything you can to get seated on the jury and then refuse to convict as a matter of principle, dooming the case via hung jury. It’s the most patriotic thing you could possibly do.

In other words: Don’t answer the judge’s questions honestly, and once you get on the jury, don’t do your job with integrity. Don’t listen to the evidence and form an objective opinion. Refuse to convict “as a matter of principle”.

What principle would that be? That the Leader can do no wrong? That he is above the Law?

Rep. Byron Donalds (who a few months ago was in the running to be Speaker of the House) similarly denied that there was any need for jurors to listen to the prosecution’s case:

My plea is to the people of Manhattan that may sit on this trial: Please do the right thing for this country. Everybody’s allowed to have their political viewpoints, but the law is supposed to be blind and no respecter of persons. This is a trash case; there is no crime here; and if there is any potential for a verdict, they should vote not guilty.

But of course, there is a crime: falsification of business records, which is illegal in New York. Donalds knows this, just as he knows that Michael Cohen has already served time for his role in this illegal plot. If he truly believed Trump to be innocent, he could simply urge jurors to do their jobs with integrity, and express faith in the outcome. But he didn’t, did he?

Fox News has been doing its best to out the jurors, so that they can be vulnerable to intimidation and coercion from the violent MAGA faithful. In one case they have already succeeded: A juror who was seated on Tuesday came back Thursday asking to be excused because people had already begun to guess her identity. Fox host Jesse Watters had picked her out (by number) as a juror who might be difficult for Trump. (The evidence against her? She had blasphemed by saying: “No one is above the law.”) He then slandered (and Trump retweeted him) the jurors in general.

They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.

In reality, Trump’s lawyers had caught people with liberal views saying that they could be objective. There is no reason to believe they can’t, beyond the dogma that all liberals are irrational Trump-haters.

In the face of this attack on a core democratic value, it’s important to reaffirm our faith in it, as Vox’ Abdallah Fayyad does:

Regardless of what the former president says, the demographics of New York or Washington, DC, won’t determine whether or not he will receive a fair trial. That will depend on how the prosecution makes its case, and whether the jurors will take their jobs seriously and evaluate the case on its merits rather than on their views of the defendant — something that juries are more than capable of doing.

That’s why Trump’s disingenuous attacks on the jury are dangerous: not because he’s questioning their potential fairness (juries can indeed be unfair, and defendants have the right to point that out), but because he’s broadly deeming some Americans — that is, anyone who doesn’t support him — as inherently illegitimate jurors.

If you believe in Democracy, the legitimacy of jurors doesn’t depend on who they voted for in 2020 or plan to vote for later this year or what they think of Donald Trump. Trials are not popularity contests. You can believe Trump is the scum of the Earth, and still evaluate fairly whether the prosecution has proved its case against him. As many a defense lawyer points out in summation: “You don’t have to like my client to find him not guilty.”

Could I be a juror? As I watched (from a distance) the Manhattan court’s effort to form a Trump jury, I did what I think a lot of people did: wondered how I would answer the questions prospective jurors were asked. In particular: Could I be objective? Could I listen to the evidence and arguments from both sides and reach a fair verdict?

I decided that I could. Now, as anyone who reads this blog or follows me on social media knows, I have a very strong negative opinion of Donald Trump. I have openly said that I think he’s guilty, not just in this case but in the other three cases as well. Had I been in that courtroom, the defense would undoubtedly have used one of their peremptory challenges to make sure I never came anywhere near the jury box. So how could I imagine being a fair juror?

Here’s how: I have a clear sense of the duties of a juror takes on. And the principle of trial by jury is more important to me than the fate of one man. Demagogues and grifters like Trump will come and go in American history, but trial by jury is something that I hope will endure through the centuries. I wouldn’t want to be part of screwing it up.

In particular, I believe that everyone accused of a crime deserves a fair trial, and that the prosecution has a responsibility to prove its case beyond a reasonable doubt. I also believe in the rules of evidence. As a juror, it wouldn’t matter to me what I had read in the news media or what I thought I remembered from the internet: The real evidence, the trustworthy evidence, isn’t what I heard on Fox News or MSNBC, it’s the evidence that shows up in court. And so when the trial ground to its conclusion, I would ask myself: Given what I’ve heard in court, has the prosecution proved its case? If it hadn’t, I would vote to acquit.

Now, I sincerely doubt that anything that might happen in this trial will change my opinion of Trump. At the end of the trial, I’m sure I will still believe he’s a fundamentally dishonest man who cares for no one but himself. I may even still believe that he’s guilty of the charges against him.

But if I’m a juror, that doesn’t matter. The question isn’t “Do you believe he’s guilty?” but “Has the prosecution proved he’s guilty.” If they haven’t, I could vote to acquit — even as I continued to hope that the prosecutors in one of his other cases would have more success.

