answer: That is certainly a factor, but as former judge Nancy Gartner recently pointed out in The New York Times, defendants on appeal are not expected to jeopardize their chances of a new trial by confessing and expressing remorse. That said, Trump’s contempt for the justice system, his ongoing threats and slander, and his history of inciting a mob to violence (January 6, 2021) all seem likely to warrant a prison sentence.
Questions from readers: We know that there are Republicans who are disillusioned with Trump and don’t want to vote for him in the November election. But do they have any other choice? Most will avoid voting for President Biden. But if they want to vote according to their conservative values, Trump is their only option. What can well-meaning anti-Trump conservatives do with their vote? Is not voting their only option?
answer: Trump is not a conservative. He holds ideas that are completely antithetical to conservative philosophy. He claims to be able to suspend the Constitution, wants to punish Vladimir Putin for his attacks, and has vowed to jail his opponents. If they love the Constitution and the rule of law, these Republicans have no choice but to run with President Biden.
Questions from readers: Can’t the libel and slander laws in the United States be made strong enough to punish those who wrongfully slander a judge? Freedom of speech does not mean the freedom to say anything, especially when it is patently false.
answer: The problem is not the law: judges do not want to sacrifice their own impartiality by suing a party or former party. There are other ways to hold parties and their lawyers accountable, such as using contempt or taking into account the defendant’s threats and slander in sentencing.
Questions from readers: I thought Republicans supported gun ownership for anyone who wanted to own a gun — alcoholics, people with dementia, people under restraining orders, people who are suicidal, people threatening elected leaders, etc. If that was the case, why is Hunter Biden being grilled in court over what seems like a personal tragedy? He wanted to buy a gun and thought his addiction was under control. Holy crap.
answer: Furthermore, this is truly a case of selective prosecution, as gun cases like this are virtually never prosecuted. Expect nothing but hypocrisy from the MAGA crowd, from start to finish.
Questions from readers: What do you think about the military possibilities? [assisting] Is Trump running a dictatorship? This is a serious question.
answer: that teeth This is a serious problem. The military has a deep respect for civilian leaders, which means they are likely to follow ill-advised, misguided, and downright stupid orders (like pulling troops out of Europe). But they also have a deep respect for democracy and the Constitution. I can’t imagine that military leaders would follow an order to open fire on fellow Americans, for example. The fact that we’re even discussing this, and that we expect the military to stop Trump if necessary, is a sign that he should stay away from the Oval Office.
Questions from readers: Why doesn’t the Biden campaign run ads featuring Republicans including Mitch McConnell and Lindsey Graham denounce Trump for January 6th? What about ads of Trump’s crazy speeches (with subtitles)? Or ads of Republicans like William P. Barr declaring there was no sign of widespread fraud in 2020? And most importantly, 24/7 ads about Trump and the president being out of office. Roe v. Wade?Can Fox News keep running these ads nonstop?
answer: The campaign has already done many of these things and will do more. Remember that many people are not interested in television. Many people rarely watch television, and Fox News viewers may not be your target audience. It would be much more effective to air your ads during sporting events or popular daytime television shows (such as “The View”).
Questions from readers: Wouldn’t it be appropriate for Hillary Clinton to attend? [Trump’s] Would it be possible for me to attend the sentencing hearing and give a victim statement on behalf of myself and the American electorate? I’ve heard legal experts say it would be difficult to impose a maximum sentence because there are no concrete victims for this crime. Surely the victims are the American electorate, who were deprived of the information they needed to make an informed judgment in 2016?
answer: The last thing we want is for this to be about Hillary Clinton. It won’t affect Judge Juan Marchan, but the trial will confirm the lie that Democrats are persecuting MAGA leaders.
The contrast between the presidential candidates on the rule of law could not be greater. Biden has not interfered in the Justice Department’s prosecution of his son, avoided condemning selective prosecution, and vowed not to pardon his son. Meanwhile, Trump has threatened retaliation against those who investigated him (including jailing members of the House Select Committee on January 6th) and denigrated the judge and jury at his New York trial. It is impossible to ignore the fact that some candidates have kept their oaths and others have shown they simply cannot keep them.
The New York Times headline was spot on: “Trump’s vow to prosecute rivals puts rule of law to the vote.” The subheading was equally insightful: “Donald Trump’s promise to seek retribution challenges long-established norms. The election may depend in part on what kind of justice system the country believes it has now and what kind of justice system it wants in the future.”
There are a few things worth emphasizing here. First, many readers don’t read beyond the headline, so the key message is conveyed in the headline. Second, the report takes Trump’s words literally and seriously, placing his threat in the context of our justice system and our democracy as a whole. The report didn’t treat it as a “clever strategy” or speculate on whether it would “work.” Third, the article quotes multiple legal experts, including libertarians and pro-Trump conservatives, to explain why personal and politicized prosecutions are dangerous. And finally, the reporters didn’t feel the need to voice the false accusations made by MAGA voices that Biden fabricated the New York criminal trial. They deserve credit for “explaining the stakes” and reporting on Trump’s unprecedented campaign of revenge.
Not only did District Judge Eileen M. Cannon entertain a frivolous motion challenging the constitutionality of the appointment of Special Counsel Jack Smith as another ploy to delay the espionage trial against Trump; three Group of Amicus curiae (or a “friend of the court”) to file briefs on the motion and participate in oral argument, a virtually unprecedented practice.
Fortunately, constitutional law scholar Matthew Seligman has filed a brief on behalf of a distinguished group of former prosecutors, lawyers and scholars opposing Trump’s absurd allegations. Seligman is dismantling the arguments challenging a special counsel.
Defendant Donald J. Trump and his friend They argue that the appointment of Special Prosecutor John “Jack” Smith is illegal. This assertion is patently false. The Appointments Clause of the Constitution authorizes Congress to give the Attorney General, who heads the Department of Justice, the power to appoint “inferior officers”: Article II, Section 2, Clause 2 of the United States Constitution. As the Supreme Court has affirmed, Special Prosecutors, empowered to investigate and prosecute certain criminal cases, are such inferior officers. See Morrison v. Olsen.487 U.S. 654, 670-71 (1988); United States v. Nixon418 U.S. 683, 694 (1974). Congress, in turn, exercised its power under the Appointments Clause, authorizing the Attorney General to “appoint officials to investigate and prosecute crimes against the United States.” 28 U.S.C. § 533. Attorney General Merrick Garland, pursuant to his statutory authority and in accordance with Department of Justice regulations, appointed Special Counsel Smith.
Seligman might have added that Cannon’s decision to entertain such an absurd motion, much less try to hold what amounts to a debate by bringing in outside counsel, is further evidence that she should not be taking on the case — a view shared by lawyers across the board, including Ty Cobb, who represented Trump in Robert S. Mueller III’s investigation.
Every delay or laborious explanation by Judge Cannon is more evidence that she is deliberately helping Trump, that she is incompetent, or that she is procrastinating out of concern for the trial (probably a combination of all three). At some point, Judge Smith should ask for Judge Cannon’s resignation, as she tarnishes her bench with every nonsensical ruling.
We’ll be hosting an online chat next week, so please send us your questions. Questions submitted after next Wednesday will be included in the next mailbag newsletter.
