Author: mccoysnoise

Pick Any Door

As the furor mounts around the grand jury’s recent indictment of former President Donald Trump for his alleged role in an insurrection-related conspiracy, I would suggest that those focused on whether he will be found guilty are in a sense chasing a red herring.  As long as the former President remains the clear frontrunner for the 2024 Republican presidential nomination, the most important question facing our citizens with regard to Mr. Trump – since he currently holds no office, has no federal power — is how what he is either alleged to have done or admits that he did in the past reflects upon his fitness to be President of the United States in the future. 

Start with the indisputable fact about the 2020 election results, repeated ad nauseam here and elsewhere:  Mr. Trump and his acolytes lost every significant lawsuit (many decided by Republican judges who voted for Mr. Trump) challenging the election results (many reported by Republican election officials who voted for Mr. Trump) in the states that determined the election’s outcome.  As the grand jury succinctly summarized in the first paragraph of its indictment: “The Defendant lost the 2020 presidential election.”

I will venture that the fate of Mr. Trump’s 2024 presidential candidacy will rest not upon the diehard opposition of Democrats or other voters unalterably opposed to him, nor upon the rabid allegiance of the voters slavishly dedicated to him, but upon those voters uneasy about President Joe Biden – his age, the economy, whatever – who are seemingly willing to entertain the notion of voting for Mr. Trump.  I would suggest that there are only three conclusions regarding Mr. Trump’s fitness for office – two of them actually urged by Mr. Trump’s defenders – that one can draw from the insurrection-related charges Mr. Trump now faces:

Door No. 1:  The Criminal Door.  Mr. Trump knowingly engaged in a conspiracy to steal the presidency and overturn our democracy. 

Door No. 2:  The Free Speech Door.  All Mr. Trump did was falsely declare that he won the election.  Such false assertions, even if they were made knowingly, are protected by the First Amendment.

Door No. 3:  The Witless Door.  Mr. Trump really believed that he had won the election, and thus, he was neither conspiring to overturn our democracy nor knowingly misleading his supporters.

I would offer this to those uncommitted citizens open to voting for Mr. Trump:  Put aside whether he’s found guilty or beats the wrap, a villain or a martyr.  Think about Mr. Trump purely as a candidate, and … pick any door.  Either he’s a traitor … or a liar … or a delusional fool unable to distinguish reality from fantasy.  Whichever door you pick:  Is this a person who should be … President of the United States?

Those Were the Days

This past weekend, we were poking through one of the countless antique establishments in central Wisconsin and I came across an edition of the Milwaukee Sentinel dated July 4, 1976.

I can place myself exactly on that day – not only because of the Bicentennial, but because it was a little more than a month before we were married.  I was on the east coast visiting family that Holiday weekend, but am confident that the Sentinel edition I found lying on the antique store shelf is identical to the copy delivered to my in-laws’ stoop on the morning of July 4, 1976.

I was first struck by the size and weight of the paper – a paper, mind you, that was only one of two major daily papers then published in Milwaukee (the other being the Milwaukee Journal; the papers thereafter merged into the Milwaukee Journal-Sentinel) — at a time when America had a limited number of national nightly news telecasts (CBS, NBC, ABC, PBS – no Fox) and regional network affiliates broadcasting local news.

Amid the Sentinel’s extensive reporting about Bicentennial celebrations and a section on the Founding Fathers’ declaration of our independence, I saw little reference to politics.  By that holiday, former GA Gov. Jimmy Carter had clinched but not yet formally won the Democratic Party’s 1976 presidential nomination, while President Gerald Ford was locked in a tight contest in which he ultimately defeated former CA Gov. Ronald Reagan for the Republicans’ presidential nomination.

I well recall that there were sharp policy differences among the candidates, but there was no indication that any of them had any reason to worry that our republic would come to an end if one of their political opponents prevailed.

Later that year, Mr. Carter narrowly defeated Mr. Ford.  When Mr. Ford lost, he left.  Four years later, Mr. Reagan defeated Mr. Carter.  When Mr. Carter lost, he left.

Although many parts of American life are better today, obviously many need attention.  We cannot go back; we can only hope to make tomorrow better.  Even so, as I looked over the old edition of the Sentinel, the theme song of perhaps the most renowned television comedy series of all time – which on that long-ago July day had just concluded its fifth consecutive season ranked at No. 1 in the Nielson ratings — actually came into my head: 

Those Were the Days.

On The Trump Insurrection Indictment

In a brief statement after the Washington, D.C. grand jury issued its indictment against former President Donald Trump for Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding, Obstruction of and Attempt to Obstruct an Official Proceeding, and Conspiracy against Rights, Special Counsel Jack Smith urged everyone to read the indictment.  Rather than listen to the inevitable hours of ensuing commentary, I followed his recommendation.  I haven’t added a link here because you have a plethora of means to reach and read it.  If you haven’t already done so, please do; 45 pages of double-spaced letter-size pages isn’t that daunting and the story it relates requires no legal training to decipher.

