Beware a Rat Being Cornered

The justice system roars back, carrying us into a fraught new phase….

Last week in these pages, I wrote about the longstanding and exceptionally dangerous campaign by the Republican Party to co-opt the American judiciary such that it functions as a column in that organization’s brazen march toward authoritarianism in the USA.

That remains so.

But I would be remiss if I did not note that some elements of that judiciary, including some that Team Trump arrogantly assumed were on its side, stood up this past week and announced that they remain committed to the rule of law. It was a beautiful thing to see.

We are still a long way from the dream of Trump being held accountable for his actions of the past six years, and indeed his whole miserable life: criminally, civilly, politically, karmically. But these new developments have brought us closer to that outcome. The danger of right wing control of the courts remains; let there be no mistake about that. But it was cheering to see strongholds of integrity and principle making their presence felt. The danger now is that with the legal pincers closing, Trump—desperate, even panicked, and with dwindling options available to him—will lash out in even more extreme and violent ways. Indeed, we have already witnessed that process beginning. Increasingly Trump is finding himself cornered like the rat he is. And there is no more dangerous animal than a cornered rat.

(Caveat: Except a great white shark armed with an RPG.)

DEAR ME

Over a 36-hour period this past week, Trump suffered three significant legal setbacks.

First, the special master in the Mar-a-Lago documents case, Judge Raymond Dearie, announced that he intended to complete his work by October 7, six weeks ahead of the deadline imposed by Judge Aileen Cannon, the GOP loyalist who granted Trump’s request for his appointment. That was not great for Trump, whose entire spurious plea for a special master was largely just a delaying tactic.

But things got worse when Dearie got to work and on day one grilled Trump’s lawyers, obliterating their nonsensical argument that there was no proof that the documents seized by the FBI on August 8th—documents plainly marked as classified, in some cases at the highest level—were in fact classified. Given that this is a civil case and the burden of proof is on the plaintiff, Dearie informed Trump’s attorneys that if they could not offer such proof, he would have no choice but to side with the DOJ. Or as he succinctly put it: "As far as I'm concerned, that's the end of it." He also shot down Team Trump’s protest that it didn’t want to say whether or not Trump had indeed declassified any of these documents, as he has repeatedly claimed to the press, because that might compromise a litigation strategy in a potential criminal case. Zeroing in on the inconsistency of these two arguments, Dearie quipped, "You can't have your cake and eat it too."

Trump’s lawyers were surely shocked at having to contend with a proper judge, and not a compliant, partisan hack rushed onto the bench by their client in his final days in office.

In the three days since then, Dearie has continued to deal Trump body blows by demanding that his lawyers back up their client’s outrageous claims that the FBI lied about the documents it seized, and that it planted evidence. Those lawyers thus far have been conspicuously silent, presumably because they don’t wanna be disbarred for lying in court.

Such straightforward, common sense adjudicating—the polar opposite of Cannon’s openly biased, gymnastically irrational rulings—was bracing to watch. It also made many— myself included—wonder why Trump’s camp proposed Dearie for the job in the first place (and I’ll confess I was equally puzzled why the DOJ was so quick to agree). Now we know: it appears to have been a massive miscalculation about the judge by the gang-that-couldn’t-litigate-straight that comprises Trump’s legal team. (Reportedly, some of those lawyers thought that Dearie’s record of being “tough” on the FBI during certain cases when he was on the US Foreign Intelligence Surveillance Court meant that he would be an ally against the “Deep State.” Once again we see the pitfalls of being venal pricks who can’t conceive of anyone with actual scruples.)

And let’s not forget that Trump has to foot the bill for the work of this special master, who is daily ripping him to shreds. (Show of hands: Who thinks Trump will stiff him? If not, DM me: I have a bridge to sell you.)

It ain’t over till it’s over, but the whole “special master” ploy looks like it is running aground on the rocky shoals of legitimate jurisprudence. It should never have gone even this far—thanks Aileen!—but Judge Dearie seems to be making short work of this obvious time-wasting tactic.

Score one for the good guys, for a change.

NEW YORK STATE OF MIND

About 24 hours after that cheering news—which unfolded in a Brooklyn courthouse, Judge Dearie’s home turf in the EDNY, about three stops on the R train from where I am writing this—Trump suffered a second resounding defeat across the river in lower Manhattan. (Three more stops on the R, or one if you switch to the N.)

After a lengthy and thorough investigation—so lengthy and thorough that a lot of anti-Trump folks had given up hope—New York’s Attorney General Letitia James announced that the state is bringing a civil suit against the Trump organization that, if successful, will likely put it out of business forever. The grounds are things that have been eye-rollingly common knowledge for years: that Trump, with the assistance of his adult children Uday, Qusay, and Maleficent, has engaged in a systemic, decades-long fraud, alternately overestimating and underestimating his assets in order to defraud banks, lenders, the US government, and American taxpayers, and illegally line his own pockets. What did Ms. James call it? Oh yeah: “a brazen scheme of staggering proportions.”

