;)
The Conversation -- August 3, 2023
The Washington Post is live-updating Trump's arraignment, not that you and I will be able to see the proceedings. Ken Delanian of NBC News said this morning that the courtroom/secret chamber provides seating for 5 members of the public and 11 journalists. (Scroll on down to Dan Mangan's post to learn who did get seats in the courtroom.) ~~~
~~~ The New York Times' live updates Thursday are here: Glenn Thrush: "... Donald J. Trump pleaded not guilty on Thursday to charges that he conspired to remain in office despite his 2020 election loss, appearing before a judge in a Washington courthouse in the shadow of the Capitol, where his supporters rampaged in an effort to undermine the peaceful transfer of power.... The same courthouse where Mr. Trump appeared before Magistrate Judge Moxila A. Upadhyaya to face the charges brought by the special counsel, Jack Smith, has already hosted a stream of trials for Trump supporters accused of attacking the Capitol on Jan. 6, 2021." ~~~
~~~ Charlie Savage: Prosecutor Thomas "Windom tells the judge that the parties have agreed that, as a condition of release, Trump must not violate federal or state law, must appear in court as directed and must sign an appearance bond. He must not communicate with anyone he knows to be a witness, except through his lawyers or in the presence of his lawyers.... Upadhyaya ... [warns] Trump against violating the conditions of release.... If he fails to comply, a warrant may be issued for his arrest, the conditions of release may be revoked, and he may be held pending trial and receive a longer sentence. He could also be charged with contempt of court." MB: Not mentioned here, but emphasized during MSNBC coverage as a condition of bail, is the requirement that Trump not tamper with a jury member. Andrew Weissmann said this condition along with the condition that the Defendant not commit any crimes were, well, unusual. ~~~
~~~ Brett Samuels of the Hill: "The magistrate judge handling former President Trump's arraignment on charges related to trying to overturn the 2020 election warned him Thursday against bribing or influencing witnesses. U.S. Magistrate Judge Moxila Upadhyaya reminded Trump during the arraignment proceedings that bribing, influencing or retaliating against witnesses is a crime.... The warning to Trump is notable given the House committee that investigated the Jan. 6 attack on the Capitol alleged the former president and his allies tried to contact and influence a witness in that probe. Former Rep. Liz Cheney (R-Wyo.) said at a hearing last summer that Trump tried to call an unnamed witness. She separately described a case of a witness describing receiving phone calls reminding them that Trump was paying attention to who said what." ~~~
~~~ Joy Reid of MSNBC pointed out on air that these instructions -- don't commit a crime, don't tamper with a jury member, don't speak to or mess with witnesses -- sound like instructions a judge would give a mob boss. ~~~
~~~ Dan Mangan of CNBC: "Seven federal judges sat in the D.C. courthouse and watched while Trump was arraigned by their magistrate judge colleague. The group included Chief Judge James Boasberg, and judges Amy Berman Jackson and Randy Moss, who were with four others in the back row of the room. Jackson has presided over a number of criminal cases involving Trump associates. Trump, while president in 2020, blasted her in a tweet as she prepared to sentence his longtime advisor Roger Stone, the notorious Republican self-described trickster...." This is part of a liveblog.
Mikey Is Getting Downright Voluble. Maggie Haberman of the New York Times: "Former Vice President Mike Pence on Wednesday said that ... Donald J. Trump and his advisers had tried to get him 'essentially to overturn the election' and that the American people needed to know it. The remarks, made in an interview with Fox News, are some of Mr. Pence's most pointed to date about what he experienced in the weeks leading up to Jan. 6, 2021, when he presided over the congressional certification of Joseph R. Biden Jr.'s victory.... 'It wasn't just that they asked for a pause. The president specifically asked me and his gaggle of crackpot lawyers asked me to literally reject votes.'" ~~~
~~~ The Context. Robert Farley of FactCheck.org: "In an interview hours after ... Donald Trump was indicted for an alleged conspiracy to overturn the 2020 presidential election, one of his attorneys said that all Trump had ultimately asked his vice president to do was 'simply pause' the Electoral College count at the U.S. Capitol on Jan. 6, 2021. On Fox News the following night, Aug. 2, former Vice President Mike Pence called that claim 'completely false.' Pence said Trump and his 'gaggle of crackpot lawyers' asked him 'to literally reject votes.'" ~~~
~~~ Adam Gabbatt of the Guardian fills out Pence's remark: "The president specifically asked me, and his gaggle of crackpot lawyers asked me, to literally reject votes, which would have resulted in the issue being turned over to the House of Representatives, and literally chaos would have ensued."