In one respect, there is little new in it.  Any citizen with the capacity for critical thought who kept abreast of the debunking of Mr. Trump’s and his cohort’s claims of election fraud in the key battleground states in late 2020 is well aware that their claims of outcome-determinative fraud were baseless.  There are nonetheless some striking allegations:  that Mr. Trump absolutely knew his claims were false – he was repeatedly told by competent advisors and people with understanding of the facts that there was no outcome-determinative fraud in any of the states at issue – and he continued to repeat his lies anyway, ultimately culminating in the Capitol riot; of the fairly intricate planning that went into the fake elector scheme intended to replace the legally-designated Biden electors in the contested states with Trump electors – who obviously had no legal standing to cast votes in the Electoral College and were in some cases duped into participating – to provide Mr. Trump the electoral victory (thereby violating the voting rights of the contested states’ Biden voters); and of the extent to which Mr. Trump attempted to pressure Vice President Mike Pence to reject the contested states’ Biden elector slates and return their slates back to their respective state legislatures despite being repeatedly advised – by Mr. Pence and others – that Mr. Pence had no such legal authority.  (I am mystified as to why Mr. Pence continued to meet with Mr. Trump and take his calls after the election outcome was clear.  Mr. Pence, as the duly-elected Vice President, was the one member of the Trump Administration who could ignore Mr. Trump, and whom Mr. Trump couldn’t remove.)

If Mr. Smith and his team prove what they have alleged, the Stop the Steal Movement was a knowing, malign, and illiberal conspiracy to steal the presidency and overturn our democracy.

I recently suggested that it could be problematic to get Mr. Trump’s insurrection trial scheduled before the election.  I have since heard reported that New York authorities may be willing to give way on Mr. Trump’s March trial date for criminally violating New York business law, and I’d assume that Mr. Smith’s team will be amenable further postponements of Mr. Trump’s Florida trial for misappropriation and mishandling of classified documents if that provides a window for the insurrection trial in D.C. (I suspect that Mr. Trump’s team will seek no further delay in the documents case.  😉 )  

The indictment is also a reminder of the number of loyal Americans who stood in the breach in 2020 who are now gone.  For his own purposes, the former president has driven the distrust of our institutions even deeper into the public consciousness since he left office.  Our way of life is at a perilous juncture.  May Mr. Smith and his team enjoy Godspeed.

Mid-Summer Impressions

Summertime celebrations, activities, and responsibilities have afforded little time during the last month to keep abreast of current events, and brought about what is by far the longest interval between entries in these pages since they began in 2017.  I am confident that everybody has survived just fine 😉 .  A few impressions as we round the corner into the last month of real summer, at least in the upper Midwest:

As all who care are aware, in mid-July, former President Donald Trump received a so-called “Target Letter” from Special Counsel Jack Smith’s prosecutorial team, indicating that Mr. Trump is the subject of the federal investigation into the January 6, 2021, Capitol attack.  It almost certainly portends an indictment of Mr. Trump for his part in inciting the insurrection. 

I was obviously never a judge; I never did criminal law; I did very little courtroom work in my career.  While I stand ready to be corrected by any of those reading these notes who have oceans more trial experience than I have, if I was the District of Columbia federal judge hearing the insurrection case against Mr. Trump, I’d have to think pretty hard about whether to grant the Trump team’s inevitable motion to significantly delay the trial date.  A criminal defendant should be given a fair opportunity to defend him/herself, and since Mr. Trump is now scheduled to defend himself in New York in March against authorities’ state law charges that he criminally falsified business records, he is now scheduled to defend himself in Florida in May against Mr. Smith’s team’s federal charges that he misappropriated and mishandled classified documents, and he is reportedly facing an August indictment in Georgia by Georgia authorities for his efforts to overturn the 2020 Georgia presidential results – a case that will be on its own state court scheduling track – it’s perhaps becoming problematic as to how, in fairness, a trial dealing with insurrection charges against Mr. Trump could be scheduled prior to the 2024 presidential election.

Next:  The most recent edition of Foreign Affairs Magazine is entitled, “Tell Me How This Ends – Is there a Path to Victory in Ukraine?”  I haven’t read all the pieces, but one addresses all the ways that the war could end up destabilizing Russian President Vladimir Putin and lead to peace.  I consider the authors’ premises closer to pipedream than reality.  If Putin was going to be deposed, it would most probably have resulted from Yevgeny Prigozhin’s Wagner Group’s short-lived and quickly-quashed revolt (which arose, as far as I could tell, not from any wish by Mr. Prigozhin to end the war but because Mr. Prigozhin didn’t think Putin was providing his Group sufficiently aggressive assistance).  Another essay declared the war “unwinnable,” noting that even as Ukraine has launched its counteroffensive, “Russian forces are heavily dug in on the most likely axis of advance in the south.”  Former Google CEO Eric Schmidt echoed in the Wall Street Journal earlier this month, “Between the two armies, there are at least 3 miles of heavily mined territory followed by rows of concrete antitank obstacles, with artillery pieces hidden in nearby forests.  The Russian military has amassed so much artillery and ammunition that it can afford to fire 50,000 rounds a day – an order of magnitude more than Ukraine.  Traditional military doctrine suggests that an advancing force should have air superiority and a 3-to-1 advantage in soldiers to make steady progress against a dug-in opponent.  Ukrainians have neither.”  (Mr. Schmidt is obviously an expert in technology, not military tactics, but I quote him because he summarizes sentiments I have heard expressed in other quarters.)

