The Week Ahead

June 18, 2023

The last two weeks have been historic. And crazy. There was a wave of optimism as folks began to believe that accountability for Donald Trump might be within reach. The allegations laid out in the indictment, if the government can prove them, make a strong case. Optimism was followed by disbelief and some despair as we learned that federal district Judge Aileen Cannon had been assigned to the case. Trump, as I’ve opined on more than one occasion over the years, has incredible luck in litigation.

But nothing can alter the fact that Donald Trump is now a defendant in a federal criminal case and has been arrested by federal law enforcement.

Alexander Hamilton wrote in the Federalist Papers that “the ordinary administration of criminal and civil justice” will contribute “more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government.” If we can hold the most powerful among us accountable for misdeeds, here grievous ones, it is a sign that our country is strong, despite the weakness of individual leaders.

The Republican response to Trump’s indictment must have the Founding Fathers rolling over in their graves. The NYT detailed the sentiment on the Republican side of the aisle, which includes a full-out assault on the FBI and a commitment from Trump to see Biden prosecuted, promising to appoint a special counsel if Trump regains the presidency to “go after” President Biden and his family. There will be no pretense that DOJ is independent from the White House under a second Trump administration. Trump, supported by underlings like Jeff Clark, the DOJ lawyer who wanted to be attorney general and was willing to abandon the rule of law to get there, will be the one actually weaponizing the federal government as an additional tool for Trump to have in his arsenal. The NYT reports that Clark, whose conduct following the 2020 election makes him seem more likely to become a defendant than an attorney general, is a Trump favorite for a high-level role at DOJ in a Trump 2.0 administration.

What’s happening here is another example of Trump and those around him projecting their bad behavior onto people they view as enemies. Trump complains Biden is using the power of the presidency to prosecute him. Biden has left that process entirely in DOJ’s hands. Trump’s political allies are busy trying to show that Biden’s administration has weaponized the federal government. It has not. It’s Trump who does these things, or contemplates doing them if given the opportunity. His comments about how he would govern in a new administration make clear that he is the one who would be abusing the power of the presidency.

Trump has ever been attracted to the “unitary executive theory” that suggests all power flows from the president. During the Mueller investigation, he and Bill Barr used it to argue a president could never be charged with obstruction of justice. Now it’s being used by Trump, and some of his Republican coreligionists like Ron DeSantis last week, to suggest that a president can, in fact, direct DOJ’s decisions about whom to prosecute. Lock her up. The unitary executive is a monarchist theory of presidential power. It suits Trump, who longs to be an old-school authoritarian ruler with the ability to extinguish his enemies at will. Trump complains that DOJ is under Biden’s control. His “solution” is to propose that, if re-elected, he would control DOJ.

This isn’t just disingenuous behavior—it’s dangerous. Fake allegations of voter fraud were used by Republicans for decades to promulgate laws designed to make it more difficult for people to vote. Trump refined that strategy, arguing that (non-existent) fraud justified his refusal to leave the White House. We can only imagine the use he would make, if given the chance, of his similarly fabricated accusations that Biden is behind his prosecution.

In the week ahead, pay attention to the sharp criticism Trump has been leveling against DOJ, and specifically the FBI. He argues that the nation’s leading law enforcement agency should be defunded, despite the uproar from Republicans when Democrats called for police reform, which was branded as “defunding the police,” and even though every director of the FBI since J. Edgar Hoover, whether appointed by a Democratic president or a Republican one, has been a member of or aligned with the Republican Party. During the Mueller investigation, Trump advanced his criticisms of prosecutors and agents, sometimes calling them out by name, in an effort to deflect from his own misdeeds. If this becomes a campaign issue for Trump, he will claim it is a mandate if he wins.

President Biden has ordered people in his administration to avoid comment on Trump’s indictment—and rightly so. It could form a powerful argument for dismissing the case or an issue on appeal if they did, as well as fueling claims the prosecution is political. That means it’s incumbent upon Democratic voices in the Congress and in the states to point out what Trump is doing. He must not be permitted to get away with it.

