(🧵) Please RETWEET this thread on what America can expect over the next month—which will be as consequential a time in US legal and political history as we’ve seen in decades.
As a NYT-bestselling Trump biographer and former criminal defense lawyer, I’ll explain what to expect.
As a NYT-bestselling Trump biographer and former criminal defense lawyer, I’ll explain what to expect.
1/ First, it is important to understand that the legal strategy that Donald Trump, his legal team, and his allies on the federal bench—most notably, Judge Aileen Cannon and SCOTUS Justices Alito, Thomas, Gorsuch, and Coney Barrett—are pursuing is an ingenious one. And it’ll work.
2/ But note also that this strategy got two profoundly important assists from individuals who very much want what *anyone* who cares about U.S. rule of law wants: for all four pending Trump criminal cases to be heard before the election so we can have a fully informed electorate.
3/ Because state and federal criminal cases—Trump has two of each in four total jurisdictions, adding up to 88 felony charges—are initiated by grand juries (a group of citizens) and decided by petit or trial juries (a group of citizens), no MAGA can validly support a trial delay.
4/ In other words, if these cases are as bankrupt from an evidentiary standpoint as MAGAs claim; if MAGAs believe, as they say they do, that citizens should decide the fate of Donald Trump; that is *exactly* what our jury system does and Trump will be acquitted of all 88 charges.
5/ But as we all now know, it’s almost certain that only one set of felony charges—34 felonies in a New York state court—will go to trial before the election, a shocking series of events given how quickly other high-profile criminal cases having been moving (e.g., Bob Menedez’s).
6/ And this was the plan all along. Donald Trump, his legal team, and his allies in what *MAGAs* would have to call the juridical Deep State—judges with permanent positions in government—understood early on that at least *one* trial would need to go forward before the election.
7/ One trial would need to proceed because it’d be impossible to block all four; because a lengthy trial in one case would screw up plans for court and trial dates in the others; Trump likely *did* want a trial to rile up his followers—*as long as* he knew he wouldn’t go to jail.
8/ There are other reasons going to one trial—as long as it was the right one—worked for Trump. For instance, a hung jury in that one trial would likely lead to a pre-election retrial, further making impossible any other trial dates in the remaining three state and federal cases.
9/ Trump needed one trial to better explain why he would avoid *any* questions regarding *any* cases (beyond delivering rants during which no questions were taken).
He needed the (false) rhetorical throughline of supposed Biden-orchestrated “election interference” via “lawfare.”
He needed the (false) rhetorical throughline of supposed Biden-orchestrated “election interference” via “lawfare.”
10/ There are more esoteric reasons *one* trial—again, as long as it was the right one—benefitted Trump. For instance, he uses lawyers (his own and those of witnesses favorable to him) as a covert communications network, so having an active pre-election case could aid with that.
11/ He also wanted to be able to go into the general election either saying Biden “had his shot at him and missed”—an acquittal—or that, even though he had been convicted, Americans still loved him, justifying the erasure of all his other cases as “asked-and-answered” questions.
12/ So before we dive deep into the New York state case and its likely resolution, let me return to the two major errors made by those who believe in rule of law that helped ensure that the Trump plot to only go to trial pre-election on one case—the Manhattan case—would succeed.
13/ First, DOJ Special Counsel Jack Smith decided to bring the stolen classified documents case—in which Trump faces a maximum sentence of 435 years in prison (not a typo)—in FL, not DC. I said at the time that it was a strategic error, and it turned out (sadly) that I was right.
14/ But Smith didn’t make his decision for no reason. DOJ believed that while DC would offer far more favorable judges and juries, to bring a case in DC would require focusing on the Theft (and it *was* a Theft) of classified documents, rather than merely their illegal retention.
15/ Why is that? Well, because the Theft of the documents occurred in DC; their retention occurred primarily if not exclusively in FL. So if DOJ brought the arguably much-easier-to-prove “retention” version of the case in DC, Trump could challenge *venue*—which could take months.
16/ As I have been saying for years now, *in cases where the defendant is a politician especially*—but to a lesser extent, as I saw in my own criminal trial practice, in *all* cases—media coverage of a high-profile criminal case can have a real effect on prosecutors. Here is why.
17/ In many states, prosecutors and judges are elected—which means they care what the public thinks, and know the public (as to criminal justice) is habitually *guided about by the nose* by major media. Even where appointed prosecutors are involved, some have political ambitions.
18/ In a historic case like this, which has been (ironically, but also smartly from a strategic standpoint) politicized *exclusively by the defendant*, the false claim that the case is politically motivated causes judges and prosecutors to treat the defendant with *kid gloves*.
19/ That’s right: Trump is falsely claiming Biden (who has nothing to do with any of these cases) is involved in them *intimately*—despite Trump *also* claiming Biden has dementia and doesn’t even know where he is—not just to score political points against his political rival...
20/ ...not just to take the sting out of a conviction, but also to—as they say—work the ref: make judges and prosecutors so scared of harassment, violence, career assassination or professional discrediting as political actors that they treat him *better* than any other defendant.
21/ I bring this all up because it helps explain why DOJ went to Florida rather than DC.
DOJ was scared that a Theft case would look overcharged—even though it was richly warranted—so it went with the easier-to-prove *and* more mild version of the fact-pattern, which arguably...
DOJ was scared that a Theft case would look overcharged—even though it was richly warranted—so it went with the easier-to-prove *and* more mild version of the fact-pattern, which arguably...
22/ ...had to be heard in Florida. (I was never really convinced even a retention case *had* to be heard in Florida—as some of the retention did occur in DC—but certainly *most* of it was in Florida, and DOJ was *also* concerned about looking like it was judge- or jury-shopping).
23/ The problem here is that one of *many* things Americans—for all that they like to talk about the justice system—do not understand about it is that it is an adversarial system of justice, which means it starts to break down if *either* side does not act with zealous advocacy.
24/ If it’s appropriate for DOJ to bring a Theft case in DC, it must; if it’s appropriate to also bring a retention case in Florida, it must; if DOJ believes it’ll find better judges and jurors in DC than Florida, it’s no violation of our system for it to take that into account.
25/ By the same token, defense counsel is ethically *obligated* to take every action that would benefit the defendant that does not violate the law or professional ethics (a broad maxim Trump’s attorneys often seem to violate, anyway). We have an *adversarial* system of justice.
26/ In Europe, they have an “inquisitorial” system of justice, one in which all entities are focused on the pursuit of “justice” and presumed to be neutral in this regard *rather* than focused on zealous advocacy for their side. America rejected that system hundreds of years ago.
27/ So when DOJ *deliberately* charged Trump with less than it could’ve, it was a blow against our rule of law; when it *deliberately* charged Trump where it knew it wouldn’t be criticized for charging him, it was a blow against our rule of law.
And yes, media coverage mattered.
And yes, media coverage mattered.
28/ DOJ was able to disguise its concern about media coverage—which, in essence, was a concern about Trump’s *voluntary* politicization of his own case—by saying it didn’t want a prolonged venue fight in DC. But (a) a Theft charge wouldn’t have led to *any* venue fight and (b)...
29/ ...the venue fight in DC was *winnable*, and it certainly wasn’t such a risk that it was worth moving a DC case to Trump’s home state—which is arguably the most corrupt state in the United States (along with NJ and IL), and therefore is totally wrong for a case like this one.
30/ But as we now know, while DOJ could *theoretically* still bring a Theft charge in DC, it almost certainly will *not*—because of its other work on Trump, trial schedules, resources, and fear of Double Jeopardy claims—and the result of going to Florida was...
...Aileen Cannon.
...Aileen Cannon.
31/ Before we briefly address the Cannon Question, understand that the Florida case was the second most dangerous case of Trump’s four—as his legal team would have immediately deduced. Why? Because the precedent for charges like Trump’s Florida ones is that *you do prison time*.
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33/ Whereas *some* of Trump’s cases—we will shortly discuss which ones—do not necessarily require or suggest a likelihood of post-conviction incarceration, the Florida case *does*. And not just because there are so many charges, or because the total maximum sentence is 435 years.
34/ Nor is it just because—though this is true—sentencing tends to be more draconian in federal cases than in state cases (because of sentencing guidelines, because federal cases tend to be the most serious, and because federal judges invariably are even more small-p political).
35/ Rather, it’s because we can look at the long history of people being charged with *exactly* what Trump is charged with and see that... well, they *do* end up in prison. Not always for long bids, but they end up in prison for between 1 and 5 years (which would destroy Trump).
36/ In fact, this may be another reason DOJ opted for the easier-to-prove retention case than a Theft case—it knew that if convicted of illegal retention of classified documents Trump was very likely to be incarcerated, possibly even for the (short) remainder of his natural life.
37/ On the other hand, in criminal cases it’s judges who decide sentencing, so moving the case to Florida wildly increased the odds of a corrupt (or just unqualified) Trump-appointed or Trump-sympathetic judge who’d deviate from precedent and *not* imprison Trump post-conviction.
38/ That lack of strategic thinking—that lack of zealous advocacy for the rule of law and for the American public—was just the tip of the iceberg in the Florida case, as of course that case is *federal* and therefore it was of *paramount importance* that it be heard pre-election.