Although some have deplored the Biden Administration’s agreement to provide Ukraine with cluster bombs due to the devastating impact that such launched but unexploded devices can have on civilian populations, I tend to give the Administration the benefit of the doubt:  other available artillery may be dwindling, and President Volodymyr Zelenskyy seems best able to determine whether or not his people are better served by deploying such weapons on his soil.  

One can hope but it seems optimistic to expect that the Ukrainians will make significant headway with their current counteroffensive.  (As reported above, the Ukrainians have been directing their efforts at the southwest areas of the conflict zone, presumably in an attempt to obtain secure access to the Sea of Azov and the Black Sea that seems essential if the nation is to survive economically when the conflict ultimately ends.)  Current accounts are rife with seemingly eerily-apt references to World War I; Barbara Tuchman noted in The Guns of August that after Germany failed to secure a quick military victory by early autumn 1914, “[Then] came the slow deadly sinking into the stalemate of trench warfare. … [L]ike a gangrenous wound across French and Belgian territory, the trenches determined the war of position and attrition, the brutal, mud-filled, murderous insanity known as the Western Front that was to last for four more years.”

The general consensus among commentators is that the parties should be looking for a negotiated settlement.  Various options for achieving such a result have been offered:  immediately making Ukraine a member of NATO; having Ukraine and Russia agree to an armistice such as exists in Korea; or having America provide defense assurances to Ukraine such as it provides to Israel.  The difficulty with these and any other proposals is plain:  even if Ukraine was ready to negotiate a peace arrangement – and it’s not – Putin isn’t going anywhere and he isn’t interested in negotiations. 

I’m confident that the Russian President sees what we all see:  Russia can’t conquer Ukraine militarily, but it can still win – if former President Donald Trump is re-elected.  Putin won’t make meaningful overtures for peace with Ukraine unless and until he sees that neither Mr. Trump nor any other isolationist MAGA has a realistic opportunity to win the U.S. presidency.  It is what it is.  If counseling President Joe Biden, I’d advise him to continue explaining to the American people why Ukraine’s fight is also a fight for our freedom and begin messaging that it is unlikely that there will be a meaningful opportunity to achieve a negotiated settlement until at least 2025.

Next:  Republican Senate Minority Leader Mitch McConnell’s recent mental “freeze” – some months after he sustained a head injury in a fall – is extremely troubling.  Even putting aside human kindness, the possible reminder to some of President Joe Biden’s potential frailty (the men are the same age), and despite Mr. McConnell’s deplorable manipulation of Senate procedures to achieve an aggressively conservative U.S. Supreme Court (efforts which, ironically, have so far backfired on Republicans politically), I would submit that those concerned about American democracy should hope that Mr. McConnell remains sufficiently possessed of his faculties to continue to lead Senate Republicans through 2024.  He clearly has no regard for Mr. Trump, and has used his position to limit MAGA influence in the Senate and to support the Administration’s efforts in Ukraine.

Finally:  This week, Mr. Smith filed a superseding indictment in the classified documents case against Mr. Trump, and added Carlos De Oliveira, a Mar-a-Lago property manager, as a defendant.  The superseding indictment alleges, “De Oliveira told Trump Employee 4 that ‘the boss’ wanted the server deleted. … De Oliveira then insisted to Trump Employee 4 that ‘the boss’ wanted the server deleted and asked, ‘What are we going to do?'”

Mr. Smith’s team is clearly attempting to pressure Mr. De Oliveira to turn state’s evidence.  If Mr. De Oliveira does elect to cooperate with prosecutors and his testimony supports their charges, it will seemingly directly implicate Mr. Trump in a criminal conspiracy.  The indictment’s allegations regarding Mr. De Oliveira reminded me of a reference posted here in February, 2018, relating to Special Counsel Robert Mueller’s investigation of Mr. Trump:

“As aptly noted in the movie, You’ve Got Mail, The Godfather is … the I Ching; the sum of all wisdom; the answer to any question. 

Not specifically called out in the film, Mario Puzo wrote in the novel:

‘[The fictional Don Corleone] … put layers of insulation between himself and any operational act.  When he gave an order it was to [the Consigliore] or to one of the caporegimes alone.  Rarely did he have a witness to any order he gave any particular one of them …

Between the head of the family, Don Corleone, who dictated policy, and the operating level of men who actually carried out the orders of the Don, there were three layers, or buffers … each link of the chain would have to turn traitor for the Don to be involved …’

If Mr. Mueller and his team are seeking high-level corroboration of evidence against the President, whether they secure it may come down to whether Mr. Trump read The Godfather, or merely saw the movie …”

If Mr. De Oliveira ultimately confirms the Special Counsel’s allegations, I’ll no longer need to wonder; it will be clear that Mr. Trump only saw the movie.  😉

Pledging Our Sacred Honor

“You must not weaken in any way in your alert and vigilant frame of mind.  Though holiday rejoicing is necessary to the human spirit, yet it must add to the strength and resilience with which every man and woman turns again to the work they have to do, and also to the outlook and watch they have to keep on public affairs. …

[W]e have yet to make sure … that the words, ‘freedom,’ [and] ‘democracy’ … are not distorted from their true meaning as we have understood them.  There would be little use in punishing the Hitlerites for their crimes if law and justice did not rule, and if totalitarian or police governments were to take [their] place ….”

