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How Will Trump's Lawyers Defend Him?

So far, Donald Trump is being represented in the Mar-a-Lago documents case by Todd Blanche, a former Manhattan prosecutor, and Chris Kise, a former Florida solicitor general whose specialty is civil cases, not criminal cases. However, it is believed that Trump is trying to strengthen his legal team by adding an actual criminal defense lawyer, if he can find one. This is proving difficult because numerous top Florida lawyers have already turned him down, either because they fear he won't pay them or they fear he won't listen to them or both. Also, many lawyers know that they will have to deal with Boris Epshteyn, who worked as a corporate lawyer for 18 months but thinks he is the world's best criminal defense lawyer. In addition, three of Trump's lawyers—Tim Parlatore, Jim Trusty, and John Rowley—have left his team recently, which makes other lawyers very nervous.

Absent a new top lawyer, Blanche and Kise are left to prepare Trump's defense. Here are some of the likely approaches they will take:

A lot of what the lawyers will do is focus on process, not content. Trump clearly had documents he had no business having. That will be hard to refute, so they are probably going to talk about mistakes the other side made that invalidate evidence and stuff like that, rather than arguing that taking secret defense documents after you leave office is one of the perks of the presidency.

Somewhat ironically, Trump wouldn't be needing a defense if he hadn't been as stubborn as the rear end of a pig. In the fall of 2022, Trump hired Christopher Kise as his lawyer. Trump paid Kise $3 million upfront, so he must have had some regard for Kise's skills. Kise immediately got to work and wanted to negotiate with AG Merrick Garland to "take the temperature down," give Garland what he wanted, and hopefully avoid all charges. Trump refused to follow Kise's advice and stonewalled. Kise never talked to Garland and the AG appointed Jack Smith as a special prosecutor a few months later. There is no guarantee that Kise could have made a deal with Garland, but Trump didn't even allow him to try. It is noteworthy that Trump was not charged with possession of any of the documents he did return to the National Archives, only the ones he hid in his bathroom and elsewhere. If Kise had said to Garland: "We will vacate Mar-a-Lago and your people can search the place from top to bottom for as long as you want," Trump might well have escaped charges. But being a big bully has worked his entire life, so Trump figured it would work again.

What is still unclear is why Trump wanted to keep the documents. If he was planning to blackmail the U.S. government by threatening to sell them to Russia, China, or Iran if they indicted him, it appears he didn't even try. If he was planning to sell them to the highest bidder, the auction apparently didn't get any bids, because he still had them. If they had been safely stored in Moscow, the FBI wouldn't have found anything when they executed the search warrant. If Trump wanted them for bragging rights and to show friends (assuming he has any), just keeping two or three would do the job. All we can think of is he was thinking: "Who can stop me from keeping them?" Using them to blackmail the U.S. or sell them to Putin makes some sense from Trump's perspective, but it now doesn't appear that is why he kept them. Nor does it make any sense that he refused to let Kise try to get him off the hook by negotiating with Garland. It is hard to fathom what Trump was thinking. (V)

Why the Judge Matters

The magistrate judge who handled Donald Trump's arraignment won't be the trial judge. That is scheduled to be Judge Aileen Cannon, unless she recuses herself or Special Counsel Jack Smith goes to the U.S. Court of Appeals for the Eleventh Circuit and asks it to disqualify her due to her evident bias, something the Court smacked her down for earlier in the case. She hasn't made any noise about recusing herself, so we have to imagine she dreams of President Trump appointing her to the Eleventh Circuit and maybe even to the Supreme Court if a vacancy opens up there. Smith hasn't talked about trying to get her off the case, but he never talks about the case except when he has taken an official action.

Does the judge matter? In the immortal words of Sarah Palin "You betcha." The judge has a lot of power over any case. Let us count the ways.

In short, a judge has enormous influence on any case, and especially a high-profile one like this. Of course, being in the bag for Trump will get a lot of hate directed at the judge, but it might be worth it for a seat on the Eleventh Circuit and maybe later the Supreme Court.