We're going to have all of these deep state people, you know, we are going to start slitting throats on day one. -- Ron DeSantis, Sunday ~~~
~~~ First, Kill All the Bureaucrats. Julia Manchester of the Hill: "Florida Gov. Ron DeSantis (R) on Sunday said he would 'start slitting throats on day one' when it comes to taking on the 'deep state.' DeSantis made the remarks at a barbecue campaign event in Rye, N.H., hosted by former Sen. Scott Brown (R-N.H.)." MB: Actually, that's (R-Mass.).
~~~~~~~~~~
American Carnage. He leaves in his wake ruined lives.... The people who went up to Capitol Hill, these individuals, many of the people who served him in government that got sucked into things, he just leaves all this carnage in his wake. -- Bill Barr, in a CNN interview Wednesday
Annals of "Journalism," Ctd. Marie: The top story in the New York Times today, by Michael Schmidt & Maggie Haberman, is a gigantic gift to Donald Trump in the same way Schmidt's stories about Hillary Clinton's emails were a gigantic gift to Donald Trump. The story's headline is "Trump Election Charges Set Up Clash of Lies Versus Free Speech," and most of the story is about Trump's defense claiming he has a First Amendment right to lie. Any reader who gets as far as Paragraph 16 (i.e., almost no one) will learn that "Legal experts were skeptical about the strength of those [First Amendment] claims as a defense." That is, the part of the story that most readers will absorb is that part that makes Trump's fake argument for him. And even way down the story where a "legal expert" gets a say, the story poses him as a toady for the prosecutor, a Duke professor who is himself a former prosecutor. He is cast as the second side of he-said/they-said. It's merely the prosecutors' and expert's opinion that masterminding a bank robbery is not protected speech. And, wow, this pointy-headed, elite prosecutorial "expert" -- in concert with the "deranged, deep-state Biden DOJ" -- seems to oppose your Bill of Rights freeeedoms! I wonder if Trump has Schmidt & Haberman on retainer. ~~~
~~~ MEANWHILE. Devlin Barrett & Josh Dawsey of the Washington Post: "Donald Trump's trial for allegedly conspiring to overturn the results of the 2020 election may hinge on a long-debated aspect of the former president's mind-set: How much, or if, he believes his own false claims.... Central to special counsel Jack Smith's case is the accusation that Trump knew his claims were lies. Evidence of a defendant's intent is often critical to criminal prosecutions, and it may be the most crucial element of Smith's case against Trump." The reporters then cite "a veteran D.C. lawyer" named Robert Kelner who claims Smith "needs to show that all of the false statements Trump made about the election ... were understood by Trump to be false; otherwise, it becomes a case about political speech and First Amendment rights, and that's not where the government wants to be." MB: I'm not sure that's true, either. If, as in my hypothetical example above, you mastermind a bank robbery, nobody cares whether or not you thought robbing the bank was the right thing to do. Your instructions to your criminal crew are not protected speech. ~~~
~~~ Marie: Speaking to Chris Hayes of MSNBC Wednesday, Rick Hasan provided a more closely analogous example: If Trump had told Pence that he would break Pence's legs & murder his children if Pence accepted Wisconsin's slate of Biden electors, that would still have been a crime, even if Trump really, really believed he Trump had won the election in Wisconsin.
Greg Sargent of the Washington Post points to a better Trump defense: Trump's "defense lawyer, John Lauro, went on Fox News and telegraphed his coming strategy.... He declared that Trump merely acted on what he thought was reasonable advice from his lawyer, John Eastman.... This suggests that an 'advice of counsel' argument will be central to Trump's defense.... 'I've always thought this might be his strongest argument,' New York University law professor Ryan Goodman, who has written extensively about the case, told me. Though Goodman believes this 'won't work,' he said it deserves more attention.... Clearly Trump knew Eastman's theory was baloney. But the rub is getting 12 jurors to agree -- not to mention, perhaps, five Supreme Court justices."