39/ Put aside whatever you think of Donald Trump. *Anyone* of good faith—which I do realize excludes most MAGAs—would *have* to admit that a POTUS of *any* political party unilaterally erasing a federal criminal prosecution of him *destroys* our rule of law forever.
Yes, really.
Yes, really.
40/ *By definition*, rule of law only *exists* if it is the *rule* for *all persons*—including presidents.
*By definition*, if a President of the United States can corruptly end a prosecution of himself, the country he is leading does not have rule of law. It simply *does not*.
*By definition*, if a President of the United States can corruptly end a prosecution of himself, the country he is leading does not have rule of law. It simply *does not*.
41/ So given that Trump has made clear that he will corruptly end all federal cases against him if elected—on the claim that elections decide federal criminal cases, not juries, which is *literally not what rule of law means*—DOJ had an *obligation* to get to a jury pre-election.
42/ That obligation DOJ had *didn’t* mean avoiding any jurisdiction whose judges would fail to incarcerate Trump on a conviction for illegally retaining classified documents—it’s *not* a decimation of rule of law for a judge to hand down a lenient sentence post-conviction—but...
43/ ...it *did* mean DOJ *had* to ensure it didn’t run to a jurisdiction whose judges were likely to *corruptly delay* the case until after the election—as it’d invariably produce (if Trump were elected) the destruction of U.S. rule of law via a corrupt presidential intervention.
44/ Defendants jurisdiction- and judge-shop all the time—and candidly so do prosecutors. They may say they don’t, but they do, and our adversarial system of justice allows it. DOJ knows that the court system (including the jury system) in DC is less corrupt than it is in Florida.
45/ DOJ therefore should’ve bent over backwards to get the documents case heard in DC—better judges, better juries, less corruption—but it didn’t, and part of it was for media reasons and part of it was for political reasons *Trump* created by strategically politicizing the case.
46/ A brief side note, now, to clarify something about DC juries—which are among the *best juries in America* for reasons *other* than you might think. While Trump is afraid of DC juries because they are far more likely to have Black members than Florida jurors, and as he is...
47/ ...an unrepentant racist he just presumes Black jurors will be incapable of or unwilling to do their duty as jurors properly, I know from *working for one of the two federal public defenders in DC* (I was a federal criminal investigator there) that the *opposite* is true.
48/ DC has one of the highest *acquittal* rates in America—acquittal of defendants (like Trump), not conviction—because DC residents are *incredibly* circumspect about Big Government (which, though MAGA tries to deny it, includes MAGA-backed draconian law enforcement practices).
49/ As I’ve seen first hand, MPDC is... not the best. It has a history of serious abuses against DC citizens (always supported by the GOP, and opposed by Democrats). That has created a jury pool that is *more* inclined toward defendants than in almost any other U.S. jurisdiction.
50/ When I was a criminal defense attorney, my acquittal rate at trial was 70%, which is considered high given that *conviction* rates nationally are 70%-90%. In DC, they’ve historically been around 50%.
(Keeping in mind 90% of defendants plead guilty instead of going to trial.)
(Keeping in mind 90% of defendants plead guilty instead of going to trial.)
51/ In the view of most lawyers, a jury pool that’s comfortable with acquitting defendants is one that’s not lackadaisical but the *opposite*—it takes no one’s word (including police officers) as gospel, and *doesn’t* presume that just because a charge was brought, it’s correct.
52/ So Trump is afraid of DC juries for two reasons: because he’s a racist, and because he runs the party that has authored the Big Government, anti-citizen, draconian law enforcement practices that the smart, circumspect juries in DC strongly dislike and rightly disapprove of.
53/ From the standpoint of *DOJ*, though it surely doesn’t love the acquittal rate in the District, it *does* have to acknowledge that DC has the best federal judges and among the best juries in the country, whereas Florida has been a Wild West of Trumpian lawlessness since 2015.
54/ So it was foreseeable in advance that Trump would want a Florida judge and jury, not a DC one (for the aforementioned reasons, but also because Trump is 100% dead-to-rights on all 88 felonies he faces and knows it; a corrupt judge and/or jury was *always* his strongest hope).
55/ But DOJ made the decision it did, and we ended up with a Trump partisan (Aileen Cannon) who is making decisions the likes of which no attorney I know has ever seen—and decisions she *wouldn’t make* were the defendant here anyone but her political patron and hero Donald Trump.
56/ No one in America who says they believe in rule of law, law-and-order, personal accountability, keeping America safe, or taking a hard line on crime can support a judge giving special treatment to a defendant *because of who they are*.
Take that view and you are *lawless*.
Take that view and you are *lawless*.
57/ It’s for this reason that this thread doesn’t indulge the counterfactual concerns of MAGAs. These come from a place of lawlessness—wanting draconian practices for strangers, and special treatment for your friends—I can’t/won’t support or indulge as an attorney and journalist.
58/ It’s *factual*—by every measure we might use in the law or journalism—that Trump has politicized his cases, not DOJ. It’s *factual* that these cases are being heard slower than they should be. It’s *factual* that Trump is getting special (beneficial) treatment. It’s also...
59/ ...*factual* that it’s *imperative* that at least Trump’s two federal cases must be heard pre-election because *he* has promised to destroy our rule of law by corruptly ending his own cases if elected. *Trump* made the decision to create those historic stakes—not prosecutors.
60/ And there are more esoteric reasons, too, that DOJ should have *expressly* preferred the *far* more qualified judges—no one in the law doubts they’re the very best in America—that DC has as compared to *any* other U.S. jurisdiction. For instance, this is a *complicated* case.
61/ Note that I’ve said the *opposite* about the Manhattan case, which we will get to shortly. It’s *not* a complicated case, but Trump desperately wants to make it out to be one (and so does major media, as it knows this’ll be the only ratings-boosting Trump trial pre-election).
62/ The Florida case *is* complicated because of the high-level security clearances required for all parties to the case, including jurors; because the security-clearance issue creates additional security and media-coverage hassles; and because the number of documents involved...
63/ ...which is significant. Also, whereas (say) Trump’s NYC case arises from the sort of run-of-the-mill white-collar felonies it appears Trump—based on my research into his past—has been committing for years and years like many white-collar criminals, the Florida case is novel.
64/ In other words, DOJ *knew* that it was likely to get a Trump-partisan, less-competent judge in Florida to handle a *wildly* complex and *novel* case—and that the result would be the *one thing* DOJ couldn’t possibly allow: pretrial delays pushing the case until post-election.
65/ By comparison, a DC case would a) better fit the facts and seriousness of what Trump did; b) provide a better judge; c) provide a better jury; d) involve a federal bench *accustomed* to i) complex cases, ii) cases involving high-profile politicians. *That* was the right call.
66/ So hopefully you all better understand, now, why I and many other lawyers thought *at the time* that DOJ erred in taking the case to Florida, and did so for the wrong reasons—even *before* we knew that Aileen Cannon would be the appointed judge there (and certainly before...
67/ ...Cannon betrayed her intentions by making her *first decision in the case* to *unilaterally move it* from the seat of her jurisdiction to her own designated corner of it, moving from a near-certain Blue jury to one of the only Red ones you could possibly find in that area).
68/ The result is Cannon taking 5x-10x longer to make pretrial decisions than she should (with an apparent aim of pushing the case postelection); entertaining Trump motions—even granting some—that should be dismissed ASAP (with an apparent aim of pushing the case postelection)...
69/ ...creating such mayhem behind-the-scenes among her own clerks that she’s *creating her own clerk shortage* (with an apparent aim of pushing the case postelection); and forcing DOJ to desperately seek any means to get her *recused*, rather than being able to advance its case.
70/ All of this was foreseeable—and the foreseeably disastrous consequences were foreseeable. So make no mistake: one of the four sets of felonies Trump should have faced pre-election isn’t going to trial because of DOJ errors that U.S. major media likely had a hand in provoking.
71/ If you want to know the sort of competent, business-like demeanor DOJ *knew* it could’ve gotten in DC, look no further than the January 6 case DOJ brought. Judge Tanya Chutkan is obviously hated by Trump in part because she’s a Black woman, but also because she’s *efficient*.
72/ When you’re a defendant who’s dead-to-rights on all charges but *also* a defendant who potentially could unilaterally make your own criminal cases non-justiciable—logistically incapable of being reviewed by any court, ever—what you want is an incompetent partisan like Cannon.
73/ For various reasons having to do with the legal profession, the *best* judges—the most qualified, capable, efficient and ready for complex litigation—are generally federal ones, and *especially* DC ones. Judge Chutkan is a nightmare for Trump because she’s *great* at her job.
74/ So why aren’t we saying that the DC case will go forward pre-election, if the stakes are the same as in Florida—(i) a failure to go to trial pre-election would destroy U.S. rule of law; (ii) others charged with January 6 offenses have gone to prison—and Chutkan is in charge?
75/ Well, you might recall that I said Donald Trump had not just a legal team helping him, and U.S. media, and in some cases MAGA partisans creating unique obstacles to his cases being heard—more on that soon—but also a juridical cadre of highly partisan permanent civil servants.
76/ If the MAGAs didn’t like what this juridical cadre of highly partisan permanent civil servants is doing as much as they do, they would call it the Deep State.
