Wednesday Reads

Good Day!!

Studio Scene, by Kayoon Anderson

Today, the press and cable TV are mostly focused on tomorrow’s debate and how Biden can deal with Trump’s insanity and incoherence. I don’t find the discussions about this very interesting. I think Biden knows how to bait Trump, and no one really knows what crazy nonsense Trump will unleash. I hope Biden will mock Trump’s fear of sharks and electric boats; his claims that there’s not enough water in shower heads and dishwashers; and his claim that he got his vast knowledge about “nuclear” by osmosis from his uncle the MIT professor. Trump has absolutely no interest or knowledge about policy and Biden can demonstrate that too.

It is concerning that Trump is claiming Biden will be “jacked up” on drugs, because low information voters appear to be incredibly stupid and will likely believe it. Of course, Trump is the one who could be using drugs as a crutch.

Philip Bump at The Washington Post: No, Biden won’t be on performance-enhancing drugs for the debate.

Allies of Donald Trump have painted themselves into a cognitive corner. President Biden is unfit for office, they argue, because he is so old, and his mental abilities have deteriorated markedly. But then Biden will, say, deliver a State of the Union address in which he is energetic and pointed for more than an hour.

So they modify their claim: Biden is addled and wandering, except when he is given some sort of medication, perhaps a stimulant, that reverses that effect. And here we are, with Trump and those seeking his reelection to the White House demanding that Biden submit to some sort of drug test before this week’s first presidential debate, purportedly in effort to sniff out this theoretical drug.

Experts who spoke with The Washington Post, though, confirm that no such medicine exists.

At the outset, we should recognize that this claim is generally not offered seriously. It is, instead, an effort to escape the aforementioned contradiction, a way to hold both that Biden is incapable of serving as president and yet, unquestionably at times, not demonstrating any such impairment. What’s more, the demand that Biden undergo a drug test is itself not serious. It is, instead, meant to create a condition that allows Trump and his allies to continue to claim that any strong performance from Biden is a function of medication. The result is win-win for Trump, who can blame any loss on this wonder drug.

The Supreme Court is still releasing decisions. Once again, they have held back the one on Trump’s claim of “presidential immunity.” They announced two decisions today.

The Guardian: US supreme court allows government to request removal of misinformation on social media.

The US supreme court has struck down a lower court ruling in the case of Murthy v Missouri, finding that the government’s communications with social media platforms about Covid-19 misinformation did not violate the first amendment. The court’s decision permits the government to call on tech companies to remove falsehoods and establishes boundaries around free speech online.

The court ruled 6-3 that the plaintiffs had no standing to bring the case against the Biden administration, with conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissenting.

The ruling is a blow to a longstanding Republican-backed effort to equate content moderation with censorship. Plaintiffs in the lawsuit, which included the founder of a far-right conspiracy website, argued that the government and federal agencies were coercing tech companies into silencing conservatives through demands to take down misinformation about the pandemic.

Bloomberg Law: Supreme Court Further Weakens Public Corruption Prosecutions.

The US Supreme Court again pared back a public corruption law, this time saying that state and local officials who accept “gratuities” aren’t covered by a federal bribery statute.

The 6-3 ruling by Justice Brett Kavanaugh on Wednesday was the latest in a string of cases cutting the reach of federal corruption laws and prosecutorial discretion to bring charges against government officials.

Woman reading in garden. Ignacio Díaz Olano

In the latest case, Snyder v. United States, the justices said a law which makes it a crime for certain state or local officials to “corruptly” accept anything of value over $5,000 doesn’t reach gratuities paid in recognition of past actions.

The ruling undoes the conviction of former Portage, Indiana, Mayor James Snyder for receiving $13,000 from a trucking company after it was awarded city contracts.

A contrary ruling had the potential to criminalize “commonplace gratuities” like a Dunkin’ Donuts gift card, Chipotle dinner, or tickets to a Hoosiers game, the court said.

The ruling split the justices along ideological lines. Writing for the liberal justices in dissent, Justice Ketanji Brown Jackson said “Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.”

