Trump’s Attacks on the Rule of Law Will Only Get Worse if He’s Indicted

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“Death & destruction”

When the writer E. Jean Carroll’s case against Donald Trump finally gets into court next month, the jurors hearing evidence that Trump allegedly raped Caroll in a department store dressing room, and then defamed her when she spoke about it, will have their identities hidden from the public. It’s a relatively unusual process. The law—and fairness—prefer that defendants and the public can see who’s doing the judging in grave matters like rape and character assassination. 

But the jurors will be anonymous because if they’re not, there’s too high a risk that Trump, a candidate for president, will intimidate and endanger them. “It bears mention that Mr. Trump repeatedly has attacked courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters,” wrote Senior U.S. District Judge Lewis Kaplan on Thursday. “The point is whether jurors will perceive themselves to be at risk.”

This is actually a shocking and extraordinary ruling from a judge in one of the most high-profile legal cases in America (with stiff competition from grand juries in Fulton County, Georgia, Washington D.C. in the insurrection and coup case, and the Stormy Daniels hush-money case). But Kaplan understands the message Trump and Republicans are sending to anyone who attempts to apply accountability and the law. Try to make the rules apply to us, and you’re next. 

Trump wasn’t indicted this week, despite the timeline he invented to head-fake the news media. (And BTW congrats to the political press for playing right along and ignoring any possibility that Trump could possibly be lying or inciting mayhem. The judge got it!)  

Nevertheless, this is the moment Kevin McCarthy was allowed to stagger into the speakership for. This is why Trumpists allowed him to limp over the line. Even before  knowing the actual evidence against Trump, or what charges might be brought in New York, McCarthy and House Republicans launched an all-out effort to interfere in a criminal investigation and intimidate and smear a prosecutor. 

By now you’ve seen the sordid litany of tactics. As soon as Trump fired the starting gun, McCarthy pledged to investigate Manhattan DA Alvin Bragg. Jim Jordan and others demanded to see Bragg’s evidence and that he testify to Congress on an ongoing investigation. Trump called Bragg, a Black man, an “animal” and followed that with a funny wink suggesting that violence was in the offing. Marjorie Taylor Greene pre-baked some conspiracy theories so that Trumpists can avoid responsibility should any of his supporters heed the nudges to violence. And nearly everyone mixed in some antisemitism, naming an international Jewish bogeyman whom Bragg has never spoken to nor met. 

All of this, again, based on a post from Trump falsely claiming he was about to be arrested. Imagine what’s in store if Trump actually is charged in Manhattan, or Atlanta, in the federal coup case, or in the Mar-a-Lago documents investigation. 

Trump, of course, is in deep trouble with the law while trying to stay out of jail by once again becoming president. One of the disadvantages he suffers against Florida Gov. Ron DeSantis in their possible GOP primary race is that DeSantis runs a government that he can use to enact right-wing policies. Trump, the thinking goes, has a social media account and lots of campaign money, but no way to be seen as a “doer” in the GOP's outrage war. 

But he has half the legislative branch. House Republicans are here to openly attack the rule of law and anyone who dares apply it against him. They’re here to send a signal of intimidation, and, as with Jan. 6, a clear message that violence in its service will be defended. As I’ve written here before, McCarthy’s job relies on him keeping it up. 

Late last night, Trump warned “death & destruction” could result if he’s indicted in the Manhattan case, and referred to Bragg as “a degenerate psychopath” who “truly hates the USA.”

This couldn’t be a more serious moment for the country. It couldn’t be more serious for the press. They must drop the savvy analysis and transmit the stakes of incitement and intimidation of those who would apply the law. As the potential indictments pour in, it will only get worse.

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T.W.I.S.™ Notes

This week in subpoenas, things have gotten really…real. 

 - Privilege, checked 

While everyone was in a Trump-induced freakout over the never-confirmed Stormy Daniels indictment mayhem, things got very serious for Trump in the Mar-a-Lago case. After a ruling by the judge overseeing the grand jury in the case, a flurry of overdrive-urgency late-night activity, and a fast ruling by an Appeals Court, Trump’s lawyer now has to turn over documents detailing a possible “criminal scheme” involving Trump. 

And, Lordy, are there tapes? 

The lawyer is Evan Corcoran. Ordinarily, his communications with his client would be privileged and off-limits to prosecutors or anyone else. But remember how coup architect John Eastman got his emails exposed because there was reason to believe he and Trump did a crime together while trying to overturn the election? Well… that. 

Attorney-client privilege doesn’t apply if the substance is advancing a crime or fraud. And in the Mar-a-Lago case, prosecutors say they have evidence Trump likely lied to his attorneys about the documents he was hoarding at his Florida property. An inventory of documents Corcoran has to hand over include “transcriptions of personal audio recordings” related to representing Trump. 