Can this jury be fair? I have great faith that it can.

Part of my faith comes from having served on a jury several years ago in an emotionally fraught federal drug case. The defendant came from a household that in many ways exemplified the American dream: He and his wife were Hispanics who had worked their way into the middle class and were raising several children, all younger than 10. He worked in a local factory, and she was a nurse. The real bad guy here seemed to be the defendant’s brother, a career drug dealer that the government had been failing to make a case against. He sold drugs out of the defendant’s basement, and when the undercover cop showed up wanting to buy, he was too smart to sell. But the defendant trusted the cop, so the brother in essence said, “If you trust him, you sell to him.” The defendant did, and that was how he came to be on trial.

After the evidence was presented, we deliberated for an afternoon and most of the next morning. We were all over the map, and I had a very difficult night while I shouldered my responsibility. All of us sympathized with the wife and children. Several jurors who had been leaning not-guilty in the afternoon changed their minds overnight: By morning they were angry at the defendant for letting his brother sell drugs out of the house where his kids lived.

In the end, we answered the question we were given: Had the government proved that he sold the drugs? It had, and we convicted him. (We also had a meeting with the judge where we pleaded for him to sentence mercifully. I never checked whether he did.)

I learned a few things from this experience: First, the ritual of the court is powerful magic. You may come in with all sorts of impressions and opinions. But you very quickly learn to appreciate the awesomeness of the power you have been delegated and the responsibility it puts on you. (Spider-Man is right: With great power comes great responsibility.)

Second, no matter how different the individuals are, some kind of group loyalty develops. Not reaching a verdict feels like failure, and the jury doesn’t want to fail. We had each given a week of our time to this trial, and we didn’t want to believe our time had been wasted.

This is why I have faith in the Trump jury. Yes I can imagine all sorts of scenarios where somebody follows Clay Travis’ instructions: lies to the court so that they can get on the jury and rig the outcome. But that’s a harder mission to pull off than you might think.

My jury only met for a week. This one will probably sit for a month or more. During that time, they’ll share a lot of cups of coffee and more than a few lunches. They’re not supposed to discuss the trial until deliberation, but they’ll undoubtedly find other things to talk about: kids, jobs, the weather, TV shows. They’re going to see each other as people and develop a sense of common purpose.

Imagine spending that whole month with people while animated by a single malevolent thought: “I’m going to make sure you all fail. Because of me, this month we’ve all sacrificed will come to nothing.”

That would be a hard mission to carry out.

Even if you came onto the jury with a fairly strong belief in Trump, I think the ritual of the court and the camaraderie of the jury might well capture you. Every day you will look at Trump and realize that he is (as one prospective juror put it) “just a guy”, and not the great savior you imagined him to be. You will see him glower and bluster and doze off and treat you and your fellow jurors and the judge with disrespect. You will hear the prosecution witnesses assemble the case against him step by step. (You will have heard that the case is all politics, but in fact no one is talking politics. They’re presenting evidence.) When the defense takes its turn, you will hope for some grand revelation that shatters the prosecution’s case. And you will be disappointed.

During deliberation, you will have no real argument to make against your fellow jurors who want to convict. Over the month, you will have learned that they are not the frothing Trump-haters Fox News led you to expect. They’re just ordinary people trying to do their civic duty. Are you then going to look them all in the eye and admit that out of sheer stubbornness, you are going to make them fail?

Maybe. But I doubt it.

By weeklysift | Posted in Articles | Also tagged | Comments (12)

Is Donald Trump Still Rich?

March 25, 2024 – 8:55 am

Today we’ll find out whether Trump can raise half a billion dollars.

Today is the deadline for Trump paying an appeal bond that would put his $464 million civil fraud judgment on hold while his appeal plays out. All week news outlets have been speculating about what might happen.

Trump’s lawyers have claimed that posting the bond is “a practical impossibility” because they’ve been turned down by 30 bonding companies. Trump himself then contradicted his lawyers by claiming on Truth Social that he does have the money (more about that below), but that the judgment was “rigged and corrupt”, as if saying that absolves him from paying what he owes. All Trump spokespeople claim that he’s worth far more than the bond, but that he’s having trouble raising the money because his assets are mostly in illiquid real estate that bonding companies don’t want to take as collateral.

That explanation doesn’t make a lot of sense, for a number of reasons. First, while bonding companies may not like to hold real estate, banks make real-estate loans all the time. So if he’s really worth the money, he should be able to get a bank loan that he can either use to pay the money himself, or to show to a bonding company as evidence that he can pay it.