Among the penalties she is seeking, Trump and his kids would be barred from serving as corporate officers in any New York business, while the Trump Organization would be hit with a quarter billion dollar fine and prohibited from operating in the state—which, by the by, is the world’s financial capital—for five years. As a side effect, the organization will likely find it impossible to obtain loans and credit, effectively driving it out of business for good.

She is also referring the case to the SDNY and the IRS for possible criminal charges against Trump and his kids.

This case, maybe above all others, hits Trump where it hurts the most, and in fact, maybe the only place he really cares about: his wallet. (Dead heat with his ego.) James will still have to make the case in court, of course, but I’ll remind you that in 2018 she took similar action against the equally bogus “Trump Foundation”—for stealing money from a children’s cancer charity (!), or what she called in that case “a shocking pattern of illegality”—resulting in that foundation being permanently dissolved, and the Trumps barred from running a charitable organization in New York state ever again. And that was while Trump was President of the United States.  

So, yeah: Omar comin.’

ELEVENTH HEAVEN

Tish James had already made my day when, that same evening, the 11th Court of Appeals sided with the Department of Justice in its appeal of Judge Cannon’s ruling, tossing out her decision in less than a day’s labors with a withering opinion that essentially dismissed it as a travesty. Better yet, two of the three judges on the appeals court that heard the case were Trump appointees. (The other was appointed by Obama.)

As a result, the FBI and DOJ will regain access to the roughly 100 classified documents the Bureau seized in its August 8th search of Mar-a-Lago, which means that the criminal investigation of Trump’s theft of those materials—reportedly including top secret compartmented information about a foreign government’s nuclear capability—can resume. Which, of course, is as it should be: it was outrageous that Trump was able, even temporarily, to claim ownership of US government documents that he stole, and prevent the government from having access to them. Legal experts tell us that a criminal indictment is almost certain to follow, likely just after the midterms.

As Lawfare’s Ben Wittes likes to say: boom!

So, yes, Donald had a terrible, horrible, no good, very bad day. And as we know, he faces other legal threats as well.

Fulton County (GA) DA Fani Willis may well bring RICO charges against him and his henchmen at the state level for their attempts to overturn the results of the 2020 election in Georgia. The Manhattan County DA Alvin Bragg is in the midst of a criminal probe of Trump—although its status is unclear, and Bragg has been criticized for backing off; even so, the Trump Organization will face criminal trial for fraud and tax evasion in NYC beginning at the end of October, with Donald’s longtime former CFO Allen Weisselberg set to testify for the state as part of his own plea deal. And then, of course, there is the high-profile Congressional probe of January 6th and the Big Lie that led to it, one that is doing significant political damage to Trump with its nationally televised hearings, and may result in further federal charges from the DOJ, which is also conducting its own investigation into the matter.

Of these various crimes, trying to overthrow the US government would seem to be the most towering, but the complexity of the case may also make it the hardest to prosecute…..not to mention the hand-wringing of those bedwetters who are worried about the alleged damage to the republic from putting a former president on trial. (And yes, they can wring their hands and wet the bed at the same time. #metaphormix)

I remain more worried about the damage from not putting him on trial.

Moreover, much of that hand-wringing is dishonest and performative, employed by Republican cynics who would like to use the welfare of democracy as an excuse to protect Trump from prosecution, and themselves from facing up to their own complicity.

By contrast, the Mar-a-Lago documents case seems the most cut-and-dried and both easiest to prove and for the public to grasp. In terms of the damage to the nation, stealing nuclear secrets certainly approaches January 6th, although I think in the end undermining one of the most fundamental tenets of representative democracy—the peaceful transfer of power—still wins the prize. And Trump seems to have done both.

Thanks to Judge Dearie and the 11th Court of Appeals, for once in his life, he may have to pay the piper.

POLITICS BY OTHER MEANS

Which brings us to Trump’s response.

When it comes to the documents scandal, Don continues to reiterate his absurd claim that he waved his magic wand and declassified all this material en masse while still in office. While that is obvious horseshit, none other than Bill Barrhas pointed out that, if true, it would actually be even worse than stealing classified documents in the first place. And per above, it’s telling that his lawyers are unwilling to make the same claim in a court of law.

Still, Trump seems to think it’s a winner, and is clinging to it. Most recently, he impressed even those long inured to his insanity by telling Sean Hannity, on national television:

There doesn’t have to be a process, as I understand it. You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.

Because you’re sending it to Mar-a-Lago or wherever you’re sending it. There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president—you make that decision.

The mind reels.