  • British Prime Minister Winston Churchill, May 13, 1945

As incongruous as it seems to quote an Englishman to mark our Independence Day, Mr. Churchill’s remarks to the British people – on a date after the fall of Nazi Germany but before the defeat of Imperial Japan, and as the indications of Soviet Russia’s designs for eastward European territorial domination were first appearing — nonetheless strike me as particularly relevant to our current day, as the illiberal machinations of so many of the leaders and members of one of our major political parties continue unabated.  

If we continue to hold it a truth “self-evident,” as our founding fathers declared, that all persons “are created equal,” and “endowed by their Creator with certain inalienable rights,” let us take a moment during the coming weekend’s celebrations to pledge, as they did, “our sacred Honor” (think about the power of those words:  sacred Honor) to through Constitutional means apply our strength and resilience, as Mr. Churchill exhorted, to keep our watch on public affairs, and to the work we have to do to preserve our democratic way of life.

MAGAs don’t “own” our flag; we do.  I find their parading around in it a despicable desecration of it.  Embrace the red, white, and blue, the stars and stripes, and the truths and freedoms it represents. 

Happy Holiday.

Marking a Milestone

Today is my mother-in-law’s 100th birthday.  Last weekend, her children and their spouses, her grandchildren and their spouses and significant others, and her great grandchildren gathered together from across the country and the world to toast her, joined by many of her extended family and friends.  She remains mentally sharp and as physically able as many much her junior.

Only within the last few months – past age 99 ½ 🙂 – did she move from the independent living section of the retirement facility in which she has resided for years to its assisted living section.  She indicated at the time: “I’m ready for a change.  I’ve been bored.”  She perseveres.  She always looks forward.  I would suggest that her attitude is even more important than her reasonably favorable physical genes as to why she continues on.

TLOML and I started going out as Marquette University freshmen.  She was then living at home at her family’s residence in a community adjoining Milwaukee.  After we had been dating a few months, when her mother heard that my birthday was coming up, her daughter told me that she declared:  “That boy has been spending all of his money on you.  We’re having him here for dinner for his birthday.’’ And she did – hosting my 19th birthday party — an affair with china and crystal that I still remember clearly over a half century later.

If through providence one has the rare fortune to enter a family at such a young age and so happily, in time – in my case, well before we were actually married – one viscerally gains a second set of parents.  Such a blessing has been mine. 

May this extraordinary lady have many, many, many more happy returns.

On Robert F. Kennedy

As all who care are aware, the first week in June marked the 55th anniversary of the assassination of U.S. NY Sen. Robert F. Kennedy.  Obviously, Mr. Kennedy is best known as the right hand of his brother, President John F. Kennedy; he managed his brother’s successful 1960 campaign for the presidency and thereafter served as U.S. Attorney General in the Kennedy Administration.  His memory is closer to mind at present due to the recent declaration of his son, Robert F. Kennedy, Jr., for the Democratic Party’s presidential nomination.

I was about two months into my first after-school job when Mr. Kennedy was assassinated, and a political junkie even then; thus, I actually have a somewhat clear personal memory of him – much clearer than I have of his brother, who had died five years before.  I would submit that he is one of the most arresting Americans of the second half of the last century, evolving:  from working for the Committee of the Communist scaremonger, U.S. WI Sen. Joe McCarthy in the 1950s; through his years as campaign ramrod for his brother; through his years in the Executive branch, during which he was the president’s closest advisor; to his years after his brother’s assassination, when he reconsidered the American Vietnam policy he had helped fashion and became the most politically potent opponent of the war.  It was because he was a Kennedy, and viewed as a tough guy, that his opposition to the war had particular credibility; no one considered him “soft.”  President Lyndon Johnson only announced that he would not seek another term after Mr. Kennedy declared for the Democratic Party’s 1968 presidential nomination (the two men despised each other). 

During his years as Attorney General and thereafter, Mr. Kennedy had become increasingly aware of and then outraged by the mistreatment of blacks he saw in America, and became African Americans’ most politically powerful advocate.  (Dr. Martin Luther King was obviously their most notable advocate, but Mr. Kennedy had greater influence with America as a whole.)  No white politician since 1900, with the possible exception of President Franklin Roosevelt, has been as intensely loved in African American community as Mr. Kennedy.

By all accounts, Mr. Kennedy wore his emotions on his sleeve – in contrast to his brother, who (similar to comments I’ve read about President Barack Obama) projected warmth on camera but reportedly was coolly analytical in private.