What’s also remarkable here is how this process went down this week. The Appeals Court asked to rule on Corcoran’s testimony ordered a wild, break-neck schedule, forcing lawyers to pull an all-nighter to file their briefs by 6 a.m.. Hours later, the court blew up Trump’s attorney-client privilege. Why the urgency? It could be mundane impatience on the part of judges, or it could be the kind of rush that only comes from national security information being loose in the wild. We don’t know. 

All of the substance here is happening under seal, so no one outside the room knows for sure what potential crimes blasted Trump’s attorney client privilege, or what documents and testimony Corcoran might have to produce. Testimony could happen as soon as today. But when a grand jury pulls in your lawyer because you may have involved them in a crime… lordy.

- Our American dozens

Six more people affiliated with the Oath Keepers extremist group were convicted in federal court this week for various roles in the chaos of Jan. 6. Four were found guilty of obstructing an official proceeding, obstructing officials, and other charges. Two others were convicted of lesser charges. 

Jurors heard how members of this group marched on the Capitol in a “stack formation” after Oath Keepers founder Stuart Rhodes texted their group chat that Vice President Mike Pence wouldn’t help overturn the election. They went past the cops and inside the Capitol, where some in the group went looking for then-Speaker Nancy Pelosi. 

That makes 23 Oath Keepers who’ve been convicted or pleaded guilty, some of them to seditious conspiracy, for their roles in Jan. 6. Six more are awaiting trial, according to DOJ. 

- Moore or less

What will the Supreme Court do with Moore v Harper, the “independent state legislature” case threatening to entrench gerrymandering and upend elections in dozens of states? The Biden Administration filed a brief this week asking the Justices to abandon the case, now that the GOP-dominated North Carolina Supreme Court has reheard two related cases on the state’s electoral map. Others, like UCLA elections law expert Rick Hasen, who you heard from last month, think it’s better for the court to decide it now, instead of waiting until a crisis moment when someone challenges the results of the 2024 election.  

De-termine supreme

Early voting is underway in the biggest-deal election of 2021. This one will determine the majority of the Wisconsin Supreme Court, where huge issues like partisan gerrymandering and, almost definitely, litigation around the 2024 election will ultimately be decided. Liberal Milwaukee County Judge Janet Protasiewicz is running against conservative former Supreme Court Justice Daniel Kelly. 

The winner on April 4 will determine the partisan divide on Wisconsin’s 4-3 Republican dominated court. Biden won Wisconsin by less than 21,000 votes, and the state’s MAGA GOP has been competing for most-conspiracy-crazed ever since. There’s also a potential statewide abortion ban at stake. Even Barack Obama is getting involved. This judge race is a big deal!

“We truly believed in that fucker… fuck that guy.” - Proud Boys sedition defendant Ethan Nordean, aka Rufio Panman, texting about Trump on Inauguration Day, 2021.

Queue anon — Has anyone checked in on Arizona Republicans lately? After comprehensively (but narrowly) losing the midterms, the state’s Trumpist GOP has been hard at work coming up with new ways to retrofit real elections into the fantasy stolen one. The latest? SB 1695, courtesy of GOP Sen. Jake Hoffman. It provides for an election do-over if 1,000 voters in Maricopa County, or 250 in smaller counties, have to wait in line to vote for more than 90 minutes. Practical!

Meanwhile, failed governor candidate and mean-girl fashion critic Kari Lake went 1 for 7 in the Arizona Supreme Court. The court denied several of Lake’s appeals, including one hoping to overturn the 2022 election. But they did send back to a lower court a question of whether Maricopa County followed signature-verification rules on absentee ballots. Kari lives on.  

Slow and low — Is Rudy Giuliani slow-walking the defamation case two election workers filed against him? Rudy appeared in federal court this week to answer for canceled depositions and missing documents in a lawsuit brought by former Fulton County, Ga. election workers Ruby Freeman and her daughter, Wandrea “Shaye” Moss. Trump supporters harassed and threatened the two after Trump, Giuliani and several right-wing networks repeatedly accused them of mishandling ballots on election night in 2020 (pgs. 280, 293, and 305).

Rudy said he missed depositions because of a bad case of the flu followed by a “humanitarian” trip to East Palestine, Ohio after the train crash. Evidence in the case is due in May. 

Legal Findling — If you think the Manhattan DA has been a big deal, wait until Fani Willis, Drew Findling, and Fulton County enter the chat. Findling, an Atlanta criminal defense legend (<--don’t miss this piece!) known as the “#BillionDollarLawyer, went on TV this week to talk about his defense of one Donald J. Trump. It’s worth watching to get a sense of Findling’s style, tactics, and spin. He just filed a motion trying to quash the entire special grand jury report recommending charges in Georgia, and also to kick DA Fani Willis off the case. And his client hasn’t even been charged! Anyway, I think America is going to get to know Findling pretty well, pretty soon.

Another moment of choosing for the GOP.

FROM ASSOCIATED PRESS

Fox News is suddenly interested in freedom of the press. 

FROM THE GUARDIAN

Pavlov’s press corps.

FROM EMPTY WHEEL