Arraignment Tuesday Reads

Happy Arraignment Day!!

There will be lots of cable news talk today and tonight, but there probably won’t be much excitement at Trump’s arraignment. There are pro- and anti- Trump people demonstrating outside, but we’re unlikely to see another January 6. 

Odette Yusef at NPR: Trump is calling for support for his court appearance. The far right may stay away.

When former President Donald Trump posted to his Truth Social platform on Friday, “SEE YOU IN MIAMI ON TUESDAY!!!,” the call eerily echoed the tweets with which he summoned his supporters to Washington, D.C., in the lead-up to Jan. 6, 2021. Then, Trump’s tweet helped to draw tens of thousands to the nation’s capital.

For some, it was interpreted as an invitation to plan and engage in collective violence. But extremism researchers say that this time around, they are not seeing signs of similar, large-scale and detailed planning around Trump’s expected courthouse appearance.

“One of the most striking things that stuck out about January 6 that we’re not seeing now are logistical and tactical maps of buildings, facilities, areas, exit routes,” said Benjamin Decker, CEO of Memetica, a threat intelligence group.

Decker said violent rhetoric on fringe platforms such as far-right Telegram channels, 4chan, Gab, Truth Social, Gettr and Patriots.win has spiked since Trump’s indictment last week. He said it has been particularly concerning to see some of this language targeting Attorney General Merrick Garland and special counsel Jack Smith. But he said the appetite to participate in a mass, in-person event is muted.

“There is a lot of paranoia among Trump supporters about getting arrested,” he said. “And the cost of arrest and potential jail time, that’s still going to deter people … who may be on the fence about being there to exercise their First Amendment rights or being there to participate in mob violence.”

On Monday, a rally in Miami organized by former Florida congressional candidate Laura Loomer seemed to attract more reporters than participants.

Jared Holt, senior research manager at the Institute for Strategic Dialogue, said a handful of other groups appeared to be organizing rallies for Tuesday at the courthouse. But he noted they were attracting skepticism from doubters who accuse the organizers of setting up a “false flag” or federal honeypot trap intended to arrest Trump supporters.

So if there is any violence this afternoon, it will probably be from lone wolves, not organized groups. Let’s hope things stay peaceful.

This is from David Kurtz’s Morning Memo at TPM.

Here’s What’s Going Down Today

Arraignments are boring and perfunctory, so don’t expect any big news today when Trump appears in federal court in Miami at 3 p.m. ET. No cameras or recording devices, so we won’t see it. Still, it’s an important moment packed with symbolism.

Magistrate Judge Jonathan Goodman will preside over the arraignment, not U.S. District Judge Aileen Cannon.

As it stands now, Trump is expected to fly back to Bedminster after the court appearance for a fundraiser and a televised speech.

I wonder who is televising the speech? I’m going to give that a miss and just look at the clips on Twitter.

Also from the Morning Memo, a discussion of how Trump is reacting to getting his comeuppance: fantasizing about revenge.

The organizing principle of Trump’s re-election campaign first became apparent back in March with his chilling “I am your retribution” speech at CPAC.

I keep coming back to this theme because it animates so much of his rhetoric and has been adopted in both obvious and subtle ways by his closest adherents, and because it poses perhaps the most dire threat to the rule of law if Trump is re-elected.

I bring it back up today because his revenge fantasy is ripening and deepening in alarming ways.

In the immediate aftermath of his indictment in the Mar-a-Lago case, Trump has returned it to the forefront of his own rhetoric, and it’s being picked up again by his boosters. A few of the most egregious examples:

  — Trump warned Monday that if re-elected he will name a special prosecutor to “go after” Joe Biden and his family.

“I WILL APPOINT A REAL SPECIAL “PROSECUTOR” TO GO AFTER THE MOST CORRUPT PRESIDENT IN THE HISTORY OF THE USA, JOE BIDEN, THE ENTIRE BIDEN CRIME FAMILY, & ALL OTHERS INVOLVED WITH THE DESTRUCTION OF OUR ELECTIONS, BORDERS, & COUNTRY ITSELF!”

 — Trump has targeted Special Counsel Jack Smith’s wife, an echo of what he previously did to deputy FBI Director Andrew McCable’s wife….

