Part II: Trump has been indicted on federal criminal charges and his case was assigned to Aileen Cannon. Now what?
Courtesy of Teri Kanefield
In Part I (which you can read here), I offered a summary and annotations of Trump’s federal indictment.
No surprise, this weekend, Trump vowed to stay in the race, even if convicted. “I’ll never leave,” he told Politico.
I have said that Trump’s political needs are at odds with his needs as a criminal defendant: Trump can either behave like a normal defendant or he can try to be a right-wing hero and hope that the extremists ultimately gain control.
His behavior this weekend (holding rallies and giving speeches) and the number of Republican elected officials rushing to his defense by repeating his talking points demonstrates that Trump will try to use these criminal prosecutions to solidify his grip on the Republican Party.
Now I’ll answer a few of the questions I’ve been getting.
1. How bad is it that this case was assigned to Aileen Cannon?
Answering this question requires predicting the future, which nobody can do. There are too many variables. I will therefore lay out the future possibilities (and probabilities).
But before we can talk about what might happen, I believe we need to agree on a few facts about the present.
The indictment paints a vivid picture of a person with no control over his mouth who cannot stop himself from spilling his guts to random people about these super cool top-secret defense documents. Trump is not denying the truth of the allegations in the indictment. His strategy is to argue that: (1) he had the right to have the documents and (2) any investigations against him are political witch hunts designed to “rig” the next election against him.
(This is, of course, exactly what he tried to do when pressuring Zelinsky to open an investigation into the Bidens.)
Trump’s “defenses” will not work in court—and are not intended to work in court.
But these arguments will resonate with people in the right-wing media bubble who have abandoned democracy and instead have embraced an autocrat (or “strongman,” or “demagogue,” or whatever you wish to call him.)
People give up on democracy when they believe that they cannot create the country they want to live in using democratic means. Republicans like Tucker Carlson understand that democracy means all citizens can vote, and if all citizens can vote, white men will lose power. People like Tucker Carlson believe that democracy means they will be “replaced” by “others,” so they abandon democracy.
Once you abandon democracy there is only one alternative: autocracy. Sociologist Max Weber said there are three sources of authority for government: (1) Traditional, or monarchy, (2) Rule of law, or democratic governments, (3) what he calls a charismatic leader, or we might call a demagogue or strongman. Because “traditional” takes time to create, if democracy breaks down, only autocracy can fill the void.
People who abandon democracy often select the Leader who they think will represent their interests and will create the kind of nation they want to live in. They look to this Leader to break the rules and deliver the results they want. (Or they just become apathetic and stop paying attention.)
As of right now, Republicans who have abandoned democracy see Trump as the candidate best able to assume the role of Dear Leader. (They will replace Trump with a different autocrat when Trump is no longer around.)
Once people assume American democracy can’t or won’t work, and they accept Trump as Dear Leader, they are willing to accept Trump’s position is that he had the right to take the documents because he is the True Leader. Moreover, those evil Democrats and Trump haters just want to keep him out of office. (Translation: The Democrats are rejecting the True Leader and want to ruin America.)
In other words, Trump’s “defense” makes sense to True Believers.
And now, let’s lay out future possibilities (and probabilities).
Aileen Cannon, remember, was the judge who made wild and improbable rulings on Trump’s behalf when he filed a lawsuit to shut down the investigation into these stolen documents. She was overturned on appeal and was given a smackdown by the 11th Circuit Appellate court. (The Supreme Court refused to hear the case.) To read more on that, click here.
Trump’s case was assigned to Cannon by a computer algorithm. The idea behind computer-generated assignments is that people should not be able to select their judge. Given what is at stake for criminal defendants, it’s particularly important that prosecutors not be able to pick the judge. Moreover, federal judges have been confirmed by the Senate, so they have a special status.
It is possible (but unlikely) that Cannon will recuse herself.
This is from Joyce Vance: If she doesn’t, it is possible that the DOJ can persuade the Court of Appeals to order her to recuse. Joyce Vance personally litigated a few appeals where she asked the Court of Appeals to order a judge to recuse. She cites precedent in which the 11th Circuit ordered “reassignment” where a judge leans so heavily for a defendant they call their objectivity in the eyes of the public into question.
Here we have rather extreme facts: Cannon was willing to invent new rules for Trump because of his status as a former president. Moreover, the appellate court was clearly not pleased with how she handled the Special Master case.
Because of the sensitivity of prosecutors asking for a different judge, Vance suggests the DOJ lawyers will wait for the first bad ruling from Cannon, appeal, and along with the appeal, ask for her recusal.
So will it happen? Will she recuse or be ordered to recuse? Maybe yes, maybe no. We can take bets.
If she is recused and a normal judge is assigned, I would say there is a better than 95% chance that Trump is convicted. (Here is how I got that number: Federal prosecutors have a 95% success rate, and this case is unusually strong.)
Judges like Aileen Cannon, by the way, are why good prosecutors wait to bring cases when they know they have enough evidence to get a conviction. The stronger the case, the less damage a bad judge can do.
Before we get into the worst case scenario, I’d like to remind you of something from my FAQ page:
#8: At least indicting Trump would provide some very solid schadenfreude.
The “indict him right now!” chants are premised on a misunderstanding of what an indictment actually is. An indictment is a formal accusation. It is the start of a long, harrowing process. . . An indictment, does not mean that we all live happily ever after.
Now let’s assume the worst. Let’s assume that Aileen Cannon oversees the case.