Many experts, like former FBI special agent turned associate dean of Yale Law School Asha Rangappa, noted that in addition to being batshit crazy, this was also an open confession of guilt—on TV, before an audience of millions—that he knew he was stealing classified documents that he had no right to possess. (Trump also floated the theory—again—that the FBI was really there looking for Hillary Clinton’s lost emails. I shit you not.)

But as we have noted, this whole “classification” thing is a red herring. None of the crimes being investigated as stipulated in the FBI’s August 8th search warrant hinge on these documents being classified: they are sensitive US government property irrespective of their classification, and their mishandling—not to mention theft, and obstruction of a federal investigation into that theft—is punishable under the Presidential Records Act and the Espionage Act.

In Trumpworld, however, none of that matters, for as noted by Peter Strzok—formerly Deputy Assistant Director of the FBI's Counterintelligence Division, and a frequent target of Trump’s ire—this is not really a legal fight for Donald at all but a PR one, aimed at rallying his vanishingly small circle of hardcore deadenders and intimidating the GOP mandarins who fear them. In that regard, this legal jeopardy in some ways benefits Trump, allowing him to play the victim card, which is one of his favorite tricks, and one that his grievance-driven suckers—er, I mean followers—lap up like heroin. (Or maybe oxy is a better comparison.) The DOJ case may even drive some of those who have fallen away right back into his arms, and pull in some of the Trump-curious along with them. So be it. We ought not back off adherence to the rule of law just because some assholes don’t like it.

Certainly Trump intends to drag his feet and file pointless timewasting motions and otherwise gum up the legal process. But that legal maneuvering is aimed as much (or more) at running out the clock in hopes of a GOP sweep in the midterms as it is at any hope of a courtroom triumph. In the end, Trump seeks a kind of power that is beyond the reach of the law. He always has, as a businessman and now as a politician and would-be tyrant.

And there are no depths to which he will not sink in the endeavor.

STAND BACK AND STAND BY: THE SEQUEL

Faced with this kind of legal jeopardy, Trump is becoming more and more radical and desperate—the aforementioned cornered rat. While throughout his life he has, justifiably, always been confident that he can cheat the system, Trump seems rational enough to know that he is in real trouble now, and is therefore resorting to ever more extreme measures to stay out of jail, and keep his ill-gotten gains, and above all regain the presidency.

Both Trump and his designated bootlicker Lindsey Graham have, in the past two weeks, gone on national television and essentially threatened street violence from MAGA Nation should he be held accountable in a court of law. Graham kicked it off on Fox News’ “Sunday Night in America” when he said: “ If there is a prosecution of Donald Trump for mishandling classified information after the Clinton debacle… there will be riots in the street.” (I already dissected the wildly dishonest and inaccurate comparison to Clinton here, if you wish to review.) Under fire for those remarks, Graham retroactively tried to frame them as mere prediction and not a threat, but that was patently disingenuous, and the damage was already done. (“The jury will disregard.”)

While stopping short of endorsing violence, I want to remind Lindsey that there are also going to be riots in the streets if Trump is not prosecuted. Just a prediction, Lady G.

As for Trump himself, there was no such backpedaling or ex post facto attempt at qualification. Here’s what he said, speaking to his toady Hugh Hewitt, as recounted by The Atlantic’s David Graham, in a piece titled with a phrase that has been on many a pundit’s lips of late: “Nice Democracy You Got Here. Shame If Something Happened To It.”

“I don’t think the people of the United States would stand for it,” Trump said. “I think if it happened, I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”

The implication was clear enough that Hewitt felt the need to throw Trump a preemptive lifeline: “You know that the legacy media will say you’re attempting to incite violence with that statement.”

“That’s not inciting,” Trump replied. “I’m just saying what my opinion is. I don’t think the people of this country would stand for it.”

Stand back and stand by indeed.

Then there was the instantly notorious rally in Ohio. Ostensibly there to stump for shitbag GOP Senate candidate JD Vance (by sadistically humiliating him for “kissing my ass”), Trump openly embraced the batshit QAnon conspiracy theory. (He had previously shared on social media an illustration of himself wearing a QAnon lapel pin, with the Q slogan, “The Storm Is Coming.”)

Here are a few excerpts from the speech, as recounted in Rolling Stone, translated from the original German:

“We no longer have a border. Our country is being invaded. It’s an invasion by millions of illegal aliens,” Donald Trump said at his Saturday night rally, using the Great Replacement Theory’s racist “invasion” language, favored by violent white nationalists. “The economy is crashing. Your 401(k) is collapsing,” Trump told the crowd. “Shooting, stabbings, rapes, carjackings are skyrocketing.”

(Trump) complained that Jan. 6 witnesses are compelled to turn on him. “They take good people and they say, ‘You’re going to jail for 10 years … unless you say something bad about Trump. In which case you won’t have to go to jail,'” he said.