Trump’s lawyers also cited the time it would take to raise this much money. They were writing a week before the bond was due, which does sound like a tight timeline. But NY Attorney General James filed the lawsuit almost a year and a half ago. Judge Engoron issued a summary judgment against Trump in September, and the recent trial was just to determine the penalty.

So Trump has had plenty of time to make a what-if-I-lose plan. If he didn’t, that isn’t anybody else’s problem now.

I only see two explanations that make sense:

  • Trump can raise the money, and his lawyers were lying to the court. Maybe this was a negotiating tactic to pressure the appeals court to lower the bond. Or maybe he wanted an impending crisis to fund-raise with. Or maybe he actually wants Tish James to start seizing his properties, because that would underline his claims to the voters about how persecuted he is.
  • Trump can’t raise the money, because he’s not worth that much. Everyone agrees that the assets of the Trump Organization are worth considerably more than what the court demands. But we don’t know how much he has already borrowed against those properties, so there may not be much equity left. The Trump Organization claims its properties are “among the most valuable and prized office towers anywhere in the world“, but the value of such buildings has plummeted post-Covid. Maybe he can’t get a half-billion-dollar loan on them because the numbers just don’t add up.

One possible deus ex machina in this situation is that Truth Social is about to go public. In theory, Trump’s shares in the company would be worth billions — possibly more than he has ever actually been worth. Currently, he’s not supposed to sell the shares or use them as collateral for six months. (That’s a fairly standard IPO lockup provision.) But the board, which Trump controls, could waive the lockup.

As Jay Kuo points out, though, there’s something hinky about this whole situation: Truth Social shouldn’t be worth much at all, and certainly not billions.

Truth Social is not a successful company, at least not yet. It had only about $5 million last year in revenue, and it had lost over $30 million through the third quarter of 2023. Its user base is paltry at just 8.9 million registered users, and it’s not very likely to grow into anything like the next Facebook or Twitter. 

For comparison, X/Twitter has 335 million users and is estimated to be worth a little over $12 billion (after Musk paid over $40 billion for it).

Kuo classifies Truth Social (which will trade under the name Trump Media and the symbol DJT, Trump’s initials) as a “meme stock”, one that has few institutional investors, but is owned by individuals who hype it on social media. Such stocks typically collapse at some point. So the odds are low that Truth Social will be worth billions when Trump’s six-month lockup period runs out.

Truth Social is a speculative investment bubble that will reward those who can cash out at the high and punish those who are left holding the bag at the end. Trump is quite adept at this scam. He once sold NFT Trump “trading cards” to his base that went sky high before sales dropped 99 percent.

Ditto for Trump’s $399 gold sneakers.

In short, Trump Media is “the biggest grift of his life”. We’ll see if he pulls it off.

Trump’s lawyers talk as if nothing has been decided yet, because he can still appeal. But he lost the case. Losing in court actually means something, and courts require appeal bonds so that losers don’t abuse the appeal process just to delay paying.

The thing you have to keep in mind when Trump or his lawyers whine about the hardship of having to sell at “fire sale prices” is that paying your debts is often painful. Most Americans already understand that fact of life, and it shouldn’t change just because your name is Trump.

You have to love this Truth Social post by Trump. (I’ll spare you the all-caps.)

Through hard work, talent, and luck, I currently have almost five hundred million dollars in cash, a substantial amount of which I intended to use in my campaign for president. The often overturned political hack judge on the rigged and corrupt A. G. case, where I have done nothing wrong, knew this, wanted to take it away from me, and that’s where and why he came up with the shocking number which, coupled with his crazy interest demand, is approximately $454,000,000. I did nothing wrong except win an election in 2016 that I wasn’t expected to win, did even better in 2020, and now lead, by a lot, in 2024. This is communism in America!

The remarkable thing about this post is that almost every piece of it is false.

  • He got rich by inheriting hundreds of millions from his Dad, possibly in violation of tax laws. That could be seen as a combination of luck and fraud, but not hard work or talent.
  • Far from using his own money in his campaign, he’s been using campaign cash (mostly from his Save America PAC) to pay his personal legal bills. The idea of getting the RNC to pay his legal bills has also been floated. (See cartoon below.)
  • As for whether Judge Engoron is “frequently overturned”, I’ll have to see some evidence of that. “Political hack”, “rigged”, and “corrupt” are standard Trump insults that he throws at anyone standing in his way.
  • The size of the judgment against Trump is large, but doesn’t come out of thin air: It’s the difference between the interest rate he was offered without needing to make personal guarantees, and the interest rate he actually paid. Since the personal guarantees were backed up with fraudulent statements, the difference constitutes an ill-gotten gain which the state has demanded he disgorge. The total includes no punitive damages or anything else subjective.
  • The “crazy” 9% interest rate he’s being charged is set by law, and would apply to anyone.
  • What he did wrong was submit fraudulent financial statements.
  • Due to the Electoral College, he did unexpectedly win an election in 2016, despite Hillary Clinton getting 2.9 million more votes. And while he did get more votes in 2020 than in 2016, he lost to Joe Biden by seven million votes, which is a strange definition of doing “even better”.
  • He currently leads in some polls but not others, and never by “a lot”. The latest Economist polling average has Biden up by 1%.
  • “Communism” is another meaningless Trump insult. His situation has nothing to do with public ownership of the means of production.