The justices’ concern over prosecutorial overreach could have implications for a number of criminal cases over the Jan. 6 Capitol riot. The justices in Fischer v. United States are considering whether federal prosecutors went too far in charging some defendants with an Enron-era statute prohibiting obstruction of an official proceeding.

Judge Aileen Cannon held another hearing yesterday in her efforts to waste as much time as possible and prevent the stolen documents case from going to trial. Here’s some of what happened:

Adam Klasfeld at Just Security: Trump’s Mar-a-Lago Search Challenge Flounders: Judge Signals Warrant Passed Muster.

Nearly two years after the FBI’s search of Mar-a-Lago, former President Donald Trump’s effort to suppress the evidence that agents found inside his personal residence and social club appeared to fall flat on Tuesday.

Trump’s attorney, Emil Bove, argued that the search warrant was not detailed enough to survive Fourth Amendment scrutiny.

U.S. District Judge Aileen Cannon pointedly disagreed: “It seems like it is, based on the caselaw that’s been submitted,” she said, minutes before court adjourned.

Though Cannon did not immediately issue a ruling, Trump’s challenge hinges on the “particularity” of the warrant, and her remarks throughout the proceedings left little doubt as to her leanings.

“It’s clearly delineated there to search for documents with classification markings,” she remarked toward the start of the hearing.

Click the link to read more about the hearing.

At Public Notice, Liz Dye wrote about Trump’s claims that he should be able to attack anyone involved in the legal cases against him: Trump asserts constitutional right to harass FBI agents.

In the stolen documents case in Florida, Trump called the special counsel’s motion to stop him from spreading vicious lies about the FBI agents who searched Mar-a-Lago a “naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution.” [….]

In Florida, Special Counsel Jack Smith moved to bar Trump from accusing the FBI agents who executed the search warrant at Mar-a-Lago of trying to assassinate him.

The backstory is that on May 21, Trump claimed to have been “shown Reports” that President Biden “AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE” back in August 2022 when it raided the private club where he was storing stolen government documents.

Sleeping Woman with a Book, by Ferdinand Max Bredt

In fact, the “Report” was boilerplate language from the FBI’s operations order for the warrant, attached as an exhibit to his own motion to suppress the evidence kicked up on that raid. The FBI took great care to execute the warrant at a time when the club was shuttered for the season and there was no prospect that the former president and his family would be there. Nevertheless, Trump and his MAGA henchmen spent several news cycles claiming that President Biden had sent in agents “locked and loaded” ready to shoot him.

Those agents will necessarily be witnesses at the trial (should it ever happen), and yet Trump is falsely accusing them of attempted murder. Two of them were already publicly outed back in 2022 when someone gave the unredacted warrant to Breitbart and a former Trump aide, both of whom published it with the agents’ signatures visible.

After the agents were doxxed, they and their families were threatened and harassed, which influenced Magistrate Judge Bruce Reinhart’s decision to keep under seal parts of the affidavit in support of the warrant.

“Given the public notoriety and controversy about this search, it is likely that even witnesses who are not expressly named in the Affidavit would be quickly and broadly identified over social media and other communication channels, which could lead to them being harassed and intimidated,” he wrote.

Judge Cannon doesn’t seem to think this is a big deal.

Trump insists that his lies about the FBI are “core political speech” protected by the First Amendment. He also deliberately distorts the “heckler’s veto,” as he has done many times before, claiming that he cannot be silenced to prevent foreseeable, violent acts by his supporters. But as the DC Circuit wrote in its order upholding the gag order in the election interference case, “That doctrine prohibits restraining speech on the grounds that it ‘might offend a hostile mob’ hearing the message.” [….]

The DC Circuit judges noted that the trial judge need not find that the defendant’s statements had led to violent attacks in this case, they could infer the danger from attacks on everyone from Atlanta poll workers, to grand jurors in Fulton County, to the jury foreperson doxxed in the Roger Stone case. Applying the standard set out by the Supreme Court in Gentile v. State Bar of Nevada, the judges blessed the gag order based on a finding that Trump’s attacks on witnesses, jurors, and court staff posed a “substantial likelihood of materially prejudicing” the proceedings.

