Part I: Trump’s Second Indictment (Over the Cliff Notes) is here.
Part II: Trump has been indicted on federal criminal charges and his case was assigned to Aileen Cannon. Now what? is here.
Welcome to Part III.
* * *
After Trump’s arraignment, he gave a speech in which he said, “Under the Presidential Records Act, which is civil, not criminal, I had every right to have those documents.”
In criminal law, the “I had every right to have those documents” part is known as a confession.
(Remember: Trump was charged with “willful retention” of national security documents and obstructing an investigation. By claiming that he had the right to have the documents, he is acknowledging that he willfully retained them. His stated belief that he was allowed to have them under the Presidential Records Act (PRA) is not a defense because, under the law, it doesn’t matter why he kept them. What matters is that he “willfully” kept them.)
I have said that Trump’s political needs are at odds with his needs as a criminal defendant. As everyone knows, the defendant has the right to remain silent and anything he or she says can be used in court. Trump knows this, but his political needs require that he tell this particular lie.
Trump’s Confession is an example of a Big Lie.
Yale professor Timothy Snyder’s definition of a Big Lie (as opposed to a medium or small lie) comes from Hitler’s Mein Kampf:
“The lie is so big that it reorders the world. Part of telling the big lie is that you immediately say it’s the other side that tells the big lie. . . . The force of a big lie resides in its demand that many other things must be believed or disbelieved.”
As an example of a big lie, Snyder points to Trump’s lie that the 2020 election was stolen from him by means of fraud. To believe that, you have to disregard 61 court rulings that found no fraud. You have to disbelieve experts, government officials (including Republican secretaries of state), and even Trump’s own attorney general (Barr). Anyone who accepts Trump’s lie that the election was stolen views Biden as a corrupt usurper, Biden’s administration as illegitimate, and Trump as the victim and rightful president. Thus the lie “reorders the world.”
Snyder said this:
Trump’s confession has all the markings of another big lie.
On Thursday, Trump posted this on Truth Social:
“PROSECUTORIAL MISCONDUCT AT A LEVEL SELDOM SEEN IN OUR COUNTRY BEFORE!!“
Look at all of the lies Trump managed to pack into those three sentences:
- The Presidential Record Act exonerates him. (It doesn’t. For more on that, click here.)
- The Clinton sock case shows that other people do the same thing. (It doesn’t. For more on that, click here.)
- The prosecution is a witch hunt (It isn’t. To guard against this accusation, the Merrick Garland DOJ announced in March 2021 that the DOJ would follow the facts and the law wherever they lead, and they have been meticulous about this.)
- Joe Biden is “corrupt.” (Trump has been trying for years to make that false accusation stick. His first impeachment was an attempt to strongarm Zelensky into announcing an investigation into the Bidens.)
- The DOJ consists of “radical left, Marxist thugs.” (Don’t make me laugh.)
- The papers were illegally taken from Trump under the Fourth Amendment. (The search was legal.)
- This was election interference. (This lie, among other things, comes from the faulty premise that the Clintons and others have done the same thing.)
Trump packed 7 lies into 3 sentences. Impressive, right?
Essentially, the lie boils down to this: “I had the right to keep those documents and any prosecution of me is a political witch hunt designed to steal the next election.”
Accepting this lie means accepting a world in which top U.S. defense secrets are Trump’s personal property. It means accepting that the PRA means whatever Trump says it means. It means reordering the world so that Trump is the victim and the rightful president. It means rejecting the evidence of our eyes and ears.
It also means ignoring previous court rulings. When the 11th Circuit Court of Appeal ruled against Trump in the Special Master case, the court specifically held that Trump did not have the right to possess these documents.
A reader on Mastodon said this:
It looks like that to me, too. Basically, Trump is saying: You have to pick. You can have the ‘radical left Marxists’ (where the radical left Marxists specifically include DOJ lawyers and that all that rule-of-law business) or you can have him.
In fact, just to make his point, Trump responded to the indictment by vowing that if he is elected, he will appoint a special prosecutor to “go after” his opponents. He is promising to do what he is accusing Biden of doing. The way the big lie works is that he is claiming the moral high ground.
Trump is openly running on a promise to smash the rule of law and to weaponize the DOJ to go after Biden. This will make perfect sense to the people who believe Trump’s lies or who prefer Trump’s style of authoritarianism to the democratic vision for America.