All that said:  I would submit that any commentators you now hear intoning that we would have had a different world had Mr. Kennedy lived may well be missing the mark.  Despite winning a string of 1968 Democratic party primaries after he declared his candidacy, it was a different era; he would have needed significant support of Democratic Party bosses across the country to win the nomination.  The Kennedys, who derived their power from their charisma and their money, were never the favorites of the Democratic machines, who were much more comfortable with organization-dependent candidates such as Vice President Hubert Humphrey. At the same time, by entering the Democratic presidential primary contest after U.S. MN Sen. Eugene McCarthy had just scored heavily on an anti-war platform against Mr. Johnson in the New Hampshire primary – when liberals had turned to Mr. McCarthy only after Mr. Kennedy had rebuffed their earlier pleas to run against Mr. Johnson — he outraged Mr. McCarthy’s supporters [then considered the (Adlai) Stevenson wing of the party; they are today’s progressives].  In The Unfinished Odyssey of Robert Kennedy, David Halberstam wrote: “In the spring of this crucial year [1968, Mr. Kennedy] had managed, because of his delayed entrance, to be at once too ruthless and too gutless for the liberals and the students, too radical for the middle class, too much the party man for some of the intellectuals, and too little the party man for most of the machines.”

Under the candidate selection process in place at the time, after Mr. Johnson’s withdrawal it was Mr. Humphrey who had the inside track to the Democratic Party’s presidential nomination, not Mr. Kennedy.

Even if Mr. Kennedy had won the Democratic nomination, I would suggest that it was by no means assured that he would have defeated then-former Vice President Richard Nixon in the fall.  While the nation’s grief about and warm feelings for his brother would have helped him, his opposition to the war would have cost him support among the then-core Democratic working class voters who have since morphed into Trump supporters, and he would have lost support among the liberal elites angered at what they perceived as his usurpation of Mr. McCarthy’s rightful place (a close parallel is the dynamic between the camps of U.S. NY Sen. Hillary Clinton and U.S. VT Sen. Bernie Sanders in 2016).  In their respective times, Mr. Kennedy and Ms. Clinton shared an unfortunate and crucial attribute:  a high Antipathy Quotient.  Most politicians need to get known.  In their cases, everyone in America already knew them; their problem was that a notable segment of Americans actively didn’t like them.  That said, perhaps — perhaps – the Kennedy nostalgia and charisma would have been enough to hold enough of the white working class and the African Americans and the Democratic Party machines and the liberal intellectuals (the latter two both detested Mr. Nixon) to win the White House; but it would have been close.

Of one thing I am as sure as I can be about the inclinations of someone I never met:  Mr. Kennedy would be distressed beyond all bounds by his son’s declaration for the Democratic Party’s presidential nomination.  It is patently obvious that any criticisms that Mr. Kennedy, Jr. makes of President Joe Biden in the coming months have the potential to ultimately redound to the benefit of the candidate of a Republican party that is now dominated by MAGA concepts of division and exclusion – diametrically contrasted with the positions his father was espousing the day he was shot.

If you have an opportunity, pick up The Unfinished Odyssey of Robert Kennedy, Mr. Halberstam’s account of his time traveling with Mr. Kennedy’s last campaign.  It is a short, easy read, published in early 1969.  Mr. Halberstam is as smooth a writer of public affairs as I have ever read.  A New York Times reporter who covered the Vietnam War – and whose reporting of the war incurred the wrath of the Kennedy Administration, including that of Robert Kennedy – he later authored The Best and the Brightest, a study of the tragic progression of America’s Vietnam policy.  (Mr. Halberstam noted years later that he found it ironic that “the best and the brightest” had found its way into the public lexicon as a high compliment, when he had intended the title as a wry reflection on the fact that the intelligent elites had led America so far astray.)  Mr. Halberstam also indicated before his own untimely demise in a car accident that despite some seemingly very positive descriptions of John Kennedy in The Best and the Brightest, he had never had any particular sympathy for the president; but at the same time he conceded that he had developed a deep affinity for Robert Kennedy by the time of Mr. Kennedy’s death. 

On Mr. Trump’s Indictment for Mishandling of Classified Documents: A Postscript

Amid summer chores, I’ve been reflecting further upon some of the comments in this original post.

Let’s start with a name game:  John Sirica.

Doesn’t mean anything to you?  In that case, I suspect that you’re a mere youngster 😉 .  I would venture that that name will ring at least a vague bell for all Americans born in 1960 or before, and is well known to virtually all American lawyers of any age.

Judge John J. Sirica presided over the Watergate trials in the early 1970s in Washington, D.C.  His administration of the trials was widely lauded then and since. 

Judge Sirica died in 1992.  The first sentence of his Washington Post obituary referred to the fact that he had presided over the Watergate trials.

I declared in this original post:  “Judge Aileen M. Cannon, whom [former President Donald] Trump appointed to the bench in 2020, has been assigned to hear his case. … [I]t seems that by her earlier rulings [in the same documents case] Judge Cannon has proven herself to be incompetent, a partisan hack, or both.  The judge’s ability to influence the trial’s course and perhaps outcome is obvious:  it takes no prescience to predict the coming wrangling between Mr. Trump’s attorneys and federal prosecutors over jury selection, admissibility of evidence, and scheduling (with delay obviously favoring Mr. Trump).”