But that may not matter to Judge Aileen Cannon, who showed marked hostility to this (and every other) prosecutorial motion at a hearing Monday in Fort Pierce, where she waved away the ample record of Trump endangering witnesses and law enforcement, as well as an exhibit showing threats to FBI agents by a man who was killed in an attempted attack on an FBI building in Cincinnati just days after the warrant on Mar-a-Lago was executed.

“There still needs to be a factual connection between A and B,” the judge said, rebuffing Assistant US Attorney David Harbach’s efforts to make the government’s case.

“Mr. Harbach, I don’t appreciate your tone,” she fumed in response to the complaint that she wasn’t letting the government articulate its position, according to Just Security’s Adam Klasfeld, who was in the courtroom. “I expect decorum in this courtroom at all times. If you cannot do that, I’m sure one of your colleagues can take up this motion.” [….]

It seems highly unlikely that Cannon will do anything to curb Trump’s speech, until someone else gets hurt — and, if and when that happens, she will blame the government for failing to properly argue in favor of the gag order.

One more on the stolen documents case from Justin Rohrlich at The Daily Beast: New Pics Show Nuclear Secrets Stashed Beside the Diet Cokes at Mar-a-Lago.

On Monday night, following Trump’s latest disingenuous contention—that the FBI agents who seized and reviewed the contents of boxes upon boxes of sensitive materials stored at Mar-a-Lago “failed to maintain” the exact order of the documents within, which Trump now claims could somehow exonerate him—government lawyers filed a scathing response letting the air out of Trump’s contentions.

Nikolai Bekker Portrait of Countess Maria Hilarionovna Worontsov-Dachkova (1919).

Far from a neatly ordered system under which Trump, a notorious pack rat, maintained a precise inventory of important documents, Special Prosecutor Jack Smith, along with prosecutors Jay Bratt and David Harbach, noted the “cluttered collection of keepsakes,” which “traveled from one readily accessible location to another” around the Palm Beach, Florida club.

“[T]his is not a case where reams of identically-sized documents were stacked neatly in file folders or redwelds, arrayed perfectly within a box,” the filing states. “To anyone other than Trump, the boxes had no apparent organization whatsoever.”

Trump kept highly guarded secrets in boxes with “personally chosen keepsakes of various sizes and shapes from his presidency—newspapers, thank you notes, Christmas ornaments, magazines, clothing, and photographs of himself and others,” the government’s filing goes on.

“After they landed in stacks in the storage room, several boxes fell and splayed their contents on the floor; and boxes were moved to Trump’s residence on more than one occasion so he could review and pick through them,” the filing continues. “Against this backdrop of the haphazard manner in which Trump chose to maintain his boxes, he now claims that the precise order of the items within the boxes when they left the White House was critical to his defense, and, what’s more, that FBI agents executing the search warrant in August 2022 should have known that.”

Smith, Bratt, and Harbach included a slew of exhibits to back up their position, with numerous previously unseen pictures of Trump’s decidedly chaotic storage methods. One shows assorted wadded-up golf shirts side-by-side with a folder marked “CONFIDENTIAL.” Another shows extremely sensitive defense-related documents carelessly stacked up on the floor beside cases of Diet Coke, a Hermes tie box, and a “Save America” cap, several toppled boxes with papers, binders, and folders spilling out, and a box containing a Christmas pillow and a random length of bubble wrap, beneath which, as national security analyst and writer Marcy Wheeler pointed out, at least one document prosecutors say was related to America’s nuclear weapons program.

In one exhibit, Smith & Co. provide a new photo of a storage closet at Mar-a-Lago where the contents of at least five upturned bankers boxes can be seen spilling out onto the floor. Several suit jackets in plastic dry cleaning bags hang from a rack above them, a Gibson guitar case leans against the wall, and what appears to be a piece of rococo plaster molding teeters atop a cardboard box nearby. According to the indictment, one of the boxes seen here contained a 2019 document marked “SECRET//REL TO USA, FVEY,” which denotes the Five Eyes intelligence alliance that includes Australia, Canada, New Zealand, the United Kingdom, and the U.S.

Read more and see photos at the Daily Beast link.

This post is getting really long, so I’m going going to end there. I’ll add a few more links in the comment thread. Have a great day, everyone!!