But again, that would require MAGAism in any way being about principle rather than merely the raw exercise of power.
But again, that would require MAGAism in any way being about principle rather than merely the raw exercise of power.
77/ And that cadre is by no means limited to Judge Aileen Cannon. It also involves members of the Supreme Court of the United States, at least two of whom would already have been—in any healthy democracy not (as we are) at the point of collapse—impeached by the nation’s Congress.
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79/ Judge Chutkan is a powerful judge—a federal district court judge who has only two courts above her: the most powerful sub-SCOTUS appellate court in America, and SCOTUS. She can’t be stopped (needless to say) by a Trump partisan in Florida like Cannon, or by US media pressure.
80/ But she *can* be stopped by SCOTUS.
So imagine for a moment that we have at least two MAGAs on SCOTUS—Alito and Thomas. I suppose it goes without saying that *every single piece of evidence journalists and attorneys currently have* is that Alito and Thomas are MAGA cultists.
So imagine for a moment that we have at least two MAGAs on SCOTUS—Alito and Thomas. I suppose it goes without saying that *every single piece of evidence journalists and attorneys currently have* is that Alito and Thomas are MAGA cultists.
81/ I’m using “cultist” advisedly here, indeed for an even more technical reason than I usually do. A cult is defined by insular and antisocial views deriving from a leader or group of leaders that often don’t conform to the civil contract those of us in a human society agree to.
82/ In the law, the conventional—as opposed to antisocial—view of jurisprudence is a) legal questions should be justiciable and b) no legal question appropriately directed to government’s judicial branch should be arbitrarily assigned to its executive branch or to voters instead.
83/ Beginning in the mid-1990s, the far right of American politics—prompted in large part by the Murdoch media empire and demagogues like the late Rush Limbaugh—began speaking with a *unified* voice about the idea that progressivism was an existential threat to the United States.
84/ Limbaugh began referring to any Democratic administration as a REGIME—an open code for the idea that any Democratic governance was per se illegitimate—and the Murdoch empire redefined “hard news” as highly emotionalized content intended to reinforce existing far-right biases.
85/ Thomas came to the Court as this new media reality was in its earliest stages, and Alito—even more partisan than Thomas—*marinated* in it before his elevation to the Court under George W. Bush. These were men who saw politics as war and progressivism as an existential threat.
86/ These men saw that certain others—think Trump friend Roger Stone and the Brooks Brothers Riot he orchestrated in Florida in 2000 to steal the 2000 election for the man who would nominate Alito—*agreed* with their view and were willing to treat politics as “total war” forever.
87/ Don’t mistake me: Democrats aren’t lightweights; they often play hardball. But 2000 proved that the GOP would sponsor *violence and threats and mass fraud* to steal elections, and the fact that Democrats didn’t take the same path gave the GOP a huge leg up in U.S. elections.
88/ That’s why George W. Bush, who had become president despite *losing* the popular vote in Florida—Al Gore *literally* was the winner in 2000—again won in 2004, this time with the help of one of Clarence Thomas’s wife’s best friends, Ohio Secretary of State Kenneth Blackwell.
89/ What Ginni Thomas’s pal Ken did was move *thousands and thousands of electronic voting machines* out of majority-minority precincts in Ohio and put them in lily-white precincts that didn’t need them at all (feel free to Google this; I covered it as a journalist at the time).
90/ The result: no waiting lines in white precincts in Ohio in 2004, up to *14-hour waiting lines* in majority-minority precincts in Ohio (particularly in Cuyahoga County, in Cleveland).
MAGAs have been targeting largely Black cities for voter suppression since way before Trump.
MAGAs have been targeting largely Black cities for voter suppression since way before Trump.
91/ George W. Bush won the 2004 election by a 50,000-vote swing in Ohio—it helped make Blackwell a GOP star and a leading Ginni Thomas collaborator in secretive far-right organizations like Groundswell (Google the Mother Jones article on this Bannon-cofounded Ginni Thomas joint).
92/ Indeed, if you ever hear a MAGA say today, in 2024, that a violent armed rebellion against the U.S. government in January 2021 was A.O.K. because (as they like to say) Democrats did the same thing in 2004, they are referring to just *two* Democrats standing up in Congress...
93/ ...in 2004 to briefly—only symbolically—protest what Ginni Thomas pal Kenneth Blackwell did to steal the second election in a row for Republicans.
If the *Democrats* had done to Republicans in *either* 2000 *or* 2004 what Republicans did to Democrats, there might’ve been...
If the *Democrats* had done to Republicans in *either* 2000 *or* 2004 what Republicans did to Democrats, there might’ve been...
94/ ...widespread violence and a simmering, low-heat civil war. Democrats instead ran a 30-minute symbolic protest with Barbara Boxer and Stephanie Tubbs-Jones (the latter the representative whose constituents were denied their constitutional rights, and the former a senator...
95/ ...offering moral support to her friend) and the Republicans were using it to justify *a violent attack on the Capitol* 15 years later. If that’s not enough to explain the difference between the MAGAs and Democrats in this century, nothing is.
But here’s my point about this:
But here’s my point about this:
96/ What Thomas and Alito saw was a political battleground that had shifted decisively to the GOP in this century because of its commitment to total war—a commitment the Democrats were (and I am *glad* for this) unwilling to match because they continued to believe in rule of law.
97/ Clarence Thomas’s wife was *actively* involved in this total war, and *remains* actively involved. Alito *has his job* because of what Ginni Thomas’s circle did in 2004. So it’s no surprise that Ginni Thomas sought to aid the insurrection, and Mrs. Alito has flown J6er flags.
98/ But it’s *also* no surprise that Thomas and Alito would fall into MAGAism—as to the justice system, a cult which believes that *politics* should replace *law* in our society. That is, what were formerly legal questions should become non-justiciable and/or political questions.
99/ And Thomas and Alito *only believe this* because they know the gerrymandering, voter suppression, voter intimidation, mass fraud and even insurrectionist gambits being pursued by Ginni Thomas and her friends (and apparently agreed with by Mrs. Alito) *tilt the playing field*.
100/ When you believe politics has shifted permanently in your team’s direction because of its willingness to wage in total war—the sort of ethos we’d expect under an authoritarian regime, not in a democracy—you suddenly become a judge who *wants* judges to be far less involved.
101/ And so it was that the legal news over the last week was all about Justice Thomas declaring that racial gerrymandering cases *should no longer be heard by judges anywhere* and should become *officially* non-justiciable.
He wants racist voters deciding on racist practices.
He wants racist voters deciding on racist practices.
102/ Thomas *wouldn’t* have this view if his side in the total war his side made U.S. politics into was losing; *then* he’d say that judges *must* step in.
But that’s not where we are.
And so we see the *same pattern* in MAGA-cultist Sam Alito’s holdings over the last decade.
But that’s not where we are.
And so we see the *same pattern* in MAGA-cultist Sam Alito’s holdings over the last decade.
103/ This is why the Alitos’ flying of not one but *two* J6er flags at *two* of their properties and then lying about it matters. This is why Alito leaking SCOTUS decisions to MAGA groups (Google it) matters. Because these stories reveal who these men are and perhaps always were.
104/ It also explains how and why these two men led the charge to destroy the DC case against Donald Trump.
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106/ Alito and Thomas—and possibly Gorsuch, Coney Barrett, and Kavanaugh; perhaps even Roberts—not only want any legal question the resolution of which could damage Republicans to magically become non-justiciable, and determined by the Ginni Thomas-tweaked “will” of the voters...
107/ ...they *also* want *obvious* legal questions—88 felonies against a defendant—to be decided by an *election* rather than juries, as (again) they know their side in the existential war over progressivism has committed itself to *total war* and therefore has a huge advantage.
108/ And they’re right.
The MAGA Party—there *is* no Republican Party anymore, and it’s time to accept it—has an advantage.
In a democracy, the political party that ceases believing in democracy *first* has a distinct *medium-term advantage* in ostensibly democratic elections.
The MAGA Party—there *is* no Republican Party anymore, and it’s time to accept it—has an advantage.
In a democracy, the political party that ceases believing in democracy *first* has a distinct *medium-term advantage* in ostensibly democratic elections.
109/ In 2000, Donald Trump friend Roger Stone helped Republicans steal the election.
In 2004, Ginni Thomas friend Kenneth Blackwell helped Republicans steal the election.
In 2016, Donald Trump friend Vladimir Putin helped MAGAs steal the election.
And while we *might* say...
In 2004, Ginni Thomas friend Kenneth Blackwell helped Republicans steal the election.
In 2016, Donald Trump friend Vladimir Putin helped MAGAs steal the election.
And while we *might* say...
110/ ...this means that—in this century—Republicans *have never won a national election*, that would be the benighted reasoning of a political party that *doesn’t* see politics as total war.
Here’s how the MAGAs see it: 3 election wins and 3 more elections “stolen by Democrats.”
Here’s how the MAGAs see it: 3 election wins and 3 more elections “stolen by Democrats.”
111/ So some or all of this conservative SCOTUS majority, disproportionately appointed by Trump—because of, one could argue, up to *three* SCOTUS seats stolen by the Republicans in a historic fashion that Democrats did absolutely nothing about—wants an election, not *any* trials.