We’ll get back to the ramifications of a prolonged trial schedule below.  As to Judge Cannon, I haven’t been able to find any rating by south Florida lawyers as to how ably she has performed in normal cases in her short judicial tenure – since she’s only been on the bench a couple of years, she obviously doesn’t have a lot of judicial experience – and she may indeed lack the competence to preside over such a high-profile matter.  That’s to be determined, and if she doesn’t feel she’s professionally up to it, she should recuse herself.  But as to predictions – including mine – of her pro-Trump leanings, I’m taking a pause.  It’s seemingly possible that Judge Cannon is more horrified than anyone else by her random selection to hear this case.  She’s in her early 40s – literally at the age of our children and of a number of those that read these pages.  She has a husband and two school-aged kids.  Federal trial judges don’t float upon hallowed pedestals.  She undoubtedly goes to the grocery store.  Her kids probably play soccer or engage in other like activities.  She has the bulk of her career in front of her.  She’s already been reversed in a rather humiliating fashion by United States Court of Appeals for the Eleventh Judicial Circuit, a conservative Circuit, for her earlier Trump-friendly rulings in this case.  She can’t escape into the curtained hush the way U.S. Supreme Court Associate Justice Clarence Thomas does.  She may now believe that what looked like a sweet legal gig in 2020 has turned into a nightmare of being engulfed by the Trump Maelstrom.  If advising her, I’d counsel as I would one of our own kids:  You are where you are.  Be careful.  How you handle this case will literally be the first line of your obituary.  Do the best you can.  For your own good, play it straight.

Judge Cannon need look no further than the other defendant in the case – Walt Nauta, Mr. Trump’s “body man” and alleged co-conspirator — to realize that abiding by Mr. Trump’s wishes does not necessarily auger a comfortable life.  Do I think that if Mr. Trump is found guilty by a jury, Judge Cannon will, as some wildly progressive pundits have suggested, disregard the jury verdict and issue a judgement of acquittal to Mr. Trump?  No.  Do I think that Judge Cannon will refuse to admit a lot of the government’s evidence now in the public domain?  Even if she is so inclined, with the Eleventh Circuit looking over her shoulder, I don’t.  (Although the evidence from Mr. Trump’s lawyers, obtained by the government through a piercing the veil of attorney-client privilege, is perhaps on the fence.)  Is there a likelihood that she will provide Mr. Trump more leeway in jury selection and scheduling than the government prefers?  Very possibly — these are areas in which appellate courts generally accord greater deference to trial judges — but the government’s case appears sufficiently strong to withstand these likely hindrances.  If Judge Cannon is savvy – or unless her career aspiration is now to become a Fox News legal analyst — I expect her to play it straight enough.

All those middle-of-the road notions now expressed, I well recall that in February of 2019, considering the Senate’s confirmation process for then-Attorney General Nominee William Barr, I declared in these pages:  “Partisans on both sides are currently all too-ready to impute ulterior motives to those with whom they disagree. … I am willing to believe, unless and until I have evidence to the contrary, that Mr. Barr will do what is necessary to protect the United States while conducting his duty.”  We all saw how those Pollyannaish sentiments fared 😉 .

As noted above, in the original post I also suggested that a delay in the trial helps Mr. Trump politically – a sentiment echoed by others.  I would now add a bit of a qualifier, at least in my own thinking.  A delay seemingly aids Mr. Trump’s campaign during the Republican presidential nomination process and it certainly helps him if he wins the election and the case hasn’t been resolved prior to Inauguration Day, 2025.  (I suspect that reelection is now at least as important to the former president as a way to avoid having jail be the final culmination of a 2016 branding exercise that went WAY wrong – from his perspective and our democracy’s – than it is for the actual return to power it represents.)  At the same time, I have come to believe that any still-pending charges against him for the mishandling of classified documents will weaken his support in the general election among swing and moderate Republican voters in swing states.

Enough.  The weekend is upon us.  May all Dads, and those of any gender who provide fatherly love and guidance to others, have a wonderful Father’s Day.

On Mr. Trump’s Indictment for Mishandling of Classified Documents

“For this man, who is basically a nihilistic moron, to go to jail, potentially for a long time – these Espionage Act charges bring very heavy sentences – to potentially go to jail for something so stupid and pointless and silly and useless is actually kind of fitting.”

  • George Conway, MSNBC’S Morning Joe, June 6, 2023

As all are aware, former President Donald Trump has been indicted by a grand jury of Floridians for criminal mishandling of classified documents at his Florida Mar-a-Lago estate.  The counts include violations of the Espionage Act and obstruction of justice.  In the past, Mr. Trump has gone so far as to famously declare that a president can declassify documents “even by thinking about it” – the first reliance on the Think System I can recall since that of the fictional Professor Harold Hill in The Music Man.  A few impressions, likely none you haven’t had yourself.

First, the Wall Street Journal was quick to note that the indictment “mark[s] the first time in history that the federal government has brought charges against a former president.”  While true, this is irrelevant.  Federal charges would almost certainly have been brought against then-former President Richard Nixon for his part in the cover-up of the Watergate break-in had he not been pardoned by then-President Gerald Ford.  (Mr. Ford presumably wouldn’t have subjected himself to what he knew would be the ensuing political firestorm if he didn’t think federal charges against Mr. Nixon were in the offing.) 