By this point, I feel sure you know the many levels these attacks play at: They effectively cow investigators and prosecutors by raising the price and the pain of enforcing the law against him; they keep everyone involved in holding him accountable looking over their shoulders at what happens if Trump wins in 2024; they unleash the less stable and more deranged among us against Trump’s perceived enemies; they are the rallying cry not just for his supporters at election time but for his appointees and subordinates and acolytes throughout government at the local, state and federal level.

Trump’s revenge fantasy – his stated desire to abuse the powers of the office to inflict pain on those who oppose him – is now more toxic, pervasive, and sinister than at any point in his presidency. It is the rocket fuel to his quickening lurch toward fascism, not only because it appeals to his strongman tendencies, but because now as he faces criminal charges on multiple fronts it is inextricably a part of protecting and preserving his own liberty.

Trump is an increasingly desperate man, and he’s telling us exactly what he will do.

In other words, it’s going to get really ugly.

As Dakinikat posted yesterday, pro-Trump Judge Aileen “Loose” Cannon is still assigned to the trial, even though she’s not handling the arraignment. The New York Times’ Charlie Savage has a piece on how Cannon cold screw things up for the DOJ: How a Trump-Appointed Judge Could Influence His Documents Case.

Jack Smith, the special counsel handling the documents investigation into former President Donald J. Trump, vowed to seek “a speedy trial.” But that will be up to Judge Aileen M. Cannon, who will wield considerable power over its calendar, evidence and jury.

Last year, Judge Cannon, a Trump appointee, briefly disrupted the documents investigation by issuing rulings favorable to him when he challenged the F.B.I.’s search of his Florida club and estate, Mar-a-Lago, before a conservative appeals court ruled that she never had legal authority to intervene.

It remains to be seen how she will handle her second turn in the spotlight. The scope of her role before the trial also is unclear: She is not presiding over Mr. Trump’s initial hearing on Tuesday, and could refer some pretrial motions to a magistrate judge who works under her. But here is a closer look at how her decisions as the judge presiding over the trial — like on what can be included and excluded — could affect the case.

First, she could slow the case down by supporting Trump’s pointless motions. Another problem will be how she handles the classified documents:

Before the trial begins, there is almost certain to be extensive fights behind closed doors over the use of classified evidence, a matter governed by the Classified Information Procedures Act, or CIPA. The law was intended to reduce the opportunities for so-called graymail in criminal cases involving national security, in which defendants threaten to expose sensitive secrets unless prosecutors drop charges against them.

One potential issue: whether the government has to publicly expose all 31 classified documents that are the basis of the 31 counts against Mr. Trump for illegally retaining national-security secrets. Their contents are key evidence for whether they qualify as the type of information protected by the Espionage Act.

CIPA establishes court procedures to sometimes shield sensitive information from the public, including by redacting some documents or substituting summaries. But defense lawyers can argue that they need to discuss their full contents in open court for the trial to be fair.

Read more about this aspect at the link. Another issue could be the attorney-client privilege decisions that have already been decided by a federal judge:

During the investigation, Judge Beryl A. Howell of the Federal District Court for the District of Columbia ruled that the exception applied, forcing Mr. Trump’s lawyers to provide information to the grand jury. But Judge Cannon is not bound by Judge Howell’s decisions when it comes to what information should be presented to a jury.

During pretrial motions, if Mr. Trump’s lawyers ask Judge Cannon to suppress the evidence to protect attorney-client privilege and she does so, prosecutors could appeal — but that would further delay the case.

Other issues discussed in the article: Trump team claims of “prosecutorial misconduct,” jury selection decisions, ‘Rule 29’ Motions to Acquit, and the possibility of a hung jury. Read more details at the NYT link.

Judge Cannon could still recuse herself, but that’s probably unlikely. It will be interesting to see how the DOJ deals with her.

One serious problem for Trump is that he is having a hard time finding lawyers to defend him. Hugo Lowell at The Guardian: Trump finds no new lawyers for court appearance in Mar-a-Lago case.

Donald Trump is expected to be represented at his first court appearance to face federal criminal charges for retaining national security materials and obstruction of justice by two of his existing lawyers, despite trying to recruit a local Florida lawyer willing to join his legal defense team.