112/ And of *course* they frame it as being pro-election. And pro-democracy. And anti-judicial overreach. And “strict constructionist.” If *you* had ceased believing in democracy and *were living in a democracy*—if you had declared total war *on your own countrymen*—wouldn’t you?
113/ Fortunately, as an attorney I’m not bound by the self-serving, disingenuous rhetoric of radical insurrectionists seeking to disguise the fact that they adhere to an antisocial cult.
I can—like any attorney—simply look at the quarter-millennium history of our justice system.
I can—like any attorney—simply look at the quarter-millennium history of our justice system.
114/ That *entire history* confirms that presidents aren’t above the law. It confirms that when charges are brought, they’re to be adjudicated in a timely fashion. It confirms that the correct arbiter in any criminal case is the People *in the form of a jury*, rather than voters.
115/ And the fact that—in a case to be decided next month—at least 4 SCOTUS justices were willing to entertain the notion that *none of what I just said is true anymore*, and also to do so on a slow, drunken, lugubrious timeframe intended to push all Trump trials post-election...
116/ ...suggests—as does the Alito flag news—that our SCOTUS has been coopted by MAGA cultists who not only no longer believe in an uncorrupted (non-total-war) democracy; who not only no longer believe in the justiciability of legal issues that could harm their political ethoi...
117/ ...but who’d undercut *centuries* of legal precedent to ensure that *one defendant* is above the law—deserving of having his fate be decided by voters (who they think will choose him because their side has opted for total war) rather than by the juries he *should* be before.
118/ In short, while an executive-branch insurrection was stopped—for now—on January 6, with easily replaceable foot-soldiers (but not any of their major leaders!) being held accountable for their crimes, the *judicial-branch* insurrection the MAGAs launched was a successful one.
119/ Judge Chutkan is bound by the whims of an insurrectionist SCOTUS that scheduled for the *latest hearing it could* a question that *never* should’ve been taken up at all. It’s as ridiculous as the denizens of Sesame Street taking up a referendum on whether to legalize murder.
120/ That’s how you know MAGAism is toxic—a mind virus (hello, Elon) that’s *provably*, not just *rhetorically*, affected a segment of our society.
This isn’t a matter of me disagreeing with conservative jurists; this is me saying they’re *not even lawyers anymore*—but cultists.
This isn’t a matter of me disagreeing with conservative jurists; this is me saying they’re *not even lawyers anymore*—but cultists.
121/ As an attorney, I *can’t* take the view that any one person is above the law or I’m violating the Oath to uphold the U.S. Constitution that I took before the members of the New Hampshire Supreme Court on October 30, 2001. I take that view and I’m no attorney at all, anymore.
122/ So while I see a lot of attorneys online trying to keep their cool, I know many of them are *freaking the hell out* inside *not* because they have disagreements with Trump’s Supreme Court but because this Court is no longer acting like a court at all...and that’s terrifying.
123/ I don’t believe a Deep State exists. I never have. The whole concept is *silly*—what MAGAs call the Deep State is merely career civil servants doing their job. What the MAGAs hate is the rule of law that these career civil servants are upholding. What they hate is democracy.
124/ But *from the MAGA viewpoint*—if the MAGA fantasy of a Deep State were principled, not mere gaslighting obscuring anti-democratic obsessions—a Supreme Court that has abandoned rule of law in favor of a lawless cult *is* the ultimate nightmare.
Yet it’s where we all are now.
Yet it’s where we all are now.
125/ Trump’s DC case—which *has* to be heard preelection (whatever its verdict) for rule of law to survive; which *would* send Trump to prison on a conviction—is being delayed by cultists Judge Chutkan is powerless against. She’ll do what she can, if the case comes back to her...
126/ ...to schedule it for the earliest open date—as she has made clear, even if that’s in September or October, because *the timing of elections literally doesn’t matter under rule of law*, as she has *rightly* observed—but SCOTUS has the power to keep hearing frivolous appeals.
127/ In short, either the DC case DOJ brought over January 6 is dead—because it can’t be heard quicker than a President Trump can end it—or Trump will lose in November and end up in prison on that case or another, so it doesn’t matter. That’s the situation the SCOTUS has ensured.
128/ Meanwhile, SCOTUS has taken up a *second* case connected to Trump that confirms that it is no longer a Court in any conventional sense of that word.
129/ This thread will run 200+ tweets, so this is just a brief break to note that while this thread and its expertise are free, if you’d like to tip the author for his work, you can do so, in any amount, at Venmo ([@]SethAbramsonTwitter) or the link below: sethabramson.net/pp
130/ Everyone who walked on Capitol grounds on January 6 was criminally trespassing. The Capitol was closed to the public that day; barricades had been erected—barricades manned by police—to confirm it. January 6 was a Criminal Conspiracy from the jump because it was all illegal.
131/ The second Ali Alexander, Alex Jones, and other Trump advisers and allies began advertising a rally on the Capitol steps *rather than the legal location they applied for a permit for under a false name*, they were part of a Criminal Conspiracy to trespass on federal grounds.
132/ But DOJ *chose* to do the insurrectionists a major *solid* for political and media—not criminal justice—reasons: it did not charge those who stepped over barricades to trespass on federal land on January 6. It let *all* those people go scot-free. That was one huge mistake.
133/ A second huge mistake was that it didn’t charge any of the mid-level conspirators, like the men who had arranged and actually *led* a march on January 6 whose very purpose was illegal.
No, it let men like Alexander and Jones go as long as they didn’t enter the U.S. Capitol.
No, it let men like Alexander and Jones go as long as they didn’t enter the U.S. Capitol.
134/ A *third* huge mistake by DOJ—which you can read about below—was to let the *ringleaders* go unpunished for January 6, again for political and media rather than criminal justice reasons. I strongly recommend this Washington Post report from June 2023: washingtonpost.com/investigations…
135/ And did MAGA *thank* DOJ for all this unprecedented largesse? The sort of benevolence our criminal justice system *never* shows to poor nonwhites? No, of course not—as it seems the only thing Trump supporters “know” about the justice system is that it’s *not meant for them*.
136/ As a criminal justice professional I can tell you that, *even when it’s working properly*—which is rare—our criminal justice system isn’t much more than a contemptible command-and-control scheme designed to maintain existing social order by policing almost *only* poor folks.
137/ In many areas, there’s a *strong* racial and ethnic component as well—one that ensures Black and Brown Americans will *stay in their areas* and remain socially immobile. When the criminal justice system has to deal with middle-class or rich whites, it gets terrified *fast*.
138/ This is why so many MAGAs love the justice system—as they believe it’s not for them *and are mostly right* (about that if almost nothing else)—but why we *also* see these supposed law-and-order types get *incensed* when they even face the *kid gloves* version of our system.
139/ And that’s January 6 in a nutshell: middle-class and rich whites committed insurrection; DOJ got terrified, as it has little experiencing persecuting such folks and believed doing so was politically and media-wise extremely dangerous to the future of federal institutions...
140/ ...like the DOJ and FBI (which Trump has now repeatedly confirmed for his followers it *absolutely is*, as he plans to destroy both institutions if elected); and it therefore chose to *only* bring cases where people went inside the Capitol or engaged in violence outside it.
141/ And Trump’s SCOTUS is now deciding whether to dump most of those cases—all but the ones involving violence.
*That’s* how little this Court is acting like a court: DOJ *couldn’t bend over far enough* to accommodate the MAGAs, at least not for the tastes of these Justices.
*That’s* how little this Court is acting like a court: DOJ *couldn’t bend over far enough* to accommodate the MAGAs, at least not for the tastes of these Justices.
142/ So if I say there’s now widespread fear that a majority of the Court is part of a cult and no longer properly judges as we understand that term, it’s *not* just because they want *Trump* to be above the law but most active insurrectionists who are also in their cult *too*.
143/ And this second Supreme Court case that will be decided in the next month will—if it goes the insurrectionists’ way—send *precisely* the signal the Murdoch media empire and demagogues like the late Limbaugh have long tried to send: Democratic executive branches are regimes.
144/ If a Supreme Court disproportionately comprising people appointed by the nation’s leading insurrectionist *or* appointed as a result of stolen elections and/or seats declares that the Biden administration’s DOJ wrongly charged hundreds of insurrectionists with Obstruction...
145/ ...the message is clear: not only did DOJ *fail* in its duty to middle-class and rich whites—to *avoid* ever showing them what our criminal justice system is and always has been—but even in bending over backwards to coddle them it acted as the illegitimate arm of a *regime*.
146/ You think that might have an effect on the election in November? You think it might send a message about the legitimacy of the ongoing Trump cases, and any conviction that might be achieved in one of them pre-election? You think that might be a message cultists want to send?
147/ It’s with all this in mind that I say that the Anderson case that’ll be decided next month will *not* only determine how or when the DC case (the January 6 case overseen by Judge Chutkan) can go forward, but *also* whether the January 6 state case in Georgia can go forward.
148/ And remember, as we run through this discussion of the Georgia case—the third of four cases I am focusing on here—that the MAGA Majority in the SCOTUS *does not need to end this case outright*, it merely needs to ensure it is postponed until after the November 2024 election.