Trump publically confessing his crimes and rejecting the 11th Circuit Court of Appeals ruling may help rein in Judge Aileen Cannon
Last week, I weighed the possible harm that can come from this case being assigned to Aileen Cannon.
Now that Trump has publically confessed to the crimes (and never denied the truth of any of the allegations) it seems to me that this makes it harder for Cannon to go full-on MAGA. Yes, she can still do it, but (in public view) she will have to accept Trump’s big lie and tell the world that she’s cool with him claiming personal ownership of U.S. defense secrets.
It also seems to me that the fact that another criminal case against Trump is pending (and others are expected) may also rein in Aileen Cannon because she will not be the only judge presiding over a Trump criminal trial.
Premise: If Trump wins the 2024 election (by which I mean enough voters vote for him so he wins the electoral college) after inciting an insurrection, claiming that U.S. defense secrets are his personal property, and facing multiple criminal charges in various jurisdictions, all bets are off.
Trump is not the same person in 2023 that he was in 2016. Initially, it took him some time to learn the job. Now he understands the job and, if elected, he will enter the White House fired up to wreak revenge on his enemies. He was thrown out of office in 2020. If he assumes power again, he will start his first day in office making sure that won’t happen again — And he will do so with the claim that he is acting on the mandate of the American voters.
Someone on Mastodon said this:
If I were convicted and was elected president, self-pardon would be top on my list of things to do.
If he is convicted and elected president, he won’t need to pardon himself. He can govern as a convicted felon. Yes, he can be president if he is a convicted felon. [As an aside, self-pardon is unconstitutional, but under this scenario, the Constitution won’t matter.]
Here’s the thing about democracy: At any time, if enough voters want to end democracy, they can do it. All they have to do is elect candidates who promise to smash democracy.
As one of my readers said on Mastodon:
Now, back to Aileen Cannon. Here is one possibility that has been offered:
“Cannon will go full-on MAGA in the hopes that Trump will become president and put her on the Supreme Court.”
In 2020, when people were persuaded that the Supreme Court would rule in Trump’s favor in the election fraud cases (which would keep him in power despite the fact that he lost the election), I made the rather cynical argument that they wouldn’t do that if for no other reason than keeping Trump in power after he lost the election would create an autocrat, and in an autocracy, a Supreme Court has no power.
Why would they want to give up all their power and make themselves vulnerable to the whims of a tyrant?
As a federal judge, Aileen Cannon has had a taste of power, but she derives that power from the fact that we have three branches of government, each with equal power. Should Trump return to the White House, he will do so as an avowed authoritarian, which means he will make sure that all power will be invested in him.
In fact, if she finds a way to help him escape conviction on the document charges, she will have given him the green light to do exactly that.
Judges are supposed to uphold the law, and district court judges are supposed to follow the law as defined by higher courts. She will do this if she wants rule of law in America to survive, and if she wants judges to retain the power they have under the Constitution. (There was an “if” in that sentence.)
Okay, now let’s tackle a few myths.
(I am using the word “myth” in the sense of an “unfounded or false notion.”)
Myth #1: These Indictments (and Trump’s public confession) Will Cause Republican Voters (and possibly the Republican Party) to Reject Trump
Journalists and others are watching the reactions of Republican elected officials to see if any others will follow in the footsteps of Liz Cheney, Mitt Romney, or Adam Kinzinger. They are looking for signs of cracks and fissures in the Republican Party.
When I read stuff like this:
Speaker McCarthy defended Trump storing top secret documents in the bathroom by saying at least “a bathroom door locks.“
Florida Rep. Byron Donalds said, “There are 33 bathrooms at Mar-a-Lago. So don’t act like it’s just in some random bathroom that the guests can go into.”
I hear a version of Cripple Creek in my head:
🎶 If I spring a leak, they mend me,
I don’t have to speak, they defend me,
A grifter’s dream if I ever did see one. 🎶
Surely you’ve noticed by now that Republicans don’t mind if their leaders break laws. Michael Shearer observed in 2018 that conviction can be a badge of honor in “the fight against liberal corruption.” The Republican Party’s behavior since 2018 has confirmed Shearer’s observation.
Examples:
- When Trump was impeached for trying to strongarm Zelinsky into announcing an investigation into the Bidens, the Republican Senators voted to acquit.
- When Trump was impeached for inciting an insurrection, the Republican Senators voted to acquit.