The lawyers making an appearance with Trump on Tuesday will be the top former federal prosecutor Todd Blanche and the former Florida solicitor general Chris Kise, according to people familiar with the matter. Trump’s co-defendant, his valet Walt Nauta, will be represented by Stanley Woodward.

Trump and his legal team spent the afternoon before his arraignment interviewing potential lawyers but the interviews did not result in any joining the team in time for Trump’s initial court appearance scheduled for 3pm ET on Tuesday after several attorneys declined to take him as a client.

Trump has also seemingly been unable to find a specialist national security lawyer, eligible to possess a security clearance, to help him navigate the Espionage Act charges….

After interviewing a slate of potential lawyers at his Trump Doral resort, the former president settled on having Kise appearing as the local counsel admitted to the southern district of Florida as a one-off, with Blanche being sponsored by him to appear pro hac vice, one of the people said.

Here are the attorneys who turned Trump down.

Among the Florida lawyers who turned down Trump was Howard Srebnick, who had expressed an interest in representing the former president at trial as early as last week in part due to the high fees involved, but ultimately was not allowed to after conferring with his law partners, the person said.

The other prominent lawyer who declined to work with Trump was David Markus, who recently defended the Florida Democratic gubernatorial candidate Andrew Gillum against charges that he lied to the FBI and funnelled campaign contributions into his personal accounts, the person said.

Trump and his team have interviewed the corruption attorney Benedict Kuehne, who was indicted in 2008 for money laundering before the charges were dropped, the person said. But he has his own baggage as he faces disbarment for contempt of court in a recent civil suit he lost.

The other interviews are understood to have been with William Barzee, as well as Bruce Zimet, the former chief assistant US attorney in Fort Lauderdale and West Palm Beach.

Hugo Lowell notes that lawyers are concerned about his reputation for being a nightmare client and their concerns that defending Trump could damage their own reputations. They also have to be aware that Trump has lied to and manipulated his attorneys.

Trump is said to still be searching for a lawyer in the mold of Roy Cohn, the ruthless New York fixer who defended and mentored him before he was later disbarred – and the fear of potentially being asked to take similar actions has been a persistent issue.

That fear has loomed large for numerous lawyers Trump’s advisers have contacted, the people said, in particular after Trump might have made Evan Corcoran, another former lawyer who withdrew from his defense in the Mar-a-Lago documents investigation, into a witness against him.

Marcy Wheeler has a post at Emptywheel about Trump’s need for a lawyer who has or would be able to obtain top secret clearance: Trump Needs Cleared Lawyers, Not Just Any Lawyers.

Trump needs cleared attorneys, and he should (finally) have the lawyers with Espionage Act experience that might have minimized some of the risk he currently faces.

When courts deal with classified documents like this one will, the judge does not need clearance. (This is a separation of powers issue; members of Congress similarly don’t need clearance.) But the lawyers do. At least one and preferably three of Trump’s lawyers will need to be cleared at the elevated levels the FBI Agents who did the search of Mar-a-Lago had to be read into to even conduct the search. As it was, Trusty was Trump’s only attorney with clearance, and he just split.

Not all lawyers want to go through the trouble of getting clearance. Some — possibly including Chris Kise, was a registered agent for Venezuela in recent years — may not be able to get cleared at that level.

Donald Trump’s trouble finding legal representation is no longer simply the comedy of self-destructiveness it has been for years. Starting today (or shortly thereafter), there will be new obligations and exposures for lawyers representing him.

Trump’s search for a lawyer is not just about finding people who are members of the bar in SDFL. He also needs to find lawyers who are willing to put their security clearance and their reputations at risk on a case where Trump has already been wildly misleading his attorneys.

In this post, Marcy also addresses in detail the ways in which he has lost lawyers by misleading and lying to them, as well as asking them to do illegal things. Read all about it at the link.

More interesting stories to check out

Sam Brodey at The Daily Beast: Dems Have a Trump Indictment Strategy: Shut Your Damn Mouth.

The New York Times: How Trump Plans to Beat His Indictment, Politically.

Barbara McQuade at MSNBC: New indictment proves Trump is a triple threat to national security.

Eric Levitz at New York Magazine: The DOJ Went Easy on Trump for Political Reasons.

Geraldine DeRuiter at The Washington Post: We need to talk about Trump’s bathroom chandelier.