Next – and as anyone with the barest modicum of knowledge about our criminal justice system understands — Mr. Trump was not – as Republican Speaker of the U.S. House of Representatives Kevin McCarthy tweeted after the indictment was announced – indicted by President Joe Biden.  Mr. Trump was indicted by a federal grand jury of ordinary (an adjective which I concede sounds inaptly deprecating) Floridians who determined from the evidence presented by Special Counsel Jack Smith’s team that there was probable cause to believe that Mr. Trump committed the crimes for which he will be arraigned.  Mr. McCarthy and other Republican officeholders are shamelessly and gutlessly pandering to a rabid and willfully ill-informed political base.  Their assertions about the “weaponization” of our legal system are a despicable betrayal of their official trust.  For Mr. McCarthy to pronounce in the same tweet that he believes in “the rule of law” is execrable hypocrisy.

I have seen liberal legal pundits bemoan the fact that the case has been brought in Florida, since the jury pool will be more favorable to Mr. Trump in Florida than in Washington, D.C.  I’m glad that it has been brought in the Sunshine State.  Since most of the allegedly illegal activities took place in Florida, Florida is obviously the more appropriate jurisdiction from a legal perspective (which is really what matters) but what will also make sense to the average citizen.  From a larger perspective, this prosecution must maintain credibility with the majority of Americans in the face of what will be a concerted effort by Mr. Trump and his cult to discredit it.  Mr. Trump not only has a right to, but America needs him to have, a trial in front of a jury that most Americans will consider balanced (presidents, present and past, have no “peers”).  Mr. Trump is entitled to the presumption of innocence until he is proven guilty.  I will venture that a notably larger percentage of our citizens would harbor doubts about the fairness of any guilty verdict issued by a Washington, D.C. jury than they will about one rendered by a Florida jury. 

Judge Aileen M. Cannon, whom Mr. Trump appointed to the bench in 2020, has been assigned to hear his case.  You may recall that Judge Cannon issued a number of rulings early in the documents investigation inappropriately favorable to Mr. Trump that were later sharply overturned by the United States Court of Appeals for the Eleventh Judicial Circuit, a conservative Circuit.  I find her selection highly unfortunate.  This case deserved the best that the United States District Court for the Southern District of Florida had to offer.  While I saw one legal pundit opine that he considered her suitable, it seems that by her earlier rulings Judge Cannon has proven herself to be incompetent, a partisan hack, or both.  The judge’s ability to influence the trial’s course and perhaps outcome is obvious:  it takes no prescience to predict the coming wrangling between Mr. Trump’s attorneys and federal prosecutors over jury selection, admissibility of evidence, and scheduling (with delay obviously favoring Mr. Trump).  While some legal analysts have suggested that Judge Cannon might be “chastened” by the harsh manner in which the Eleventh Circuit dispatched her earlier rulings favoring Mr. Trump, I am pretty confident that Mr. Smith and his team were disappointed that she has been assigned to preside.

My greatest concern is for the safety and protection of the jury panel.  An article appearing on uscourts.gov, “How Courts Care for Jurors in High Profile Cases,” states, “Federal judges have adopted a wide range of precautions to ensure that juries are protected from threats or harassment in high-profile cases.”  All precautions ever taken to protect federal jurors – and I suspect some new ones – should be employed to provide the panel the most stringent protections in the history of the federal judicial system.  The trial judge should make clear at the outset of the process that anyone that publishes or facilitates the publication of the name of any member of the jury or jury panel will be held in contempt of court – and slapped in jail until the judge would see fit to release them.  (If I were the judge, that would be as long as I could legally justify.) 

Both Mr. Trump and the Republican propaganda machine are in high gear, claiming that Mr. Trump is being treated unfairly as compared to President Joe Biden, whose staff discovered classified documents from Mr. Biden’s days as Vice President at Mr. Biden’s Delaware estate and in his Washington, D.C. office.  I’ve noted earlier in these pages the likelihood that the average citizen will tend to conflate the actions of Messrs. Trump and Biden.  I think there is a substantive difference in the behavior of the two men, but my notions could not be any more irrelevant.  Since Mr. Biden’s activities are being investigated by Special Counsel Robert Hur, a former U.S. Attorney appointed by Mr. Trump, Mr. Biden’s circumstances should be left to Mr. Hur and his team.  I would submit that if Mr. Hur determines that there is evidence that Mr. Biden committed a crime and issues a report, similar to the Mueller Report, implying that he would seek a federal grand jury indictment against Mr. Biden if Mr. Biden was not president, so be it.  If evidence is presented to a federal grand jury after Mr. Biden leaves office and a federal indictment is thereupon issued against Mr. Biden, Mr. Biden will then face a jury.  That’s the way the system works.