- When the Trump Organization was found guilty of multiple felony counts of fraud and tax crimes, Republicans didn’t care.
- When Trump was indicted in Manhattan for 38 felony counts involving hush money payoffs to influence an election, the Republicans didn’t care.
- When Trump was found liable for sexual assault and defamation and forced to pay $5 million in damages, the Republicans didn’t care.
- When Trump was indicted for willfully retaining government documents and obstructing government attempts to retrieve them–and when he confessed that in fact, he had done this–the Republicans didn’t care.
See a pattern?
I see no signs that this pattern will change. Yes, Republican elected officials may be criticizing him now, but the real question is what happens if he becomes the nominee. Will they close ranks and support him? Or will they advise their supporters to vote for Biden?
If that last possibility has you laughing, this is from How Democracies Die, by Harvard Professors Daniel Ziblatt and Steven Levitsky:
In 2016, Austrian conservatives backed Green Party candidate Alexander Van der Bellen to prevent the election of far-right radical Norbert Hofer. And in 2017, defeated French conservative candidate François Fillon called on his partisans to vote for center-left candidate Emmanuel Macron to keep far-right candidate Marine Le Pen out of power. In both these cases, right-wing politicians endorsed ideological rivals—angering much of the party base but redirecting substantial numbers of their voters to keep extremists out of power. (Kindle version, 67-68.)
This, the authors explain, is the easiest and most efficient way to save democracy from right-wing extremists who promise to smash democratic institutions once in power.
I don’t expect this to happen. I expect the Republican Party to close ranks around Trump, regardless of the outcome of these criminal prosecutions.
This brings me to Myth #2:
Myth #2: Convicting Trump Can Change the Outcome of The Election
I don’t see how.
I mean, come on. Trump publically confessed his crimes. He is not denying the allegations. He is saying he had the right to do as he pleased with U.S. defense secrets.
The public knows what it needs to know. Trials are quirky. Juries sometimes get things wrong. Even good judges sometimes make mistakes.
Did you suddenly decide you liked Kyle Rittenhouse after he was acquitted? No, of course not. Did you change your mind about Martin Luther King, Jr, because he was jailed? No.
This myth that the outcome of criminal cases will change the election comes from Myth #3.
Myth #3: Criminal Prosecutions Can Stop the Rise of Right-Wing Extremism
Hitler spent time in jail before becoming chancellor of Germany. I can rest my case there, but I won’t.
The myth that criminal convictions can stop the rise of right-wing extremists was pushed by lots of well-known commentators on mainstream and social media in 2021 and 2022 who said things like:
- The consequences haven’t been harsh enough and that’s why Republicans keep committing crimes
- Merrick Garland should have filed charges immediately after January 6, 2021. Because he didn’t, right-wing extremism continued to flourish. Garland is therefore responsible for all the damage done to American democracy since 2021.
(I dealt with these on my general FAQ page.)
To take one example out of thousands, Elie Mystal said, “And who’s gonna stop [Republican rule breakers]? Well, the Attorney General is the person who’s supposed to stop them.”
Evidently, Mystal realized that the criminal justice system can’t stop Trump. This week, he published a piece in which he said, “The 37-count indictment against Trump is strong, but if we want him to be held accountable, he must be defeated at the polls.”
I was given an advance review copy of Stuart P. Stevens’s next book, The Conspiracy to End America. Stevens was a Republican political operator for decades before coming to realize that the party he worked for was descending into authoritarianism. He wrote this: “Pain is the best teacher in politics.” He thus concluded that “the only hope for the Republican Party is for it to suffer crushing defeat after crushing defeat so that it is forced to confront its failures.”
The criminal justice system cannot solve a political problem. The rise of right-wing extremism is a political problem and political problems require political solutions. The criminal justice system was not designed to dismantle a political party that chooses to back lawbreakers and authoritarians.
What about the 14th Amendment that says a person cannot hold elected federal office if he led a rebellion against the United States? Isn’t that what Trump did on January 6?
And how will that be enforced if the Republican Party nominates him anyway and if enough people vote for him so that he is legally elected president? Remember the part about how a democracy can be ended at any time if the voters elect officials who promise to smash democratic institutions?
Myth #4: The Republican Party can save itself (and slow its slide into authoritarianism) by nominating someone other than Donald Trump.