One thing that could have a big effect on the trial is that Judge Cannon has been on the bench only 2½ years and has almost no experience with criminal trials. She was assigned 224 criminal cases since she started the job, but 220 of them ended in plea deals and there was no trial. The four cases that went to trial took a grand total of 14 days. Now she may get to preside over the biggest criminal case in the nation's history.

She is the daughter of a Cuban exile and was a member of the Federalist Society at the University of Michigan Law School. That much is known about her. But it is her lack of experience that may be even worse than her bias. Trump's case will certainly raise issues that would vex even a grizzled veteran judge, let alone a rookie. Just one of them is how to protect the jury from the massive media coverage that will occur during the trial. It is expected to last at least a month. Cannon could lock all the jurors in a hotel every night, but that would radically reduce the jury pool as people with children and other responsibilities would then beg off. And she would also have to get the hotel to remove the televisions from their rooms and take away their cell phones, iPads, etc. This would result in a very cranky jury, some of whom might decide she needs to be taught a lesson so they ignore all of her instructions.

The chief clerk of the South Florida courts has stated that all the normal procedures were followed and Cannon was simply chosen at random by a computer, which is the normal way judges are assigned. The computer's algorithm takes into account who is an active judge and who has senior status, how many cases each judge currently has, where the cases originate, and things like that, but does not consider overt bias as a factor. (V)

Trump Raised $2 Million after Arraignment

For Donald Trump there is no such thing as bad news. There are only fundraising opportunities. After his arraignment on Tuesday, he visited a Cuban restaurant in Miami and then flew to his Bedminster, NJ, golf club for a candelight dinner with big donors. He raised $2.04 million at that event. From his point of view, Tuesday was thus a very good day for him. Remember, it is all about the money. All in all, Trump has raised $7 million since his indictment.

The donors present at the Bedminster club were all big donors or big bundlers. Only people who had contributed or gathered up $100,000 were invited. This is not to say that Trump doesn't get money from small donors—he does—but he depends on big donors as well. Clearly the big donors who ponied up $2 million think he has a good chance to be elected president in 2024 or they wouldn't have contributed. No big donor wants to throw good money after bad. They are much less impulsive than small donors who don't think much about return on investment.

At the dinner, Trump unleashed a torrent of insults at Jack Smith. He called Smith a deranged lunatic, a thug, and a raging and uncontrolled Trump hater. Trump knows that Smith won't sue him for defamation, but if Smith did, he would probably have a strong case. Trump also attacked Smith's wife, Katy Chevigny, a documentary filmmaker who worked on a documentary about Michelle Obama. These remarks may fire up the base but may also interest other people in the documentary about Obama. (V)

The Gap Keeps Growing

Ronald Brownstein has an interesting column over at CNN. He says that what Republican primary voters want and what general-election voters want are far apart and the gap between them keeps growing. This means that what a politician says to get the nomination could prove fatal in the general election. Trying to be all things to all people almost never works. Voters are reasonably good at sniffing out phonies.

Case in point: Trump's indictments. Any Republican politician who wants the votes of Trump's base needs to defend him. Saying that it is up to the courts and the jury to determine his guilt or innocence doesn't fly with them. What is needed is a full-throated: "He is innocent and the Democrats are persecuting him." That will work wonders in the primaries, but will come back to haunt the nominee in the general election, especially with independents, most of whom think the charges are serious and a trial will not be a witch hunt. Polls show that three-quarters of them, along with four-fifths of college-educated white people, people of color, and voters under 45 do not want Trump to be president if he is convicted of any crime. Failure to defend Trump now could be fatal in the primaries, but defending him now could be fatal in the general election. What's a candidate to do?

History professor Ruth Ben-Ghiat of NYU, who studies authoritarian leaders, says the closest parallel with Trump is the late Silvio Berlusconi, who died on Monday. He was indicted for many crimes and put on trial many times. Each time his base rallied around him. He established personal loyalty to him as the litmus test for belonging to his party (Forza Italia). Any politician who rejected him personally was cast out of the party. This is what the other Republican primary candidates are about to discover, some of them the hard way.