Maggie Haberman & others at the New York Times find evidence that Co-conspirator 6 is Trump advisor Boris Epshteyn. unwashed noted the other day that Marcy Wheeler had speculated Co-conspirator 6 was Mike Roman. Wheeler since has updated her post to note the NYT speculation.
At long last, it dawns on Mikey that Donald is not qualified to be president* (also embedded yesterday afternoon): ~~~
Marie: The most surprising thing to me about the latest Trump indictment is how little of it is new. The indictment does fill in some blank spots in the narrative with a few -- significant -- bits of information. Some of these new bits obviously came from Mike Pence. Otherwise, there is little in the indictment that the House January 6 committee and the new media have not covered.
If the Mar-a-Lago indictments incorporated some cliffhangers, the entire coup indictment is cloaked in mystery. It doesn't name the co-conspirators (which is standard DOJ practice for unindicted co-conspirators). It doesn't tell us whether or not these co-conspirators will be indicted. Why, maybe they'll cop a plea and cooperate!
It tells us almost nothing about Mark Meadows, a critical player in the scheme. He is not among the co-conspirators cited, yet the House committee findings as well as public reporting suggest he was deeply involved in the conspiracy to find election fraud and otherwise aided and abetted Trump's crime spree. Meadows gets only glancing mention in the indictment (p. 14), and only that entry on page 14 suggests he might have been a source. But we do know he appeared before the grand jury; we just can't be sure whether he spilled the beans or if his time in the hot seat was a Fifth Amendment lollapalooza.
And what about that January 6 phone call between Trump and Kevin in which Trump tells Kevin the insurrectionists were "more upset about the election than you are"? Jose Pagliery of the Daily Beast points out that the two-person conversation is one of the few incidents cited in the indictment without sourcing? Did My Kevin flip? Was there a recording? Is Meadows the source?
We also know from public reporting that DOJ investigators and the grand jury heard from many witnesses whose input is not reflected in the indictment. A huge blank in the indictment is what-all happened surrounding Trump's January 6 speech at the Ellipse. The indictment does not include any mention of Trump's behavior immediately before and after his notorious remarks, although some remarks themselves are covered in the indictment. Cassidy Hutchinson described this behavior in dramatic detail, and the prosecutors later spoke with first-hand witnesses to Hutchinson's second-hand testimony. Maybe the additional information is superfluous to this particular indictment -- or maybe another indictment or indictments are in the offing. We have no idea. Clearly, the indictment is not an exhaustive review of the evidence prosecutors have against the Conspirator-in-Chief.
MEANWHILE, in Florida. Perry Stein & Josh Dawsey of the Washington Post: "Special counsel Jack Smith has asked Judge Aileen M. Cannon for a hearing to discuss whether the lawyer who represents one of Donald Trump's co-defendants in the classified documents case has too many conflicts to provide adequate legal advice to his client. In a court filing Wednesday, prosecutors said Stanley Woodward -- the lawyer for Trump valet Waltine 'Walt' Nauta -- has represented at least seven other clients whom prosecutors have interviewed about Trump's alleged efforts to keep classified documents in defiance of the government's demand they be returned. Two of Woodward's clients could be called as government witnesses in the trial, the filing said.... Prosecutors said in the filing that they told Woodward earlier that at least one of his clients had incriminating information against Nauta. That client appears to be a Mar-a-Lago IT worker named Yuscil Taveras. The Washington Post has previously reported that Taveras retained a new lawyer July 5 and eventually offered information implicating Trump, Nauta and [Mar-a-Lago property manager Carlos] De Oliveira in the alleged effort to delete surveillance footage." ~~~
~~~ Marie: Isn't it odd how people have to get new, non-Trumpy lawyers to tell the truth? The ostensible question here is whether Nauta can get a fair trial with adequate assistance of counsel, which is his Sixth Amendment right. But what about Taveras -- or the other government witness Woodward represents or represented? While Woodward was his counsel, it's certainly possible that Taveras told the lawyer negative things about himself. Maybe Woodward asked, for instance, "Is there anything about you or in your background that could help prosecutors make you seem like an unreliable witness?" Taveras might then have given Woodward information that could make him seem untruthful. Woodward, armed with that attorney-client privileged information, could still manage to "find" it and use it against Taveras during the trial.