“They spied on my campaign. And nobody wants to do anything about it. Can you imagine if I spied on the campaign of—forget Biden—how about Obama’s campaign? Can you imagine what [the penalty] would be? Maybe it would be death. They’d bring back the death penalty,” Trump said. Later, Trump endorsed punishing drug dealers and human traffickers with the death penalty.

“I don’t know if we’ve had a more radicalized or dangerous time in our country,” Trump said. Returning to his argument that America is falling apart, the former president zealously recited the details of gruesome crimes allegedly committed by immigrants. The hate continued when Trump mocked trans women in sports.

You get the idea. And all of this was set to a QAnon anthem with its own weird history.

The image of hundreds of Q-believing Trump supporters with arms outstretched in a Nazi-like Bellamy salute—with the addition of the Q-specific index finger—was chilling of course. (Conservatives: please cease pearl-clutching over left-wing comparisons of Trump to Hitler. While shit like this continues to go on, Godwin’s Law continues to be in abeyance.) Because as laughable as it is, QAnon is genuinely dangerous. The litany of its believers who have alreadycommitted violence on Trump’s behalf is long and worrying, and it’s likely to accelerate from here. Particular with Donald pouring fuel on the fire.

(You can watch and listen to the whole bizarro scene here.)

As The Atlantic’s Tom Nichols points out, Trump does know how to stump effectively for a downballot candidate, when he wants to. But that was not what he did in Ohio. What he did there was “play creepy music and present (himself) as the leader of one of the most unhinged crusades of modern times.”

That kind of rally is not meant to gather voters. Instead, it’s meant to recruit a mob and let the rest of the country see who’s on your side if you are threatened in any way.

Nichols writes that Trump’s “embrace of the QAnon conspiracy theorists represents a new expansion not only of Trump’s cult of personality, but of his threats to sow violence.”

Despite his seeming inability to remember anything from one thought to the next, Trump has a kind of lizard-brain awareness of danger—only to himself, of course—that guides him when he’s faced with threats. His reflex in such situations is to do whatever it takes to survive, including bullying, lying, threatening, and allegedly breaking the law.

Initially, of course, Trump only winked at the QAnon movement, accepting its support in the same way that he accepted, without acknowledging it, the support of groups such as the Proud Boys. That last microgram of hesitancy is now gone.

Why is Trump doing this? It would be easy (and reassuring) to assume that he has exhausted all his other reservoirs of narcissistic support, and now all that’s left is to pull in the most conned marks in modern American political history and bask in their adulation while emptying their pockets. I think we have to prepare, however, for a worse possibility: With many of his previous supporters in groups such as the Oath Keepers lying low after January 6, Trump is making a show of recruiting from a movement whose members might include people willing to do violence on his behalf.

Nichols concludes: “I didn’t think American politics could get much darker, but here we are.”

CERTIFIED PUBLIC ACCOUNTABILITY

To reiterate: the legal setbacks Trump suffered this week do not mean that the right wing campaign to obtain a chokehold on the judiciary has failed. On the contrary: they will only spur the authoritarian Republican movement to work ever harder to ensure that in the future the bench is filled with Aileen Cannons and not Raymond Dearies. And they are already prompting Trump and his allies to seek extrajudicial, even violent means to advance his cause.

And Trump might yet beat all these raps, as he has done his entire life, despite a resume of fraud, malfeasance, and other crimes that would impress Charles Ponzi. Even if he is charged, tried, and even convicted, it might not derail his political career. (“I could stand in the middle of Fifth Avenue….”) We might witness the baroque sight of the nominee of one of our two major parties running for president while under indictment, or even after being convicted of major crimes, and or even while incarcerated (presumably wearing an ankle monitor and under house arrest in Mar-a-Lago, given the security considerations surrounding a former head of state). He might even win while under those conditions, making him our first ever Felon-in-Chief.

Anything is possible.

Alternatively, Trump might just wreak havoc with our electoral system, by running and losing for example, and—again—refusing the accept the results, rallying his Kool-Aid drunk followers to acts of extreme political violence, protected by their cowardly, cynical enablers in Congress. He is clearly laying the groundwork for that possibility right before our eyes.

I am encouraged that we just saw the justice system function properly and, in some small way, begin to make Donald Trump experience something he never really has experienced in all of his 78 years: accountability for his actions. I remain worried that he has no intention of facing that accountability, and what he will do to avoid it, and of our fellow Americans who will happily abet him.

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Photo: “The Trump Rat,” formally known as Castigat Ridendo Mores (“Morals can be corrected with ridicule”), by New York artist and gallery owner John Post Lee, in Dupont Circle, Washington DC, August 2017. Credit: The Hill.