Ben-Ghiat likens the multiple indictments and trials, both present and future, to the "truth commissions" established in places like South Africa and Chile, which catalogued the many misdeeds of the previous authoritarian regimes. In real time, they were very painful for many people, but in the end, they strengthened democracy in their respective countries.

Some observers think that if enough charges are filed against Trump in enough jurisdictions, Trump's supporters will desert him. That didn't happen to Berlusconi and probably won't to Trump. Berlusconi said that his enemies were after him and only his supporters could protect him. Trump is already saying the same thing. He will make the weaponization of the DoJ a major campaign theme. If his primary opponents agree with that, they could have a shot at the nomination if Trump falters, but saying that now could come back to bite them in the rear later on.

Bill Kristol said that maybe the only route for other primary opponents is to say they have faith in the legal system and Trump did a good job as president, but with Trump distracted by so many trials combined with the dismal election results in 2022, it is time for a new leader. (V)

To Pardon or Not to Pardon, That Is the Question

Continuing on the theme of the item above, one question reporters are going to ask all the Republican candidates is: "If you are elected president, will you pardon Donald Trump?" Again, this is a very tricky issue. A hard: "Yes, absolutely, on Jan. 20, 2025 at 12:01 p.m., I'll do it. Hell, my inaugural speech will start with: 'As my first official act as president, I hereby pardon Donald John Trump of any and all crimes he may have committed against the United States'" will be very helpful in the primaries but probably fatal in the general election. On the other hand: "Nope, no way. If one or more juries find him guilty, then he will have to go to prison" could be fatal in the primaries although possibly helpful later on if the candidate somehow gets the nomination (e.g., if Trump dies before the convention).

Some of the candidates are already staking out positions. Vivek Ramaswamy has not only tweeted that he will pardon Trump, but has demanded all the other candidates co-sign his pledge to do it as well. Ramaswamy has no chance to get the nomination, so it doesn't matter what he demands. For the record, Perry Johnson also said he would pardon Trump, but who cares what he says? The issue is: What do the more viable candidates say?

Nikki Haley is trying to have it both ways. She said she would be "inclined" to pardon Trump? What does that mean? That she is concerned about Trump's crimes? That won't be allowed because being "concerned" is a trademark of Sen. Susan Collins (R-ME). Much as Haley would like to, she can't be on both sides. It simply won't work. The base won't believe her and independents won't believe her. She also said that a pardon is less about the guilt and more about what is better for the country. Sure. Right. Has she ever heard of Jerry Ford? Maybe not. She was only 2 years old when Ford pardoned Richard Nixon "for the good of the country" and saw his approval rating drop by 30 points almost immediately. He also lost his election bid as a result.

Gov. Ron DeSantis (R-FL) hasn't stated his views on a pardon yet. He's probably waiting for more polling to come in before announcing his deep-seated views on a pardon. But he knows that Trump is a criminal. DeSantis served in the Judge Advocate Corps in the Navy. A reporter asked him what would have happened to him if he had taken classified documents home when he had them. He replied: "I would have been court martialed in a New York minute." But, like Haley, he is watching which way the wind is blowing and will try to evade taking a position as long as he can. That might not be so long, though. Suppose the moderator at the first debate says to all the candidates: Raise your hand now if you will pardon Donald Trump if he is convicted of any crimes before you become president." Either you raise your hand or you don't. Screen shots of that will be all over the Internet in 60 seconds.

Chris Christie was already asked about a pardon and said if Trump is given a fair trial and found guilty, then no, he would not pardon him. Asa Hutchinson was on CNN last weekend and said that a pardon was simply wrong.

We're curious about what Mike Pence will say when he can't tiptoe around the issue any longer. Especially if Trump is indicted for inciting a riot in which the rioters wanted to hang him. This issue is not going away any time soon. (V)

Fox News Calls Biden a Wannabe Dictator

During Donald Trump's speech after his arraignment, Fox News ran a chyron calling Joe Biden a wannabe dictator for arresting his political rival. Here is a screenshot:

Screen shot of Fox News with chyron
reading: 'WANNABE DICTATOR SPEAKS AT THE WHITE HOUSE AFTER HAVING HIS POLITICAL RIVAL ARRESTED'

The chyron ran for 27 seconds.