So what are the odds that ” I currently have almost five hundred million dollars in cash” is true?

Trump’s predicament has given Biden a biting joke to tell on the campaign trail.

Just the other day a defeated-looking man came up to me and said, “Mr. President, I have crushing debt, and I’m completely wiped out.” And I had to look at him and say, “Donald, I’m sorry. I can’t help you.”

By weeklysift | Posted in Articles | Also tagged | Comments (4)

We’re all in law school now

September 11, 2023 – 10:16 am

Simply following the news is teaching the public more about law
than most of us ever wanted to know.

Star Wars movies are famous for building up to climaxes with three centers of simultaneous action. The decisive scenes of Return of the Jedi, for example, jump from the battle on the Planet Endor to the raid on the second Death Star to the Luke/Vader/Emperor showdown. Maintaining three centers of narrative action, it seems, optimizes something having to do with human attention: The tension builds as focus shifts from one center to the next, and viewers can keep track of all three without saying “Oh, I forgot about him” or “Where are we now?”

Sadly, though, the Trump trials have now gone well past the Lucas point, and have reached the you-can’t-tell-the-players-without-a-program stage.

This week’s run-down. Currently, four Trump indictments are pending in four different jurisdictions, two state and two federal. In New York and D.C., he is indicted by himself. In Florida he has two indicted co-conspirators, and in Georgia he has 18. The total number of counts is just under a hundred.

Worse than the sheer number of venues, defendants, and charges, the action in each jurisdiction has a way of spreading: This week, for example, the most significant developments in the Fulton County indictment were happening in federal rather than state court, and Fulton County DA Fani Willis was fending off attempted interference from Republicans in Congress. We also found out the names of 30 conspirators Willis decided not to indict, in spite of the recommendations of the special grand jury.

Two of the 19 Fulton County RICO defendants filed for a speedy trial, but neither wanted to share a trial with the other. The judge had good news and bad news for them: Your trial starts October 23, but you’re each stuck sitting next to that other loser.

In addition to the criminal cases, there are civil lawsuits. The NY attorney general’s $250 million fraud lawsuit against the Trump Organization will go to trial on October 2, assuming neither side gets the summary judgment it’s asking for. And Wednesday, E. Jean Carroll won a second defamation decision against Trump: The judge ruled that since the statements in question were so similar to ones a jury already had found defamatory, no trial was needed, other than to establish damages. Trump is already on the hook for $5 million pending appeal, and his mouth is still running.

And lest we forget: There is the open legal question of whether Trump is even eligible to be president again, given the disqualification clause of the 14th Amendment.

Then there are the criminal cases of related defendants: The trials of the January 6 rioters are not quite done yet. Tuesday, Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison for his role in planning the assault on the Capitol. Commenters on the Fox News article about the sentence were incensed: “22 years and he wasn’t even there”. But if you plan a crime and recruit people to carry it out, you don’t have to be there. You could be, say, watching TV at a White House dining table and still be guilty.

And John Eastman may be a Fulton County RICO defendant, but he also had to testify at his disbarment hearing in California this week. He “doesn’t recall” making statements that Vice President Pence’s chief of staff has testified under oath that he made.

Oh, and Peter Navarro — I really had forgotten about him — was found guilty of contempt of Congress. Remember? He blew off subpoenas from the House select committee investigating January 6. (Remember them?) It turns out that ignoring subpoenas can get you into trouble. Who knew? Navarro certainly seemed shocked to discover that “Trump told me to” isn’t a universally recognized defense, particularly if Trump didn’t put those instructions in writing.

Steve Bannon (another blast from the past) was convicted of the same charge last summer and sentenced to four months. But he’s still out pending an appeal that will be heard in October. His fraud trial (for misappropriating money raised to build Trump’s wall) is scheduled for next May.

Got all that?

Federal removal law. The upside of this complexity is that (if you manage to keep paying attention) you’re getting an excellent layman’s education in law. This week’s best lesson was US District Judge Steve Jones’ ruling that denied Mark Meadows motion to move his RICO case from Georgia state court to federal court. His decision didn’t just say no; it gave an very clear explanation of the federal removal statute, what it’s for, and how it functions.