149/ While Trump can’t unilaterally end state prosecutions as president as he can a federal prosecution—reminding everyone here, however, that the latter would be a criminally corrupt act that would end rule of law in America—there are other reasons a postponement works for MAGA.
150/ There’s no clear mechanism for a state court to exert jurisdiction over a President of the United States, once he’s in office. Provided Trump avoids ever entering Georgia, even an NCIS warrant probably wouldn’t provoke action by any other state’s law enforcement officers...
151/ ...and even in Georgia, you’d be looking at the possibility of a shootout between the Secret Service and Georgia law enforcement, which—to be quite clear on this—is why *neither* entity would want Trump to ever enter Georgia and create a dangerous crisis in U.S. federalism.
152/ And the reason that the MAGA Majority inside SCOTUS—again, what would *have* to be considered a nightmarish Deep State if you look at the world through *MAGAs’* claims about what a Deep State is—creating a likely postponement of the Georgia case matters so much is a big one:
153/ Trump faces a five-year mandatory *minimum* sentence in Georgia.
You read that right.
You read that right.
154/ The maximum sentence in the Georgia state case involving January 6 is 20 years, but the *minimum* on the state RICO charge is 5 years—a sentence (given that life expectancy shortens significantly in prison) that could be a *life sentence* for a man in poor health like Trump.
155/ So when Trump and his lawyers were looking at his four cases and realizing that probably one would end up going to trial pre-election, there were a *number* of reasons (which I will get to) that they *wanted* it to be Manhattan and definitely *not* the state case in Georgia.
156/ Sadly, the Georgia case also saw another unforced error on the order—in terms of its effect—of the DOJ mistakes in the Florida case.
I recognize that some of what I am about to say will be unpopular among some readers of this thread, but my job is to be honest and accurate.
I recognize that some of what I am about to say will be unpopular among some readers of this thread, but my job is to be honest and accurate.
157/ When it was brought, the Georgia case became in many ways the most important case Trump faced because (1) it involved January 6 (his worst-ever crime); (2) it had a mandatory minimum sentence long enough to protect America from future Trump crimes; (3) it was a state case...
158/ ...and therefore not one Trump could get rid of via criminally corrupt actions as president; (4) it had *so many* co-defendants that the chances of *one* flipping on him were high; (5) it was likely to go to jury in a politically mixed (trending to very blue) jurisdiction...
159/ ...as opposed to one of the blood-red jurisdictions Trump must pray for in order to be acquitted on charges he is definitely guilty of; (6) the case involved an easy-to-understand fact-pattern and no bizarre national security issues; (7) there was *key material evidence*...
160/ ...for jurors to receive, in the form of an audio recording of Trump trying to rig an election that was unambiguous in its criminality; (8) the moral stakes couldn’t be clearer—e.g., trying to steal an election *directly*, rather than through a NYC business-records scheme...
161/ ...and other reasons even more esoteric. The Georgia criminal case was—in short—in a favorable location for the State; had a mandatory minimum sentence; had unimpeachable evidence of criminality; and therefore presented a *massive* danger to Trump if he couldn’t postpone it.
162/ And keep in mind that when the case was brought, *no one* thought the Supreme Court had become *so* lawless that it would use the ultimate asked-and-answered legal query—is a POTUS above the law?—as an excuse to postpone the federal (DC) and state (Georgia) January 6 cases.
163/ What that Georgia case demanded of *everyone involved* was *perfect* conduct. Unimpeachable conduct. Not just in the reality of the thing, but also—because every attorney knows *this is the standard* in our profession—even in the *appearance* of the thing.
Everyone knew it.
Everyone knew it.
164/ Having said that, I understand that we are humans, and that love exists, lust exists, infatuation exists, eldritch emotional and intellectual and physical attractions exist, and, because we are human, *mistakes* exist. Attorneys—including prosecutors—aren’t immune to errors.
165/ But *this* case—of all cases ever heard in America—had to be not only error-free and conflict-free, but, *because all attorneys know that this is the standard of conduct in our profession*, free of even the *appearance* (as we say, arguendo) of any appearance of impropriety.
166/ The defendant in the Georgia case wasn’t only a former president—already an unprecedented defendant and case—but as importantly the leader of a movement that is at once prone to violence, hostile to Black people, doesn’t believe in democracy and has contempt for rule of law.
167/ This man and his cultists—including in the judiciary—*in particular* were hunting for *any sign* of even the *appearance* of political motive in any case brought against him, as they would see it as a vindication of their antisocial, anti-American, anti-democratic worldview.
168/ So when Fani Willis was admonished—and told she couldn’t prosecute one of Trump’s codefendants—because she’d stupidly appeared at a fundraiser for one of his political opponents, that was galling, jarring, and profoundly disappointing. Because as an attorney she knew better.
169/ If the Fani Willis-Nathan Wade relationship began before Trump’s case, fine. It simply meant they couldn’t work together on any case, including Trump’s.
There are just *too many ways* for defendants to argue the *appearance* of impropriety when a secret relationship exists.
There are just *too many ways* for defendants to argue the *appearance* of impropriety when a secret relationship exists.
170/ If the Willis-Wade relationship began *after* Trump’s case, also fine. It just meant Wade had to immediately remove himself from Trump’s case once the relationship began.
The only thing that *couldn’t* happen was an ongoing secret relationship between *those* two coworkers.
The only thing that *couldn’t* happen was an ongoing secret relationship between *those* two coworkers.
171/ Willis and Wade chose the only unacceptable course. Then, when caught, instead of immediately having Wade resign they let the situation become an ongoing in-court fiasco, during which Willis was unprofessional enough on the stand that she was *again* admonished by the judge.
172/ And who was *watching* all this? Not just prospective jurors, not just the trial judge, not just Trump co-defendants who now saw a chance to pile on and create *further* strategically important delays for themselves and their patron Trump, but all American voters everywhere.
173/ And all of this was happening in the context of Donald Trump (falsely) claiming that there was a far-left national conspiracy run by the Deep State (often framed by MAGAs as female and nonwhite when not framed as male and Jewish) to politicize the justice system and get him.
174/ Even SCOTUS’ MAGA Majority was desperately hunting—like the Nazgûl flying over the Dead Marshes on their fell beasts—for *any* sign that, as they have *always* believed (without any proof), legitimate criminal cases are in fact lawfare that should be replaced with elections.
175/ So while *accepting* that people fall into love and lust no matter what their profession; and *accepting* that Trump had only a very attenuated argument to make that there was even an *appearance* of impropriety in the Willis-Wade affair; the whole situation was *avoidable*.
176/ The result of the situation not being properly handled—ex ante or ex post—was weeks of delay; a potential poisoning of the jury pool; terrible media coverage for the case (which, as noted, matters, and particularly in state cases closer to local politics); and even worse...
177/ ...a potential discrediting of a single-state prosecution—fairly or not—among a national electorate that needs to be on board with the moral sanctity of a single-state criminal case that would send to prison for *five years* a man who maybe 40% of Americans want to vote for.
178/ I suspect the situation even weakened the hand of the 4 actual judges—maybe 5—remaining on SCOTUS in backroom conversations about whether there’s *any conceivable reason* to hear a case whose only purpose is to replace criminal cases with elections (contrary to rule of law).
179/ So much for the Georgia case.
Which brings us to the Manhattan case.
Which brings us to the Manhattan case.
180/ This thread will run 200+ tweets, so this is just a brief break to note that while this thread and its expertise are free, if you’d like to tip the author for his work, you can do so, in any amount, at Venmo ([@]SethAbramsonTwitter) or the link below: sethabramson.net/pp
181/ A friend recently asked me what I thought would happen in the Manhattan case. I told him that it’s impossible to make such predictions without being in the room—even if you’re a longtime criminal defense attorney—and that this case is unlike any other...well, *ever*, really.
182/ But I said I believed there’s an 85% chance of either a conviction or hung jury—and only a 15% chance of acquittal.
I shortly thereafter found out—to my displeasure, I admit—that this is more or less exactly the prognosis that former FBI director James Comey offered on CNN.
I shortly thereafter found out—to my displeasure, I admit—that this is more or less exactly the prognosis that former FBI director James Comey offered on CNN.
183/ But whereas Comey saw an 80% chance of conviction and 5% chance of a hung jury—consistent with the fact that hung juries (which I’ll explain in a moment) are rare—I told my friend that I arrived at 85% by seeing about a 65% chance of conviction and 20% chance of a hung jury.
184/ As most of you know, there are 12 people on a jury and *either* an acquittal (a Not Guilty verdict) *or* a conviction (a Guilty verdict) requires a unanimous vote of all members of the jury.
Note that in the U.S. justice system you are never found Innocent, just Not Guilty.
Note that in the U.S. justice system you are never found Innocent, just Not Guilty.
185/ Not Guilty means the case wasn’t proven beyond a reasonable doubt in the view of all jurors. Guilty means the case *was* proven beyond a reasonable doubt in the view of all jurors. If a juror thinks there’s a *70% chance* the defendant is guilty, they must vote *not* guilty.
186/ So when someone is acquitted—we have to be clear about this—it means that *all* jurors had more than (approximately) 10% doubt about whether the defendant did what he was charged with. Even if *all* jurors were 80% sure of the defendant’s guilt, it’d be a Not Guilty verdict.