Back on Planet Reality, Biden has repeatedly said that he has had no contact with either AG Merrick Garland or Jack Smith about the Trump case and there is not a whit of evidence suggesting he gave any orders to anyone about how to handle the case. Also, given Garland's temperament, the AG would not have taken any instructions well and might have resigned rather than carry them out. Biden has also not made any public comment on the case and has told the DNC not to talk about it either. (V)

Ohio Supreme Court Orders Changes to Ballot Measure Rules

Abortion is sure to be a big issue in the 2024 elections. Various referenda and citizen initiatives about it are going to be on the ballot in numerous states. In 2022, the pro-choice position won in all six states where it was on the ballot. Ohio Republicans sense what is coming and they don't like the handwriting on the wall. So they want to head off the ballot measures at the pass.

Specifically, the Ohio legislature has put a measure on the August 2023 special election ballot that would make it harder for citizen initiatives to amend the state Constitution because they are afraid one in 2024 will propose changing the state Constitution to enshrine the right to an abortion in it. Currently, it takes a 50% + 1 vote to change the Constitution. The August measure, if approved, would raise the bar to 60% + 1, making it much harder for citizen initiatives to win. The August measure, called State Issue 1, would also make collecting signatures more difficult. Clearly the legislators think the people should butt out and do what their betters tell them and not try to override them.

If the measure clearly stated that what it does is raise the threshold to make it harder for citizen-initiated measures to pass, it might be rejected, so the legislators wrote it in a misleading way so many voters won't understand what it actually does. To their surprise and dismay, the Republican-dominated state Supreme Court ruled 4-3 that the language of the August measure was misleading and had to be changed.

The group that sued the state, One Person One Vote, didn't get everything it wanted, but is still hailing the ruling as a victory. A spokesman for the group said: "The language politicians and special interests wanted on our ballots for Issue 1 was full of lies. We're glad the Ohio Supreme Court saw through the deception and ordered changes. Ohioans must know: Issue 1 was designed to trick voters into giving away their rights—and the special interests who bought the August 8 special election will stop at nothing to end 100 years of majority rule in Ohio." The special interests in this case consist of the Republicans in the state legislature, not some dark money group.

Ohio Secretary of State Frank LaRose (R), who chairs the five-member Ohio Ballot Board, said he would convene the group to rewrite the measure in accordance with the Court ruling. He clearly didn't like the idea, but he said he will go along with it.

Ohio isn't the only state trying to block citizen initiatives. Many Republican-controlled states absolutely do not want abortion measures on the ballot and will move heaven and earth to keep them off. Not only do they offer a way for the voters to overrule the legislature, but their mere presence on the ballot tends to drive up Democratic turnout. Consequently, there are efforts in many states to make it harder to get measures on the ballot in the first place, even though ballot measures are a unique part of American democracy and have been for more than a century. (V)

Inflation Is Down for the 11th Straight Month

"It's the economy, stupid" is a venerable old chestnut in politics. When the economy is good, the president tends to get the credit. When it is bad, he tends to get the blame. Of course, in reality, the president has a limited impact on the economy, mostly limited to appointing members of the Federal Reserve Board. But the voters don't know that and plenty of presidents have been defeated when the economy went south.

There are two aspects to the economy that the voters notice: unemployment and inflation. Right now, unemployment is close to a record low. Anyone looking for a job has plenty of jobs to choose from. During Joe Biden's administration, 13 million jobs have been created. Count on Biden to mention this a couple of times while out on the trail.

The other factor, inflation, is not so positive for Biden, but is improving. The May figures show that inflation has decreased for the 11th consecutive month. Prices increased by 4% compared to a year ago, down from almost 5% in April. It is still high by historical levels, but if it continues to drop for the next year and unemployment does not shoot up, Republicans won't be able to make hay out of a bad economy. Of course, they can't openly root for more unemployment or more inflation—that would be tacky, even for them—but a party can hope, can't it?

Here is the annual inflation rate from 1970 until May 2023.