The point of the law is to keep states from interfering with federal officers enforcing federal law. For example, occasionally you’ll hear talk among Second Amendment enthusiasts about how local sheriffs should arrest federal officials who show up trying to enforce federal gun laws. If state courts then heard those cases, local police and judges could work together to effectively screw up federal law enforcement.

So instead, any federal official who gets arrested in the course of carrying out his or her duties can get the case moved to federal court. (That’s what Meadows was trying to do, and what Trump would undoubtedly try to do if Meadows succeeded.) On the other hand, just being a federal official isn’t enough. If, say, an FBI agent gets arrested for robbing a bank, his case is no different from anybody else’s.

If you keep that pair of examples in mind, the law makes perfect sense.

So Meadows had to argue that his case was more like the ATF agent than like the bank robber. In other words, Fani Willis had indicted him for carrying out his duties as White House chief of staff. And that was not a completely crazy argument, because some of the specific actions alleged in the indictment are Meadows arranging phone calls and sitting in on meetings, as any White House chief of staff would do.

But Meadows’ problem, as Jones points out, is that that acts cited in the indictment are not the crimes he’s been charged with. The crime is participating in a conspiracy to change the results of Georgia’s 2020 presidential election. The specific actions cited in the indictment simply illustrate that involvement.

So the relevant question is whether White House chiefs of staff have a legitimate role to play in overseeing how states count their votes and allocate their electors. If so, then Meadows (and Trump) might have been playing that role when, say, they pressured Brad Raffensperger to “find” more votes for Trump. It would then be up to a federal court to decide whether Meadows had been carrying out those duties within the law.

But Jones ruled that Meadow had no legitimate role to play as chief of staff: Running elections is a state matter. And under the Constitution, any federal oversight role belongs to Congress, not the president or his staff.

Jones’ ruling has two important consequences:

  • If removal had been granted, Meadows’ had already filed a motion to dismiss the charges, for basically the same reason: He was simply carrying out his federal duties. That motion is now moot.
  • While the judge explicitly wrote that he was not prejudging the claims of any other defendants (like Trump), the logic of his argument will be hard to overcome: Trump and all of his co-conspirators were meddling in something that was none of the president’s official business. None of them have a good argument for moving to federal court or having the charges dismissed.

Willis v Jordan. I think Jim Jordan was trying to intimidate Fani Willis, but it doesn’t seem to have worked. On August 24, Jordan wrote a letter to Willis under the House Judiciary Committee letterhead, saying:

Congress may probe whether former Presidents are being subjected to politically motivated state investigations and prosecutions due to the policies they advanced as President, and, if so, what legislative remedies may be appropriate.

After mentioning his subcommittee’s subpoena power, he demanded she produce by September 7 (Thursday) documents related to her investigation of former president Trump, and especially any communications with Jack Smith or other federal officials.

On Thursday, Willis responded with none of the requested documents, but a letter of her own.

Your letter makes clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.

She goes on to school Jordan, explaining (with detailed legal references) all the reasons that his demands are unconstitutional: They cross the line between state and federal sovereignty, as well as the line separating legislative and executive functions. They interfere with the administration of criminal justice, and violate the form of executive privilege that protects a prosecutor’s deliberative process.

Given all that, she could in good conscience ignore the arguments Jordan made.

While settled constitutional law clearly permits me to ignore your unjustified and illegal intrusion into an open state criminal prosecution, I will take a moment to voluntarily respond to parts of your letter.

Her main piece of advice is that Jordan learn to “deal with reality”, in particular the reality that Donald Trump is a citizen with no special rights.

Here is another reality you must face: Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia. In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility. Persons’ socioeconomic status, race, gender, sexual orientation, or political prominence does not entitle them to an exemption from that basic standard.

She schools Jordan on how Trump’s rights are properly defended.

[O]bjections to a criminal investigation or prosecution are properly raised—at least in the first instance—at courts with lawful jurisdiction, not through partisan legislative inquiries. The courts in the State of Georgia are fully up to the task of adjudicating the rights of all parties at issue.

Finally, in response to his implicit threats to any federal funding her office receives, she concludes with a series of suggestions for useful work Jordan’s committee might do, such as increasing federal funding for worthwhile purposes like paying witness advocates, processing rape kits, helping at-risk children avoid the criminal justice system, and upgrading state crime labs generally.

The lesson I draw from this exchange is that if you want to mess with Fani Willis, you’d better be a lot sharper than Jim Jordan.