187/ So when I, or Comey, say there’s well over a 50% chance that *all* jurors will find *no* reasonable doubt—even if we disagree on the likelihood that *one or more* jurors will decide they found reasonable doubt in the case (which leads to a hung jury)—that’s saying something.
188/ It’s saying something, as even in the 15% chance Comey and I agree on that there could be an acquittal, that acquittal—a Not Guilty verdict—could well *still* mean that *all* jurors were 80% sure that Trump committed 34 state felonies. *That* is how strong the state case is.
189/ The reason hung juries are rare is because... well, they’re not supposed to happen. They represent an outcome the system, as a system, isn’t happy with. If trials *frequently* resulted in hung juries—and the retrials that usually follow hung juries—the system would collapse.
190/ Our system is *wildly* cash poor—as MAGAs want to funnel more souls into it than any nation on Earth but *not* pay for any of it—so it literally can’t afford to have more than a tiny number of cases *not* reach a unanimous verdict (and instead be tried again at big expense).
191/ So I *agree* with Comey that *usually* hung juries are rare—maybe a 5% chance in most cases (and yes, I have tried major crimes that resulted in all three of Guilty, Not Guilty, and Hung Jury verdicts). But I disagree with him *here* because this jury has been tampered with.
192/ I’m not just referring to the juror who scrambled off the jury after being glared at by Trump—or the second one who begged off *after being seated* due to what evidently was a fear of the case (likely caused by Trump’s glare, which he reserved for the jurors he didn’t want).
193/ I’m speaking of the fact—which media helpfully (for Trump) hasn’t framed this way—that Trump recruited famous folks who jurors would recognize to sit in the gallery in support of him during his trial in part as a way of intimidating at least one juror into an acquittal vote.
194/ When you’re sitting in a trial jury and famous people file in daily to sit on the defendant’s side, you get the message you already had just by knowing who the defendant is: this man is powerful; powerful people want him freed; I’m f*cked if I stand in the way of that. Ever.
195/ Yes, the identity of these jurors is hidden. But the jurors have *already seen* how bad our careless major media is at protecting them; *this jury* lost potential members due to doxxing. Then you have a *visibly angry* former POTUS, and *visibly angry* members of Congress...
196/ ...in the gallery, and a voir dire (pre-trial jury questioning) process that *appears* to have been *resolutely dedicated* to eliminating Trump critics but *ambivalent* about seating Trump fanatics (whether open or crypto). Trump’s sycophants actually went on social media...
197/ ...to urge Trumpists called for jury duty to lie to the court to try to get seated so they could acquit him. And even without that urging, it’s not hard for a Trump fanatic to infiltrate a jury if they are willing to—consistent with MAGAism’s premise—have no core principles.
198/ Or there might be an apolitical juror who simply knows who Trump is, that he’s running for POTUS, and who thinks the same thing a majority of SCOTUS seems to: that rule of law demands an election in place of a trial for Trump, when rule of law actually requires the opposite.
199/ There are *so many ways* for this jury to hang, which is to say so many reasons it might. A *historically large* number of such scenarios, in fact. Which is why I raise the hung jury percentage I’d normally guess (~5%) to more like 20%. But do keep in mind this other fact:
200/ Because juries are tasked with reaching a unanimous verdict—it’s their assigned duty—judges have some tools at their disposal to help avoid a hung jury. Specifically, they can repeatedly admonish the jury that they need to keep working until they come to a unanimous verdict.
201/ *Many* cases *threaten* to become hung juries. The foreperson will send a note to the judge after X period of time saying, We’re locked in our positions and cannot reach unanimity. And the judge will write back, keep working. If it takes 2X or 3X time, you must keep working.
202/ A judge can even directly speak to the jury—not about the facts of the case, of course, but about their need to reach a *unanimous* decision. And jurors can send questions to the judge that would help them reach a verdict, and the judge works with the parties to answer them.
203/ (Some questions are out of bounds, and would usurp the role of the jury, so the judge can’t or won’t answer them, but many of the questions are simply about process, or about asking to see a piece of evidence again, and sometimes those desires can be quickly accommodated.)
204/ So hung juries are rare for a reason: the system does not want them, more or less cannot accept them, and there are mechanisms to avoid them.
But they do happen sometimes, as a juror (or more than one) can dig in and refuse to budge on a position other jurors disagree with.
But they do happen sometimes, as a juror (or more than one) can dig in and refuse to budge on a position other jurors disagree with.
205/ We can all see the many ways—and the many reasons—one juror might decide not to budge *in this specific case*, like the idea that a conviction could permanently ruin their lives (an idea Donald Trump and his friends are desperately trying to send as a message to all jurors).
206/ I’m putting aside here more direct jury tampering: e.g., jurors in the courthouse hearing Trump’s deranged courthouse rants, or somehow seeing media coverage of the case, or even threats or worse behind the scenes (we have no such evidence, but also can’t put it past MAGAs).
207/ This thread will run 225+ tweets, so this is just a brief break to note that while this thread and its expertise are free, if you’d like to tip the author for his work, you can do so, in any amount, at Venmo ([@]SethAbramsonTwitter) or the link below: sethabramson.net/pp
208/ So here’s where I disgorge some (more) news that will sadden many of you: Trump is almost certainly not going to jail even on a conviction in Manhattan. These are non-violent felonies; because of prosecutorial malfeasance in the past in NYC, Trump has no prior record; and...
209/ ...people generally don’t go to jail or prison on charges like these unless they have a record or there are significant aggravating factors at sentencing. (Want to know one of the 99 reasons Trump didn’t testify? Perjuring yourself on the stand can be an aggravating factor.)
210/ Now, having said all this, Trump *does* face up to 20 years in prison on these charges, in terms of the statutory maximum. And that maximum is set if you even have *five* charges; Trump faces *34* felonies, here.
And he committed these felonies to steal a national election.
And he committed these felonies to steal a national election.
211/ Trump also put on a disgraceful defense, which candidly can affect a judge’s thinking at sentencing. There’s challenging the sufficiency of the evidence—which Trump has every right to do—and then there’s spinning an insane yarn as a defense that has *no* evidence behind it.
212/ Trump calling disgrace to the legal profession Bob Costello to the stand—I’ve explained elsewhere why I take that view—led to Judge Merchan having to clear the court, during which Merchan accused Costello of being contemptuous of the court and trying to intimidate the court.
213/ Trump attorneys went over the line in certain questions of Daniels and Cohen. Trump was contemptuous of the court very often—with curses, facial expressions, glaring, intimidating witnesses, obviously taking actions to violate his gag order that endangered court officers—...
214/ ...so Judge Merchan has more reason with *this* defendant than perhaps any other defendant who has ever appeared before him to know that Donald Trump not only clearly committed these 34 felonies as charged but doesn’t and won’t *ever* feel any regret or remorse for doing so.
215/ Judges can take all that into account at sentencing as well.
But even so, sentencing a first-time non-violent offender to jail or prison—something MAGAs *categorically demand* when a defendant is poor and nonwhite—is actually quite rare in our justice system, thus unlikely.
But even so, sentencing a first-time non-violent offender to jail or prison—something MAGAs *categorically demand* when a defendant is poor and nonwhite—is actually quite rare in our justice system, thus unlikely.
216/ And even if Trump is convicted and then gets a brief jail sentence (a few months) followed by a lengthy period of probation in which a large *prison* sentence is hung over his head on his good conduct, he can appeal that sentence, and would likely stay out of jail on appeal.
217/ Simply put, in a state criminal case with a semi-novel legal theory; involving a historically unusual defendant; where the defendant has no record and the charges are nonviolent; and where any jail sentence would be brief, a judge won’t risk holding someone during an appeal.
218/ The reason is that *lawless* lawyers—Alito; Thomas—*love* non-justiciability, but real lawyers try to avoid it. A Trump appeal in this case could take months or years, and Judge Merchan does *not* want Trump to have already served any sentence before the appeal can be heard.
219/ Again, this is just a distinction between a lawyer and a cultist. MAGAs appear—to my eye as a Trump biographer—to be unable to tell the difference between the two or to not care about any difference. Or both. But responsible lawyers understand and can unpack the distinction.
220/ And a hung jury would be even better for Trump, for too many reasons to count.
221/ A hung jury not only gives Trump a rhetorical win—he can say this case was so borderline the Manhattan District Attorney’s Office couldn’t get the unanimous guilty verdict it had to have brought this case expecting—but also could raise doubts about whether the State can win.
222/ Keep in mind that a hung jury can hang *many different ways*—11-1 for Guilty, 6-6, 11-1 for Not Guilty, and so on.
*Some* of those permutations would suggest to the State that unless it dramatically changes how it presents the evidence next time out, it won’t win a retrial.
*Some* of those permutations would suggest to the State that unless it dramatically changes how it presents the evidence next time out, it won’t win a retrial.
223/ So, about retrials:
(1) They’re not guaranteed. The State gets to decide if it wants to re-try the case.
(2) They often happen fairly quickly—as the parties are already prepared for the case, by definition—which means that a hung jury could lead to a July or August retrial.
(1) They’re not guaranteed. The State gets to decide if it wants to re-try the case.