A few other things to keep an eye on this week:

Some of you have been dealing with the Republicans’ “Biden Bribery” story, which friends and family are sharing with you as “proof” of Biden’s wrongdoing. Increasingly, it’s becoming clear they were made up. Not that you’re surprised by this—the bribery allegations, that Biden was on tape blah, blah, blah, had the feel of a fabrication from the get-go. For one thing, there were no specifics. The story, as I understood it, went that there was an informant, who said there was a guy, who heard it happen, and it was all on tape. So, pony up the tapes, right? If there’s evidence of a crime, investigate it no matter who it is. No tapes have been forthcoming, and it now looks like the claims are made up.

House Oversight Committee Chair James Comer (R-Ky.) conceded last week, after all of the hullabaloo, that when it comes to the recordings supposedly proving that Biden took $5 million from a foreign national, Republicans “don’t know if they’re legit or not, but we know that the foreign national claims he has them.” In other words, no would have actually heard the tapes or even confirmed they existed. Comer persuaded the FBI to share records reflecting the tip the FBI received with his committee. They showed that in June 2020, an unnamed whistleblower claimed to have paid Biden a bribe several years earlier. Rudy Giuliani shared news that the witness had died. The Washington Post characterized the allegations as “transparently thin,” which seems overly generous. This is beginning to look like a repeat of the failure of Jim Jordan’s weaponization subcommittee, with suspicious timing since these baseless claims were being made in an effort to compete with the news of Trump’s federal indictment. Perhaps we will learn more about this fake news in the coming week, but for those of you who have been trying to do with people you care for who believed yet another politically-motivated fake rumor about Biden from the Trump camp, it’s time to get the truth in front of them.

Something else to look for next week: whether the former president will return to Twitter. No one who spent most of his presidency waking up first thing in the morning and checking to see what damage he did overnight will look forward to that prospect. But there is reporting that his exclusivity agreement with Truth Social, his social media platform, runs out this week. And since Elon Musk has restored his ability to return to the platform, we’ll have to watch and see what happens.

Also in the news this week: A judge in California ordered that disbarment proceedings against Trump henchman John Eastman be livestreamed so the public can view them in real time this Tuesday.

Eastman complained about the ruling to Steve Bannon, saying: “It’s a full-fledged trial. They’re pulling out all the stops. It’s really extraordinary the amount of taxpayer resources that are going into trying to disprove claims that I made, or more importantly that I had no basis whatsoever for making claims that election officials violated the law, acted unconstitutionally in the conduct of the election. So that’s what the trial will be, and the bar is calling me as its first witness on Tuesday, and the judge has ordered that it’s going to be livestreamed so it’ll be quite a media circus, I suspect.”

You’ll recall Eastman was an architect of the fake-slates-of-electors plot. He was forced by the real lawyers in the room to concede the plan was probably illegal and that they would lose in the Supreme Court if the justices were ever called upon to consider the notion. And Eastman could have bigger problems than losing his law license in the offing. He may be a target in Fani Willis’s investigation in Fulton County, and if there’s a large-scale federal conspiracy charge coming with respect to January 6, he would likely be caught up in that unless he decided to cooperate. Every American deserves the opportunity to see this proceeding, as we do with every aspect of the insurrection. Let’s hope a federal judge in Miami takes note.

Finally, next Saturday, June 24, is Dobbs Day, the anniversary of the Supreme Court decision that overturned Roe v. Wade. There will be protests and activism across the country in connection with the loss of women’s rights. There’s a listing of local events across the country here. There’s a national day of action in Washington, D.C. But you don’t have to be in a big city to take action. People who are committed to preserving our rights are gathering in Sauk City,Wisconsin, for instance. Why not plan your own, even if it’s a small get-together with friends?

Do you have plans? Let us know what you’re doing in the comments.

There are a lot of important legal issues ahead of us, including understanding what the government has to prove to make out the retention of documents charge brought against Trump under the espionage act, and lots of procedural issues involving how CIPA works or what pre-trial motions practice looks like in a federal criminal case. I’m so grateful to all of you who are interested in understanding the issues and the process and doing what good citizens do—caring about the future of the Republic. Thanks to all of you for your support.

We’re in this together,

Joyce