Does the 14th Amendment disqualify Trump? This idea has been rattling around for a few weeks now, and was explained in some detail by J. Michael Luttig and Lawrence Tribe in the August Atlantic. (And in a lot of detail by a law journal article I haven’t read.) But it’s mostly been theoretical until Tuesday, when Citizens for Responsibility and Ethics in Washington (a real organization that’s been around for a while, not something put together for this purpose) filed a lawsuit in Colorado. The suit seeks an injunction forcing the Colorado Secretary of State to leave Trump’s name off the state’s Republican primary ballot, for reasons that would also apply to a general election ballot.

Presumably, this case will work its way up through the Colorado state courts and will eventually be appealed to the Supreme Court, whose ruling would then apply to all states.

Truthfully, I had never paid much attention to the 14th Amendment‘s third section. The first section is one of the most quoted parts of the Constitution: It guarantees citizenship to anyone born in the United States, as well as “due process of law” and “equal protection of the laws”. Courts are constantly arguing about precisely what those phrases mean.

But Section 3? Not so much. Here’s what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Just about everybody’s initial reaction to this is that Trump would have to be convicted of some crime relating to “insurrection or rebellion” before he’d be disqualified from being president again. And since an conviction is unlikely to become final before the 2024 election, Section 3 wouldn’t apply.

But Luttig and Tribe point out that qualifications don’t work that way. No one has a right to be president, so this isn’t a matter of taking Trump’s rights away. So the criminal proof-beyond-reasonable-doubt standard shouldn’t apply.

Instead, it’s up to the individual states to determine how their presidential electors will be chosen and what candidates are qualified to receive their votes. If a secretary of state in a place like Colorado determines that Trump is ineligible to be president because he supported an insurrection, that’s no different than determining that a candidate isn’t 35 years old or hasn’t already served two terms. The question is about the fact of insurrection, not whether or not there’s been a conviction.

Now, Section 3 has never been tested, so no one knows precisely what phrases like “insurrection or rebellion” or “aid and comfort to the enemies” should mean in practice. So somebody’s going to have to hold some evidentiary hearings, and then the courts will have to make some interpretations. Somebody will have to have the last word, and that will probably be the Supreme Court.

Another objection is to say “let the voters decide”. But if that’s how we do things, why are there constitutional qualifications at all? What if the voters want to elect an 18-year-old president? Or give Obama a third term? For constitutional qualifications to mean anything at all, they have to supersede what the voters want.

Whether disqualifying Trump is politically wise is another question entirely. But legally that’s beside the point. It may not always be politically wise to protect an unpopular religion’s freedom to worship, or to enforce many of the other rights our Constitution guarantees. The point of having a constitution is that some principles have to override the politics of the moment.

Personally, I don’t have a dog in this fight. What I’d really like to see is for Trump to be rejected by the voters, either in the primaries or in the general election. If he’s allowed to run, I think that will happen, current polls notwithstanding. But disqualification is a serious question, and our legal system owes the country a serious answer.

By weeklysift | Posted in Articles | Also tagged | Comments (10)

What an innocent Trump should do

September 4, 2023 – 9:47 am

If the charges against him are all political shenanigans engineered by Biden, Trump should seek speedy trials leading to a series of jury acquittals before the election. So why is he doing the exact opposite?

For several years now, Rachel Maddow has been repeating: “Watch what they do, not what they say.” This week Rep. Eric Swalwell invited us to apply that maxim to the particular case of Trump’s indictments:

Weird. You’re telling me the guy who says he is being corruptly prosecuted has no interest in the right to speedily contest the charges?

Trump’s people are saying the charges against him are bogus, that it’s all politics waged by overzealous partisan prosecutors. It’s “election interference” whose purpose is to promote slanders against Trump during the campaign. And it’s all being coordinated behind the scenes by Joe Biden. (Biden, meanwhile, is supposedly senile. So how he manages to stay on top of his sprawling conspiracy to weaponize law enforcement seems like a hole in the plot.)

But if that’s what’s going on, then Trump’s lawyers should be chomping at the bit to get into a courtroom, where they can tell the real story, introduce the “complete” and “irrefutable” evidence that clears Trump, cross-examine the witnesses arrayed against him (who are mostly members of his own party and his own administration — probably including his vice president), and generally poke holes in the prosecutors’ narrative.

After all, we’ve already seen what happens when a politicized prosecution goes to trial: Twice, John Durham brought charges based on his Clinton-conspiracy theory of the Trump/Russia investigation. Both times, juries were not fooled and voted quickly and unanimously for acquittal.

So if all Trump’s indictments are nothing but “weaponization of the justice system“, that’s what he should want: Bring in 12 ordinary Americans who are not part of the vast Biden conspiracy, let them examine all the evidence, and then see what they think. In particular, Trump should want to get as many vindicating verdicts as possible on the record before the election, so that voters could put aside all doubts about his guilt. What’s more, a string of unanimous juries voting quickly for acquittal would expose Biden’s nefarious plotting, and turn the whole issue in Trump’s favor. The momentum from those not-guilty verdicts would probably propel Trump back into the White House.