(2) They often happen fairly quickly—as the parties are already prepared for the case, by definition—which means that a hung jury could lead to a July or August retrial.
224/
(3) Here, a retrial is pretty good for Trump because (a) it clogs up his summer calendar, making it harder for other courts to schedule other trials that are more likely to incarcerate him and (b) he gets to play the victim the whole election cycle—which he candidly wants.
(3) Here, a retrial is pretty good for Trump because (a) it clogs up his summer calendar, making it harder for other courts to schedule other trials that are more likely to incarcerate him and (b) he gets to play the victim the whole election cycle—which he candidly wants.
225/ And remember, the *worst* that happens after a retrial is simply what I (and almost all attorneys) think is far more than 50% likely to happen right now: a conviction that doesn’t lead to a jail sentence but a lengthy appeal that influences whether we can call Trump a felon.
226/ To be clear, if Trump is convicted he’s a convicted criminal—a felon. Full stop. He obviously would have no business as a major-party nominee, let alone a POTUS. But as long as his case is on appeal, he’ll *say* it’s going to be overturned, and MAGAs will conveniently agree.
227/ I would *not* believe polls saying Americans will not vote for a convicted felon. Yes, between 10% and 25% of MAGAs are telling pollsters this, because it’s an easy thing to say, there are no consequences to saying it, and it seems like the thing to say.
But MAGA is a cult.
But MAGA is a cult.
228/ The whole point of being in a cult is the feeling of belonging it provides, and MAGA will excommunicate anyone who even *hints* that a conviction disqualifies Trump. Another key facet of being in a cult is that the Leader can redefine reality *instantly*—which will happen...
229/ ...if Trump is convicted. Getting convicted—which *Trump himself previously said* was disqualifying (actually he said even being under investigation was disqualifying) when it was Clinton whose acts were under review—will suddenly become a *badge of honor*. A *good* thing.
230/ So I struggle to see how any outcome in the Manhattan case affects Trump’s political prospects—or freedom; or public persona; or public perception of him—at all. But it’s not for the reason media likes to imply: that Trump’s NYC case isn’t a serious one. It’s *very* serious.
231/ As I wrote about in another thread—and I will shortly aggregate *all* the links to my Trump Trial threads (1,200+ tweets) over at PROOF ()—this isn’t a “hush-money” case, it’s a Falsifying Business Records and Election Fraud case involving 34 felonies.sethabramson.substack.com
232/ While those felonies might be the lowest-level felonies New York has, they *are* felonies—and there are 34 of them—and the case carries a maximum penalty of 20 years in state prison for good reason. And it wouldn’t be hard to argue that there are aggravating factors, here.
233/ That Trump committed these crimes to defraud American voters is huge. That he has no remorse whatsoever is huge. That there is evidence that he got others to lie for him—and tried to convince still other witnesses to lie who would not—is likewise huge.
But that is not all.
But that is not all.
234/ He repeatedly violated court orders and showed contempt for the court. His actions endangered countless hundreds, from the judge and prosecutors and court officers and their families to members of the public who gathered outside the courthouse (albeit in very small numbers).
235/ This case included conduct by Trump that *wasn’t objected to or kept out of evidence* and revealed a man of *very* low character—a man who lures women to his lair, then pressures them into sex; a man whose entire business milieu runs on fraud and lies rather than enterprise.
236/ And the judge can consider all of that.
He can also consider something else that I suspect only an attorney who has tried a lot of cases would think about, or would be as interested as I am in unfolding to all of you now.
Something most don’t know about our justice system.
He can also consider something else that I suspect only an attorney who has tried a lot of cases would think about, or would be as interested as I am in unfolding to all of you now.
Something most don’t know about our justice system.
237/ Our system *needs* people to plead guilty who are guilty, and it has endless methods to ensure that happens.
The reason 90% of all criminal cases end in guilty pleas is partly because most of those caught up in the system are guilty of *something*—if often not *exactly*...
The reason 90% of all criminal cases end in guilty pleas is partly because most of those caught up in the system are guilty of *something*—if often not *exactly*...
238/ ...what they’re charged with (one of many reasons attorneys are vital *even in cases that plead out*)—and partly because the system is *designed* to force pleas. And it’s designed this way because financially it could not run any other way. Republicans have made sure of it.
239/ One of the *biggest* ways the system forces guilty pleas from people who—like Trump—are absolutely, undeniably, 100% fully guilty of everything they are charged with is by punishing them for making the cowardly decision to go to trial rather than plead guilty short of trial.
240/ And let’s be clear: I’m *only* referring to people here who are actually guilty of what they are charged with; who know that they are guilty; who have been told by their lawyers that they are guilty; and who know they have no viable defense. Which is Trump in this situation.
241/ Our system punishes those people if they waste taxpayer money—a huge amount of it—by exercising their right to go to trial rather than simply taking responsibility for their conduct the way that {*checks notes*} MAGAs have been saying from the jump is a core value for them.
242/ This is why state prosecutors *regularly* offer no-jail offers to defendants that *disappear* if those defendants choose to go to trial. And prosecutors will *openly* say that the offer is disappearing *because* the defendant is wrongly, selfishly, and in cowardly fashion...
243/ ...forcing state officials from multiple governmental branches—as well as the average citizens who must sit on juries—into a time-consuming, expensive, needless civic ritual that takes resources away from other things the State could and should be doing.
This is said daily.
This is said daily.
244/ In every U.S. court, every single day, a prosecutor is *more than once* making no-jail offers pretrial that they *promise* the defendant will become requests for jailtime if they go to trial. In *theory*, prosecutors save this for only the most obviously guilty defendants...
245/ ...but that’s not how it actually works out. Almost *every American defendant* is told that if they force the State to trial, they will be punished for doing so upon a conviction. And in a narrow sense, we can understand this: how else to ensure that 90% of defendants plead?
246/ But what happens in a case, like Trump’s in Manhattan, where jail *isn’t* expected? Can that defendant simply willy-nilly go to trial—with no defense whatsoever, wasting everyone’s time and energy and money—knowing it won’t matter and won’t hurt them at all on the back end?
247/ The answer, with a *conventional* defendant—poor and/or nonwhite—is, sadly, *no*. Such a defendant, even one with no criminal record facing nonviolent charges, will typically face *some* punishment for rejecting a pretrial no-jail offer. At least in your average state court.
248/ Pretrial, the prosecutor might have offered a twelve-month deferred sentence (so you get a conviction and have a year-long jail sentence over your head for a year on your good behavior. If you get arrested during that year, the State can ask to have the sentence imposed).
249/ In the same case—again, a defendant with no prior record facing nonviolent charges—the State will, post-conviction after a trial, ask for, say, a week in jail and then the *remainder* of a twelve-month deferred sentence (so, a year minus a week) over your head for *2* years.
250/ The prosecutor will paint this as a *public policy* decision: defendants who reject deals pretrial *must* expect a worse outcome following a conviction at trial. Mind you, *judges* do not have to accept prosecutors’ recommendations, but many of them are former prosecutors...
251/ ...and so they lean toward prosecutors’ recommendations naturally *and* often feel the same biases prosecutors do: that defendants who are guilty but will not plead guilty are shaming themselves and harming the State, and have to face real consequences for both those things.
252/ So yes, Donald Trump, for all of the foregoing reasons, *should* face some *small* jail sentence on a conviction—because in fact *you or I would* in the same situation, for the eldritch and never-talked-about reason I have just explained as a former longtime public defender.
253/ This thread will run 275+ tweets, so this is just a brief break to note that while this thread and its expertise are free, if you’d like to tip the author for his work you can do so, in any amount, via Venmo ([@]SethAbramsonTwitter) or the link below: sethabramson.net/pp
254/ So will that happen in *this* case? No, I don’t think so—despite the fact that Trump had no defense, knew he was guilty, put on a profoundly immoral non-defense, repeatedly violated court orders, intimidated jurors, tampered with witnesses, and showed contempt for the court.
255/ Judge Merchan will be concerned about violence—mob violence or targeted assassinations—and he’ll know any appeal would in any case push that week- or month-long jail sentence off months or years, certainly until after the election. And if Trump wins, how do you *enforce* it?
256/ A jail sentence—however short—would also *increase* the odds of an appeal overturning the guilty verdict, as judges above Merchan could potentially be so concerned about the prospect of New York trying to jail a potential future POTUS that they’d *look* for bases to reverse.
257/ Moreover, what I just explained to you all is a rule applied against poor and/or nonwhite Americans—which is as good as saying major media almost never asks about it and the system never has to explain itself to anyone. In this case, the practice would come in for scrutiny.
258/ And obviously that scrutiny could not be easily borne, because we *tell* ourselves that, constitutionally, everyone has a right to a trial without fear that exercising that right leads to a special punishment for doing so. But that practice also cannot change—ever—because...
259/ ...the party Trump leads has *ensured* that our justice system will be so perpetually starved for funds that it *has* to force pleas or else it will *literally* collapse—and maybe even collapse within a matter of *hours*.
Yes, really.
All of which creates an insane irony:
Yes, really.
All of which creates an insane irony:
260/ The *one time in American history* that our criminal justice system could show someone in a position to do something positive about it how our system *really works*—and do so in a way that would be indelible to that politician—it is going to do the *opposite* and coddle him.