But as to Mr. Trump:  Make no mistake; the game is now on.  While the Wall Street Journal declared in a weekend editorial that federal prosecutors “fail to understand what they’ve unleashed,” I – unlike Mr. McCarthy — do believe in the rule of law, and there was obviously enough evidence against Mr. Trump to bring this prosecution.  (On Fox News over the weekend, Trump Administration Attorney General William Barr, who unconscionably defended Mr. Trump in various ways for years, called the indictment “damning.”)  That said, I agree with the Journal that we have now entered a perilous period, but not for the reason it cites.  Assuming that Mr. Trump doesn’t enter a plea bargain – seemingly highly unlikely, given his character – there will ultimately be one of three outcomes here:  a conviction, which probably removes any possibility of his gaining the votes of a sufficient number of swing state swing voters to win the presidency; a hung jury, which I suspect will marginally help him – which, if it does, could be decisive in a close presidential contest; or an acquittal, which will afford him both vindication and seeming proof that the system was, as he has claimed, rigged against him.  The last of these could well win him re-election.  Mr. Conway’s wry observation aside, remember O.J. Simpson; now that Mr. Simpson is on parole after completing his minimum nine-year sentence for armed robbery and kidnapping, I am sure that we are all confident that he has resumed his search for the “real killers” of his wife, Nicole.      

Enough.  As Mr. Trump himself has probably already observed:  We’ll see what happens.   

Honorifics and Beyond

One of the perks of having a blog is the occasional opportunity to vent on matters of personal pique.  You have your own pet peeves; you don’t need mine; feel free to pass this post by.

On May 16, Wall Street Journal Editor-in-Chief Emma Tucker advised the Journal’s readers:

“The Wall Street Journal is eliminating the routine use of honorifics, or courtesy titles, in its news pages ….

[T]he Journal has been one of the few news organizations to continue to use the titles, under our long-held belief that Mr., Ms. and so forth help us to maintain a polite tone. However, the trend among almost all news organizations and magazines has been to go without, as editors have concluded that the titles in news articles are becoming a vestige of a more-formal past, and that the flood of Mr., Ms., Mx. or Mrs. in sentences can slow down readers’ enjoyment of our writing.

For years, we weighed the tradition of using those titles against the need to be attuned to a more modern audience. In the end, we decided that dropping those titles is more in line with the way people communicate. It puts everyone on a more-equal footing and will help make our writing livelier and more approachable.”

As Ms. Tucker indicated, the Journal ceased using honorifics in its news pages on May 18.  Since that time, when one of its news articles alludes to the President of the United States, the initial reference identifies him as “President Joe Biden,” but thereafter, Mr. Biden is merely called, “Biden.”

What Ms. Tucker and her team apparently view as an impediment to reader enjoyment, I consider an enhancement.  What they view as facilitating reader acceptance, I consider a disappointing acquiescence.  What they view as “more-equal,” “livelier,” and “approachable,” I consider a resort to a lower common denominator.  While they consider honorifics to have maintained a “polite tone,” I consider them to maintain a respectful tone – not the same.  While acknowledging that big time journalism must be financially viable if it is to survive, I would suggest that given the demographics of its readership, the Journal is merely bowing to a cruder culture.

While Ms. Tucker was careful to note that the Journal’s discontinuance of honorifics was limited to its news pages (the paper continues to use honorifics in its opinion pages, presumably seeking to maintain an elevated tone where the expression is more likely to incite passions), I would nonetheless maintain that decisions such as that which the Journal has made diminish the level of our discourse.

The manner in which we express ourselves is important.  Decorum counts.  The way one communicates has the power to elevate or diminish the substance of one’s message.  Language matters.  T.S. Eliot defined the man of letters as “the writer for whom his writing is primarily an art, who is as much concerned with style as with content; the understanding of whose writings, therefore, depends as much upon appreciation of style as upon comprehension of content.”  In the public arena, one thrills to the linguistic artistry of an Abraham Lincoln or a Winston Churchill.  I deplore our increasing use of shortcuts and slang.  While I obviously use emojis in these pages as a mechanism to ensure that all reading understand that I realize that what I spout is Noise – and those that know me are well aware that my casual conversation contains expression that would in olden days have had one’s mother reaching for a bar of soap — I most ardently believe that serious issues should be addressed in terms appropriate to their import.

I agree with Ms. Tucker that use of honorifics hearkens back to “a more-formal past.”  I would submit that we are the less for the abandonment of these and other such “vestiges.”  Obviously, language evolves; but there is a difference between purpose and sloppiness.  I am sympathetic to usages that have particular significance – for example, the use of the pronoun, “they,” to describe a transgender person; but I take issue with the use of the plural, “they,” as shorthand to allude to a single person that could be a man or woman (rather than referring to the person as, “s/he” or “him/her”). 

Although I am acutely aware – and sympathize with those readers who have ruefully recognized – that many of the notes in these pages would be significantly shorter if I did away with honorifics and other seeming anachronisms, I hopefully will never resort to that; I believe that the tone one uses when addressing vital issues demands better.  I believe that the only intentional omission of an honorific that occurs in these pages is for Adolf Hitler.  (I have in at least one instance referred to the Nazi leader as “Herr” Hitler; I’d seen in Mr. Churchill’s speeches that he had done so on a few occasions, and decided that if he had not felt the honorific entirely inappropriate, I could employ it at least in the context of a particular post.)  I am close to omitting any honorific for Russian President Vladimir Putin.  Despite my deepest antipathy for former President Donald Trump’s illiberal inclinations and actions, his honorific is safe on this site given his standing as a former president and fellow American – unless he is someday convicted of seditious conspiracy.

As I said:  a venting of personal pique.  Am I a stodgy relic?  Of course.  But you already knew that. 😉