Stuart Stevens, in his soon-to-be-published book, also wrote: “It’s possible that Donald Trump will not be the Republican nominee in 2024, but his success in molding the party to his image ensures that anyone who wins will continue down an authoritarian path.” (Page 58.)
Consider that the person running a distant second to Trump is Ron DeSantis. If you think DeSantis would be better than Trump, you haven’t been paying attention.
The Republican Party will continue down the authoritarian path no matter who is the nominee because Republican candidates have come to rely on the votes of white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees.
Therefore, to win a Republican primary (and to draw enough voters in a general election to have any hope of winning) the Republicans will have to cater to white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees.
There are simply not enough traditional conservatives to win a national election in a two-party system. The best explanation was offered by Harvard prof. Daniel Ziblatt, who defined the “conservative dilemma” in this way:
- Traditional conservatives represent the interests of a few wealthy people.
- Their economic policies are unpopular.
The conservative dilemma is how to win elections with policies that are unpopular and will hurt their constituents. After the Civil Rights and women’s rights movement (and the Supreme Court decision in Roe v. Wade) American conservatives solved their dilemma by inviting into their party Christian Nationalists, “social conservatives” (racists and anti-feminists), white supremacists, and gun and militia anti-federal government kooks. They vote for Trump because he speaks directly to them and is one of them.
This worked for a while: Reagan and the Bushes got elected by winking at the white supremacists and vowing to appoint Federalist society judges. They found ways to signal to the crazies that they needed to vote Republican without scaring traditional conservatives.
But there is no more winking at the crazies. The crazies will no longer be sidelined.
Moreover, changing demographics work against white supremacy candidates.
The Republican Party has become the party of white supremacists, Christian nationalists, gun-toting militia kooks, and QAnon devotees (with a few traditional conservatives holding on because they don’t like liberal economic policies.) Nominating someone else will not change this.
Myth #5: Trump’s goal is to delay
This myth springs from Myth #2, that a conviction can help sway the outcome of the election. If you believe that, you want convictions before November 2024 and the idea that Trump can delay trials until after the election will make you very nervous.
Aside: I don’t think it is possible for him to delay all of these criminal trials until after November of 2024, but that is beside the point.
I maintain that Trump will fight the prosecutors every step of the way, not because he wants to “delay” but because he wants to show he is fighting. He wants to put on a good show. He likes to be in the center ring. He wants to feed talking points to his surrogates.
If he rides to his arraignment in a triumphant motorcade, his supporters will cheer because he looks tough and powerful. If he shows an ankle bracelet, his supporters will be enraged that he is the victim of those radical left Marxists who are weaponizing the government to target a political opponent.
The origin of the “it’s all about delay” talking point: While Trump was president, he had a special status under the Constitution and was able to use his power as chief executive officer and head of the executive branch to shut down investigations against him until after the election. He did this, for example, with the Manhattan investigation.
While he was president, he also tried to delay the certification of the election until after January 11, in order to create chaos.
In 2019 and 2020, commentators correctly said, “His goal is to delay.” It became a talking point.
People now apply the talking point to everything he does.
- Did he tell a lie? “The goal is to delay,” comes the inevitable mantra on mainstream and social media.
- Did he file a motion that is sure to lose? “The goal is to delay,” comes the inevitable mantra.
You get the idea. Let’s dispense with old talking points.
What he is doing now is different: He is milking the show, demonstrating that he is a strongman, and feeding talking points to his surrogates.
Remember, he is not acting like a normal defendant. He is acting like a person whose strategy is to use these prosecutions to solidify his power over the Republican Party, which glorifies lawbreaking and can only be stopped at the polls.
Do you want to stop the rise of right-wing extremism in America? There is only one way. At the polls. For what you can do, click here.
The first commenter said this:
“um … not a lot of hope in this blog post. Where can we go for that hope?”
There is not a lot of hope for the Republican Party. As far as hope for democracy surviving, it was always about the next election. The criminal justice system was never going to save us.
This is not to say that the criminal proceedings against Trump are not important. They are vitally important. But they will not save democracy. That is up to us. When you volunteer, you meet like-minded people who are working as hard as you are, and that is where you find hope. Click here. and find a place to start.
Enough Legal and Political Talk. It’s time for Dog Talk.
This is Dog Talk for, “I see you are getting ready to leave. Here I am, by the door. Please take me with you.”