261/ And as ever, major media will be there to cheer it on.
The bad thing, I mean—the disgrace.
The bad thing, I mean—the disgrace.
262/ The reason U.S. major media hires former federal prosecutors or former white-collar criminal defense attorneys as pundits is so you’ll get the portrait of our system from the perspective of white-glove practitioners who have never been in the trenches of indigent defense.
263/ So legal pundits—many of whom are well-meaning; many of whom I respect; many of whom are on networks I watch (CNN, MSNBC), but who are strait-jacketed (as we all are!) by their experiences—will tell you that these charges, for a defendant with no record, do not lead to jail.
264/ And I’m telling you that that’s technically correct as a matter of precedent, because these charges are usually brought against middle-class or rich whites and because *even then* such defendants almost never go to trial unless they have a valid defense. Which Trump doesn’t.
265/ And even those record-less first-time defendants accused of nonviolent white-collar offenses usually are facing fewer than 34 felonies; and usually weren’t trying to steal a national election; and usually didn’t tamper with jurors and witnesses; and usually didn’t violate...
266/ ...court orders ten times; and usually didn’t call a witness who tried to stare down the judge; and usually didn’t take *weeks and weeks and weeks* of court resources on a case they should have pleaded out immediately; and usually didn’t cause threats to be made against...
267/ ...the judge and his family and prosecutors and their families and *all* personnel working in the court—as this courthouse has now faced *many* threats—and usually there’s *some remorse... and... and... I could go on in this vein basically forever, I think you all know that.
268/ So yes, Trump is guilty and almost certainly will either be found guilty now or after a post-hung jury retrial. And yes—this *is* a case that should carry a small jail sentence, if it’s going to reflect the grotesque facts of the case (including what Trump did to Daniels)...
269/ ...and all the other things I mentioned as well as those I haven’t, and if it’s going to subject a career criminal, Donald Trump, to the same form of justice the rest of us are subject to and that the MAGA camp claims to support so long as the defendant is nonwhite and poor.
270/ But that won’t happen. Trump will likely face no real consequences in Manhattan. For the simple reason, and I’m going to say this just once and as clearly as I can, that Donald Trump is the most *artificially protected criminal defendant* in the history of the United States.
271/ But I also want to make a *second* statement here that’s equally true, and that I’ll try to state as simply as I can: Donald Trump poses a greater danger to our rule of law—and has shown more contempt for our justice system—than *any criminal defendant in American history*.
272/ And these facts alone should put him in a situation in which he *does* face *months* of jail in his Manhattan case. Because he has lawless judges, domestic terrorists, and an entire political party acting as a neo-fascist front group trying to use him to destroy rule of law.
273/ And judges absolutely *do* think—and are allowed to think—about public policy considerations in sentencing. In fact, I dare say this sort of thinking occurs, even for all that it often goes unsaid, in nearly *every* criminal case in America. Why should this one be different?
274/ Donald Trump’s unprecedented contempt for rule of law—contempt for the court; jury tampering; witness tampering; obstruction; incitement; *all* of which was in evidence in this case—was not *merely* strewn about this case. It has become Trump’s singular *political identity*.
275/ We tend to think—I’ve an idea why—that the worst sort of contempt a defendant can show toward our rule of law is a situation like the infamous one from a few months ago in which a nonwhite defendant launched himself over the bench to go after a judge.
Trump’s so much worse.
Trump’s so much worse.
276/ Donald Trump isn’t a man who wants to get a few punches in on his sentencing judge (which is obscene, abhorrent, and requires severe punishment, of course). What *Trump* wants is to *murder* our *entire system of government*, of which only *one* component is the rule of law.
277/ Nor is Mr. Trump’s intent some hidden, baroque, byzantine, shadowy ulterior motive that can only be guessed at. Say it with me, now: Donald Trump daily acted *in his case in Manhattan* as though that is *exactly* the man he is and is *exactly* what he wants to do to America.
278/ Calling a witness *in your defense* who *stares down the judge*? WTF!
279/ *Recruiting national celebrities* to violate your gag order *for you*, and doing so *after* you violated that very clear and very simple order double-digit times and were threatened with immediate incarceration if you did so again? WTF!
280/ Accusing a woman you forced into sex of making it all up—accusing for hours and hours—when you know she didn’t? Calling your own friend and fixer and attorney and agent and employee a piece of sh*t for simply doing all the things *you told him to do* for fifteen years? WTF!
281/ Staring down jurors? Cursing audibly in court? Attempting to testify *without cross-examination* through head movements in response to adverse testimony? Trying to shake a witness’ hand pre-testimony? Making public statements to influence potentially friendly witnesses? WTF!
282/ Lying about things the *judge* said during pressers held mere feet from him, in court recess after court recess? WTF!
283/ Trying to incite *violent mob actions* against the courthouse while it’s in session? WTF!
284/ I’m telling you that the way this man acted *in court* is like nothing I’ve seen or even *heard* of in the 20+ years I’ve been an attorney. And it was a *literal embodiment* of what Trump is promising to bring to all of America.
Nor is this just some rhetorical positioning.
Nor is this just some rhetorical positioning.
285/ This is a man facing 88 felonies in four U.S. jurisdictions *right now*. This is a man who has been found liable for *over half a billion dollars in civil damages* in *just the last year*. And this is a man who likely has more criminal and civil cases coming down the line.
286/ He’s an unindicted co-conspirator in the Arizona January 6 case. He’s an unindicted co-conspirator in the Michigan January 6 case. DOJ still has Theft charges it can bring in DC—as well as additional January 6 charges it hasn’t yet brought. E. Jean Carroll has, right now...
287/ ...yet another cause of action she can bring in a Defamation case that began with Trump *raping* her by the lay definition of the term, per the court. The last time she sued him he was assessed hundreds of millions in damages. Next time will be more. washingtonpost.com/politics/2023/…
288/ Bipartisan and DOJ federal reports outlined at least a dozen federal Obstruction crimes by Trump in the Trump-Russia scandal that he was inexplicably never charged with. He was impeached twice. He has been accused of sexual assault by 25 women. He incited an armed rebellion.
289/ Do I even need to go on? This man is the living, breathing, walking embodiment of not just a danger to women and our economy and our elections and our democracy but literally everything he comes in contact with. He is—as Tucker Carlson once privately said—a vile *destroyer*.
290/ And we should look at the NYC case—where all of this was on display—as analagous to the average white-collar defendant with no record facing nonviolent allegations? No—I don’t think so. Judge Merchan can *and should* take all he’s entitled to take into account, into account.
291/ We’ve never before seen a corrupter on this scale—a man whose cult encompasses a federal judge in Florida who’s thrown judicial ethics to the wind to save him, whose cult encompasses a decades-long degradation of our nation’s highest court into the lawless gang we see now...
292/ ...a man who openly threatens to criminally and corruptly end his own cases as POTUS *after* being the first POTUS to be impeached twice—and facing the first two bipartisan votes ever for *conviction* (no other president has had members of his own party vote to convict him).
293/ A man who for reasons no one can explain has escaped Rape arrest after Rape arrest for decades, who made Theft and Fraud his conspicuous, even unabashed business model—signing contacts he never intended to honor that he instantly reneged on after he got his part of them—...
294/ ...and spreading racism and antisemitism to the point that he’s confirmed to have supported using the United States Armed Forces to *kill unarmed protesters* on US soil (this was during the 2020 George Floyd protests in DC) *and* promises to be a “dictator” in a new “Reich.”
295/ Attorneys who’ve actually represented indigent criminal defendants can debate how much of all this can and should be used in sentencing—and candidly those are probably the only attorneys I personally want to hear from on *that* question—but some of it certainly can and must.
296/ In New Hampshire we have PSIs—pre-sentencing investigations—in which a neutral party writes a report on the defendant to give the judge a view of what sort of man he’s dealing with before he issues a sentence.
A lot goes into such reports; all states have something similar.
A lot goes into such reports; all states have something similar.
297/ Such a report on Trump would identify him as a dangerous sociopath who feels no remorse, will reoffend, is a career criminal, and seeks to overthrow America’s system of government. It’d quite possibly urge a state judge looking at 34 felony convictions to consider some jail.
298/ But don’t hold out hope for that. As depressing as it is to say, the *only* recourse Americans have left is to vote—and we’ll be voting in the context of one political party having declared total war on the rest of us, and the Democrats still acting like it’s the late 1980s.
299/ And we’ll be voting in the context of a disinformation network that’s international, that aims to elect Donald Trump, and that’s successfully created wild misapprehensions among American voters (e.g., the economy is bad; Biden caused the war in Gaza, not Trump and Netanyahu)
300/ It doesn’t matter what the Supreme Court does in Anderson—the MAGA Majority of the Court already won by creating an appellate regime in the Georgia and DC cases that will delay them until after November. Florida was lost when DOJ handed the case to Cannon. NYC is what it is.
301/ I hope you won’t hate me for speaking the truth as I know it as an independent journalist. I believe truth—like rule of law—empowers. If you still wish to tip for this thread and its expertise, you can do so via Venmo ([@]SethAbramsonTwitter) or here: sethabramson.net/pp
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