But if you look at what Trump, his lawyers, and his cultists are doing, they seem scared to death of him facing a jury. His legal strategy revolves around endless delay, especially delay beyond Election Day. It’s as if he believes that maintaining the uncertainty about his guilt is good for him, and resolving the issue would be bad.

He constantly points not to exculpatory evidence, but to his “absolute immunity“, or some other magic get-out-of-jail-free card exempting him from prosecution. He calls on his allies in Congress to harass, defund, or remove from office the prosecutors who have sought his indictment. He tries to intimidate Democrats with threats of reprisal. He retweets supporters’ calls for violence — even “civil war” — if Trump’s trials go forward.

Anything to avoid a jury.

The American way to deal with outrageous charges is to say “See you in court.” But apparently that’s not Trump’s way, at least not in these cases.

You can make your own judgment, but here’s how I resolve the contradiction between what Trump and his people say and what they do: They’re lying. They know that the indictments are legitimate, and that he in fact is guilty. They are desperate to avoid a trial, because if 12 ordinary Americans see the evidence against Trump, they will send him to prison.

By weeklysift | Posted in Articles | Comments (6)

The Evidence Against Trump is Unchallenged

August 7, 2023 – 9:42 am

Trump and his followers have said a lot about his indictments.
But their arguments have little to do with whether he’s guilty.

Since his legal troubles started, Donald Trump, his lawyers, and various conservative commentators who repeat his talking points have commented at length on his various indictments. But very few of those comments present arguments his lawyers could credibly present in court. Instead, most of what you’ll hear on Fox News are arguments intended either to move public opinion, or to intimidate witnesses, prosecutors, judges, and potential jurors.

It seems clear to me that Trump’s defenders want the public focused on anything other than the central questions the indictments raise: Is he guilty? Did he do the things he’s accused of? And if he did commit these crimes, should he be above the law?

Rather than refute the prosecutors’ evidence or offer exculpatory evidence of their own, “defenses” against Trump’s indictments mostly fall into a few other categories.

Threats. A threat is not an argument. Trump has issued many of them.

The most explicit threat came shortly after the magistrate judge warned Trump that “it is a crime to intimidate a witness or retaliate against anyone for providing information about your case to the prosecution, or otherwise obstruct justice”. He then went to Truth Social and posted “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

But this extreme example is far from unique. Trump supporters have threatened prosecutors and FBI agents involved in cases against him. One Trump supporter was killed after attacking an FBI office. Jack Smith (as well as his wife) is a frequent target of Trump’s vitriol. Shortly before his indictment in New York, Trump posted a picture of himself wielding a baseball bat next to a head shot of Manhattan DA Alvin Bragg.

Attacking witnesses. Saturday it was Mike Pence’s turn, leading Jack Smith to seek a protective order controlling what Trump can do with information he learns through discovery.

Joyce Vance explains why that’s a big deal:

Some of the discovery contains personal identifying information for witnesses. If publicly disclosed, that could put them at risk of doxxing, identity theft or other harm. There is also grand jury testimony from witnesses, who might be put at risk if they find themselves suddenly in the public spotlight.

A hearing on the government’s motion is scheduled for this afternoon, but it’s hard to imagine Trump changing his behavior in response to a mere warning. At some point, Judge Tanya Chutkan will have to demonstrate to Trump that he is not in control of this process. Personally, I’d give the stern warning, along with threatening a temporary revocation of his bail should he violate her order.

Very little gets through to Trump, but I think he would find a night in jail very instructive. Putting him in jail for any length of time would give him a political issue, but one night might be an effective warning shot.

Whataboutism. What about Hillary’s emails? What about Hunter Biden’s laptop? What about these pictures of Hunter’s penis? None of this has anything to do with whether Trump is guilty of the charges against him. I doubt Judge Chutkan will allow any such arguments to be made in front of the jury.

It’s all political. Assembling evidence that Trump committed felonies is “election interference“. Indicting him for his crimes makes the US a “banana republic” — because real democracies let candidates and former presidents commit crimes with impunity, apparently. (Actually not.) Again, I doubt the judge will allow the jury to hear any discussion of the political impact of either convicting or acquitting Trump. The trial will focus on whether or not he committed the crimes he’s accused of.

Ad hominem attacks. Jack Smith is “deranged“. Alvin Bragg is “a degenerate sociopath that truely hates the USA.” Fani Willis is “racist“. Countless people are “Trump haters”. Adam Schiff is a “pencil neck” and “sick”. Bill Barr is a “gutless pig“. But if Smith, Bragg, and Willis have the goods on Trump, their personal qualities won’t matter in court.