Possibility #1: Cannon felt humiliated by her appellate court smackdown, and now she wants to rehabilitate her image, so she will (try to) act like a normal judge.
Judges do not like to be overturned on appeal, and normal judges calibrate themselves to align with the law as outlined by higher courts. The 11th Circuit clearly stated that Trump is not entitled to special rules because of his status as a former president. A normal judge, therefore, would make sure, going forward, not to give Trump special rules because of his former status.
Moreover, judges in criminal cases are more tightly bound by the rules than judges in civil cases because more is at stake. Pre-trial rulings that are unhinged (like excluding evidence that should be admitted) can be appealed. The defense may try to do sneaky things like force the prosecution to reveal the contents of secret documents to the public which could require derailing the case, so stuff like that may need to be appealed. These will be the normal kinds of delays you can expect.
So if Cannon acts like a normal judge, she may sympathize with Trump, and her sympathies may show, but the jurors will be shown all the evidence, they will hear from the prosecution and will render their decision.
If Cannon acts normally, given the strength of this case and the fact that these are top-notch prosecutors, I’d still expect the prosecution to win.
Possibility #2: Cannon remains on the case. She is furious about her smackdown, she believes the appellate court was wrong, and she goes full-on MAGA.
The worst-case scenario was offered by Ken White, who suggested she may care nothing about normal things like her reputation or public confidence in the judicial system.
In that case, she can wait until the jury is empaneled and dismiss the case, and then, because of the rule against double jeopardy, Trump avoids a conviction.
Hardcore MAGA will celebrate. Everyone else will be enraged: He admitted his guilt in an audio recording, and an unhinged judge dismissed the case, so a jury was never able to make a decision. (“Enraged” may not be strong enough.) The public reaction will not be pretty.
At this point, most people (I hope) will turn their rage into meaningful democracy-building action by doing what they can to ensure that in 2024, the party that gave us Donald Trump and Aileen Cannon will be roundly defeated.
(The fact that there is so much at stake suggests that Aileen Cannon may well be ordered to recuse.)
Adding: Yes, there are limited grounds for appeal if she does something crazy like dismiss, but appeals take time, even when they are expedited, and meanwhile, there will be chaos and anger.
Here is how this worst-case scenario could endanger our democracy
There will be some (I can name many of them) who will use their platforms to announce that “This miscarriage of justice means that democracy and rule of law in America is dead.”
See the problem with this? If you believe democracy is dead, why bother voting? The danger is that people will turn their anger into destructive (instead of constructive) actions.
Fact: Democracy and rule of law are flawed because human beings are flawed. Democratic societies will always contain members who don’t like democracy. You can’t get rid of them and remain a democracy. (Before you argue with that statement, consider how you might rid of them. There is no way to eliminate democracy-hating people from a society without abandoning rule of law.)
I have often said that democracy in America will survive if enough voters want it to. People hear this and think I am being optimistic because they miss the significance of the word “if” in that sentence.
If both sides of the political spectrum give up on democracy, democracy will have no chance.
(This is not about “faith,” or “hope,” or “optimism.” This is about concluding that democracy, with all of its warts and flaws, is the best form of government.)
Thus, here is how we get to the worst-case scenario:
- Cannon remains on the case (she may not)
- Cannon throws away her reputation and goes full-on MAGA (she most likely won’t, but she might)
- The fearmongers persuade enough voters that democracy is therefore dead and/or doesn’t work. (I would hope that when the time comes to vote, most people who dislike Trump will have the good sense to vote for Biden, even if they irrationally blame the Biden administration for the fact that right-wing extremism continues.)
Well, nobody ever said that maintaining a democracy was easy.
2. Why hasn’t the DOJ searched Bedminster
Predicting the future is hard. Guessing what the DOJ is doing (and why) is harder because we do not have the information they have.
All I can do is make guesses and your guesses are probably as good as mine. It looks from the indictment that there might be probable cause to believe that there are documents at Bedminster, but for all we know, the DOJ has evidence that those documents are no longer at Bedminster.
Because the nation’s top prosecutors are working on this case, I’d say that there is a very low probability that the DOJ made such an obvious error as failing to search a place where there is probable cause to find more classified documents.
(This is not to say “Don’t worry! The DOJ will succeed!” This is to say there is a low probability that this DOJ, considering the work it has done so far, would make such a glaring error.)
3. What about holdout jurors?
This is the problem we want because it means that the worst-case scenario hasn’t happened.
Hold-out jurors are always a possibility, which is why good prosecutors bring air-tight cases (and brash, arrogant, third-rate prosecutors rush forward before overturning every stone in an investigation.)
Jurors don’t always get it right, but I think most litigators will tell you that they do try. (See, for example, this piece.)
Let’s take the example of the hold-out juror in Paul Manafort’s case. The jury returned guilty verdicts on 8 of the 18 charges. One hold-out juror prevented him from being convicted on all 18 counts.
The holdout juror was not the full-on MAGA juror who said “I did not want Paul Manafort to be guilty, but he was, and no one is above the law.”
When confronted with the evidence, she felt she had no choice but to convict, even if she didn’t want to. The holdout still convicted Manafort on 8 counts.
4. Does the Presidential Records Act offer Trump a Defense?
No. The National Archives did a good explanation here.
I understand that Jim Jordan was on television this weekend telling people that the PRA means that Trump can’t be convicted of keeping secret documents. I am unable to tell whether Jim Jordan is stupid or a shameless liar (or both) but he was spouting legal nonsense.