Dinner for Three at the Bedminster Club. Jonathan Swan & Maggie Haberman of the New York Times: "Shortly after learning he was being indicted a third time..., Donald J. Trump had a private dinner with the top leadership at Fox News as they lobbied him to attend the first Republican presidential primary debate this month, three people familiar with the event said. The dinner between Mr. Trump, the Fox News president Jay Wallace and the network's chief executive, Suzanne Scott, was held in a private dining room at Mr. Trump's golf club in Bedminster, N.J...."
Another TuKKKer Conspiracy Theory Bites the Dust. Ryan Reilly of NBC News: ";A Donald Trump fan who participated in the Jan. 6 attack and then was the subject of a conspiracy theory on Tucker Carlson's former Fox News show was arrested by the FBI on Wednesday. Rally Runner, formerly known as Daniel Donnelly Jr., was arrested in St. Louis, Missouri, according to court records. Runner faces five federal charges, including obstructing, impeding, and interfering with law enforcement officers during a civil disorder. Back in 2021, Joseph McBride, a lawyer who was then representing several Jan. 6 defendants, said on Carlson's show that Runner was 'clearly a law enforcement officer' and an 'agent provocateur' who had only dressed up as a Trump fan as part of a scheme to make Trump fans look bad. In fact, Runner was a real Trump fan, as well as a St. Louis Cardinals fanatic who ran around the stadium during home games, thus his name change."
Could Either of These Kids Be President When He Grows Up? Maggie Astor of the New York Times: Ron DeSantis has agreed to California Gov. Gavin Newsom's challenge to a debate on Fox "News" hosted by Sean Hannity. The debate may happen in early November of this year.
Sky Palma of the Raw Story: "Despite going on cable news Monday to tout the 'bombshell' testimony Devon Archer, a longtime business partner of President Joe Biden's son Hunter, would present to his House Oversight Committee, chairman Rep. James Comer (R-KY) skipped the hearing, The Daily Beast reported. Sources speaking to The Beast said Comer was neither present on Capitol Hill for the interview, nor did he participate remotely." MB: Wait! This was the bombshell interview that would get Joe Biden impeached, convicted, sent to prison for life or maybe hanged by the neck from the nearest cherry tree -- and Comer was MIA? Well, I nevah!
If You Thought It Was Winter in South America.... Ian Livingston of the Washington Post: "It's the middle of winter in South America, but that hasn't kept the heat away in Chile, Argentina and surrounding locations. Multiple spells of oddly hot weather have roasted the region in recent weeks. The latest spell early this week has become the most intense, pushing the mercury above 100 degrees Fahrenheit, while setting an August record for Chile.... Weather historian Thierry Goose tweeted that this was an 'extraordinary winter heatwave' for Chile as the temperature climbed to 101.7 degrees (38.7 Celsius), a national record for August."
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Reader Comments (11)
Two things:
So the Pretender plans to throw his lawyers, Eastman and maybe Giuliani in particular, under the bus? Wonder why such a fate never occurred to such smarties? Guess they aren't even smart enough to sup with a long spoon..
And I'm still worrying at the blurry distinction between speech and acts.
Back to Holmes' crowded theater thing. Is not a politically, racially and regionally divided country, heavily armed, with 330 million people and a history of a bloody civil war at least analogous to a crowded theater?
Can't help but think that the difference between speech and action, for all its legal precedent, is harmfully and dangerously naive.
@Ken Winkes: As you point out, freedom of speech is not absolute. And the line can be fuzzy. That's why the Supremes have reset the standard from time to time.
And there are different kinds of speech. Some speakers are more equal than others. For instance, I have a right to tell you, "Cheerios is the best cereal in the whole world." That's an opinion from someone who is not a paid expert. But General Mills may not have the right to tell you, "Cheerios is the best cereal in the whole world," because the FDA can regulate commercial speech -- i.e., assertions made for profit -- (much to the dismay of Clarence Thomas).