In addition to these obviously irrelevant arguments, Trump and his people make several arguments that may sound as if they are based in law, but actually aren’t. If Trump’s lawyers make these arguments in motions, judges will dismiss those motions out of hand, and juries will never hear these points.

Such as:

Trump has been indicted for exercising his First Amendment rights. Nope. This claim should not fool a first-year law student, much less a federal judge.

Trump has been indicted for, among other things, fraud. Fraud involves deception, and deception often takes the form of spoken lies. But lies that contribute to fraud are not “free speech”.

For example: If I falsely tell you the painting on my wall is an original Picasso worth millions of dollars, that’s just bragging, which I have every right to do. But if I then sell the painting to you for millions of dollars, that package of speech-plus-action is fraud.

Here’s how that “gutless pig” Bill Barr explains it:

As the indictment says, they’re not attacking his First Amendment right. He can say whatever he wants. He can even lie. He can tell people that the election was stolen when he knew better. But that does not protect you from entering into a conspiracy.

BTW: This next point may be as legally irrelevant as the things Trump is saying, but take a step back and recognize how breathtakingly unique his argument is. I’m sure Trump won’t be the first politician to claim in court that he has a First Amendment right to lie to the American public. But I doubt anyone has ever asserted that right while actively campaigning for office and expecting people to believe the things he’s saying now.

Trump didn’t lie, because he believed what he was saying. This is only relevant if Trump is planning an insanity defense, because he had no rational basis for such beliefs. The law doesn’t recognize absurd beliefs, no matter how fervently you hold them. (“Your honor, I thought pointing a gun at a teller was the normal process for making a withdrawal.”)

Trump’s own attorney general (and that AG’s successor) told him that his stolen-election claims were baseless. So did his White House counsel, the head of his cyber-security agency, the Republican secretaries of contested states like Georgia, and numerous people inside his campaign. On the other side of this question were clowns like Sidney Powell and the My Pillow guy. (As Philip Dick wrote in Valis: “Certainly it constitutes bad news if the people who agree with you are buggier than batshit.”)

This argument also runs into the two-wrongs-don’t-make-a-right principle. Former Assistant US Attorney Randall Eliason explains:

Even if he sincerely believed there was fraud [in Biden’s victory], that wouldn’t mean he could use illegal methods to overturn the result. If I honestly believe a bank had cheated me and owes me money, that doesn’t mean I can rob the bank to get my money back.

Trump just took bad legal advice. Bill Barr rephrased this point more accurately:

He would search for a lawyer who would give him the advice he wanted.

Trump was not simply a victim of what Mike Pence has called “crackpot lawyers“. He was an eager customer of crackpot lawyers.

Again, why didn’t he take more seriously the opinions of his own White House counsel and his own Justice Department? And when it came to the fake-elector scheme, any fool should have seen that it was illegal: Having people sign fake certificates attesting to something false, and then passing those certificates off as real in hopes of gaining something of value (like the presidency) — that’s textbook fraud.

He can’t get a fair trial. We’ve been listening to Trump for eight years now, so certain elements of Trumpspeak are easy to translate: “Fair” means grossly biased in his favor. He’s “treated fairly” only when everyone agrees to let him win.

So this is what the Trump camp has been saying lately about “fairness”:

  • He can’t get a fair trial in D.C., because the jury pool has too many Democrats. (And Black people: I can’t think of any other way to read Marjorie Taylor Greene’s claim that D.C. residents are “not his peers”. Trump is a private citizen. Why would any American not be his peer?) He also can’t get a fair trial in New York.

    What would be a fairer venue? West Virginia, because its three-percent Black population makes it “much more diverse“. Trump won West Virginia in 2020 by 40%. But if Trump wanted to be tried in West Virginia, he should have committed his crimes there.
  • He can’t get a fair trial from this judge, because she was appointed by Obama, ruled against him in a previous case (where he was wrong; her ruling was upheld on appeal), and has given harsh sentences to January 6 rioters. Way back in 2016, he couldn’t possibly get a fair trial in the Trump University fraud case because the judge was Mexican. He has also denounced “Obama judges” in general when they ruled against him.

However, Trump and his lawyers never mention the biggest reason he can’t get a fair trial on these charges: He’s guilty. Juries have an explicable bias against guilty people.

What does this mean? Jack Smith’s latest indictment — like the previous Trump indictments — presents compelling evidence that Trump committed several crimes. In spite of talking and posting constantly about that indictment,Trump has not challenged that evidence in any material way or offered countervailing evidence of his innocence. I draw two obvious conclusions from this:

  • Trump is guilty of the charges against him.
  • He isn’t really trying to win in court. His strategy is to delay his trials until after the election, win the election, and then use his presidential power to obstruct justice.
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