Annual inflation from 1970 to May 2023

As you can see, the current 4.0% rate is way down from the 2022 peak, but still a bit higher than the long-term average, which is about 3%. Of course, the inflation rate is dropping because the Fed has repeatedly raised interest rates. Fed Chairman Jerome Powell is hoping for a soft landing, but the economy often has its own ideas about such matters. Yesterday, Powell announced that the Board will freeze interest rates for the time being, but cautioned they could be raised in the future if needed. Still, if inflation continues to drop, even by 0.1% per month, and unemployment doesn't spike, Republicans won't talk about the economy much in 2024—but Biden will. (V)

No Censure-Schiff

We've made mention of this story twice already, so we better also mention its conclusion. Yesterday, House Democrats moved to kill the resolution introduced by Rep. Anna Paulina Luna (R-FL) that would have censured Rep. Adam Schiff (D-CA) for, in effect, saying mean things about Donald Trump. All of the Democrats, plus 20 Republicans, voted to table the resolution. That is a majority with a half-dozen votes to spare, and so the resolution is dead.

What those 20 Republicans recognize is that censuring a member is supposed to be a very serious matter, limited to very egregious conduct. Do you know how many members have been censured since 1900? The answer is: eight. Once, way back in 1921, the reason for the censuring was "unparliamentary language." In addition, four members have been censured in that time for committing actual crimes, and two others for inappropriate sexual conduct with House pages. The eighth person on the list is Rep. Paul Gosar (R-AZ), who was censured for a social media post that encouraged violence against Joe Biden and Rep. Alexandria Ocasio-Cortez (D-NY). Even if you believe that Schiff was wrong to declare that Donald Trump cooperated with the Russians, even if you believe he was lying through his teeth and knew it (and there's no evidence for any of these suppositions), this simply does not rise to the level that justifies being censured.

We are inclined to think that there are more Republicans, beyond those 20, who know full well that censure was not called for here, but who were unwilling to buck the party line. In any case, the fissures in the Republican conference continue to be on public display. Meanwhile, the more moderate members of the conference are surely getting very weary of all these red-meat show votes. Those are great for members in districts that are, say, R+15. They are not so great for members in districts that are, say, R+1. (Z)

Always Room for One More?

Why do we put this item at the very end of the page? Because there is no lower spot available. If there was a way to put it two or three spots after the last item, then we would do that, because that would capture how likely this news is to affect the GOP presidential race.

As we noted yesterday, Miami mayor Francis Suarez has been hinting at a presidential run for several months. He was front and center for Tuesday's arraignment, trying to get as much camera time as possible. And yesterday, Suarez took the plunge and filed the paperwork necessary for a presidential run.

There is zero chance Suarez is going to be the Republicans' presidential candidate. He's not only up against the 800-pound gorilla that is Donald Trump and the 250-or-so pound gorilla that is Gov. Ron DeSantis (R-FL), he's also up against a bunch of lesser candidates who are largely better known than he is and who got going before he did. The money isn't there for him to collect, the staffers aren't there for him to hire, and the voters aren't there for him to attract. It's hard to see how he might overcome these issues if he had 6 months to try. And he doesn't have 6 months; the first GOP debate is in 9 weeks.

There is also zero chance that Suarez is going to be the Republicans' vice-presidential candidate. A somewhat moderate (by the standards of the modern-day GOP) Latino from Florida could potentially be an interesting pairing under certain circumstances. But electors can't vote for both a president and a VP from the elector's home state. That effectively means that DeSantis and Trump can't run with Suarez, because even if they won the election, they would be at risk of getting stuck with a Democrat as VP. If you can't be on a DeSantis ticket or a Trump ticket, you can't be the GOP VP candidate in 2024. Even if we imagine that those two both collapse, Suarez isn't much of a fit with the folks in the second tier, for various reasons, and would face fierce competition for the "honor" from dozens of other Republicans.

That means that the Mayor is presumably in search of name recognition, for when his time in his current office is up, and he shoots for a promotion. Could he challenge Sen. Rick Scott (R-FL), who is up next year and is not very popular? It's possible. Otherwise, Suarez may be thinking about the Florida governor's mansion once DeSantis vacates it. (Z)


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