All of us are restricted when it comes to making assertions that promote fraud, threaten others, inflame others to cause harm, defame others, disseminate classified information, for instance.
It is well-established that one kind of speech that is unlawful is speech that promotes a conspiracy to commit a crime. It's a crime to sign a document swearing you're a duly-authorized presidential elector -- unless you are. Ergo, it's a crime to urge you to participate in a scheme to organize, create and submit fake electors certificates. The Trump indictment gives you chapter & verse on that.
Mr Delay is asking for a change of venue, prehaps to "possible unbiased West Virginia?"
Just another attempt to postpone the inevitable.
Bill stands up to the bar and lets the zingers fly and oh, why oh why didn't he open his trap earlier when he KNEW the pattern of deceit. Surely he knows he, too, has been thrown under that bus that is now so crowded it would take a tank to move it. This fealty to Fatty never ceases to amaze me but maybe it just brings out the true nature of many who are blatant cowards and care only for their place at the table.
Although according to Miss Margie she and her ilk just need to pray a whole lot to God and then Jesus will turn things around. In the background we hear thunder and see flashes of light––-we may even hear trumpets for Trump ––-off key of course but then when it comes to Green's scenarios we can't expect perfection.
Kinda amusing to watch Barr scurry to repair his reputation.
As P.D. says, too little too late. During his time as the Pretender's AG, he knew he was part and parcel of the carnage he is now desperate to distance himself from.
Another case of the too short spoon.
And thanks, Marie, for the clarifying thoughts on speech and action.
Tho I understand why Smith didn't want to stumble into the free speech thicket, I'm still bothered by what I see as an often questionable if not entirely false distinction the law has made between the two.
Maybe because I have felt I've been trapped in a crowded theater watching a never-ending horror movie for the last six years, I'm too sensitive, but....I can't help it. I do read the news.
It appears that our justice system now accepts paranoid fantasy as an affirmative defense. What the Salem elders did is now OK because they truly believed that the women were witches.
So, the classic lawyer question, "Were you lying then, or are you lying now?" loses its steam when the defendant can reply, "Yes."
Some peanut gallery opinionators (e.g. Rhonda Santis) say that DiJiT should be tried in some venue other than DC, because "unfair." Interesting, in part because back in 1787-9, a big demand for the Bill of Rights was that it needed to specifically guarantee rights to jury trials in the jurisdiction where the offense occurred. The 6th Amendment did that:
"Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, ..."
This was a big deal back then for a few reasons, among them experience with England where defendants could be hauled thousands of miles and wait years in London to stand trial; and a strong desire by states with peculiar institutions ("cough - slave states - cough") to have hometown juries familiar with local mores and customs. Imagine the logistics back then of moving all of the witnesses and defense team from East Squirrel Run, LA, to, say New York, for the trial.
And ... during the Civil Rights trials of the 50s and 60s, involving federal offenses, the Southern states in particular insisted that trial by local jury was inalienable. You could send US Marshalls to Alabama but you couldn't try Bubba in DC.
All arguments are, always, situational, because now many redhatted persons think ol' Donny T. can't get a fair shake from the libruls and deep staters in DC, no how, so let's just forget about all that 6th Amendment stuff and seek an exception of venue.
I would be amazed if the judge even allows a hearing to consider such a motion. The "crime shall have been committed" in DC, and so should be tried there, a town used to handling all sorts of shenanigans and populated by people from everywhere in the U.S.
@Patrick: Yes, I believe one of former President* Whiner's attorney suggested West Virginia would be convenient.
Would this were true!
"All of us are restricted when it comes to making assertions that promote fraud, threaten others, inflame others to cause harm, defame others, disseminate classified information, for instance."
Am watching the arrival of Fatstuff and it is really riveting. (NOT) No one sees a thing and, until it is over, only the 11 journalists have the real-life experience of being in the courtroom, and presumably, they will report out. No photos in federal courthouses, I hear. Will we get drawings? I enjoy the drawings.
I am not interested in all the ways Dumpface can get off by careful lawyering. So, on to eating chocolate and not watching this for now.
@Jeanne: Martinis are much healthier than chocolate and helps one
get through all the BS that goes on daily.