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This week I will take some questions, point to an example of solid journalism and share an excerpt from a key legal opinion.
A reader asks: Former President Donald Trump does not show remorse for the crimes for which he has been convicted. My understanding has been that a primary factor in sentencing is the degree of remorse (or, in this case, complete absence and denial). Why is that not mentioned more?
Answer: It is certainly one factor, although the defendants pursuing an appeal, as former judge Nancy Gertner recently pointed out in the New York Times, are not expected to sabotage their chances for a new trial by confessing and expressing remorse. That said, Trump's contempt for the legal system, his ongoing threats and smears, and his record of inciting a mob to violence (on Jan. 6, 2021) all weigh in favor of some jail time.
A reader asks: We know there are Republicans disenchanted by Trump who may not wish to vote for him in November. However, what alternative do they have? Surely most would avoid voting for President Biden. But if they want to vote for their conservative values, Trump is the only apparent choice. What can well-meaning, anti-Trump conservatives do with their votes? Is not voting at all their only choice?
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Answer: Trump is no conservative. He holds views that are utterly contrary to conservative philosophy: arguing he can suspend the Constitution, itching to reward Vladimir Putin's aggression and vowing to lock up opponents. If they love the Constitution and the rule of law, these Republicans have only one choice: President Biden.
A reader asks: Can't US libel and slander laws be made forceful enough to punish those who falsely defame judges? Freedom of speech doesn't mean freedom to say anything, especially if patently false.
Answer: The issue is not the law. Judges do not want to sacrifice their own impartiality by suing a party or former party. They have other means of holding parties and lawyers accountable, including use of contempt and taking defendants' threats and smears into consideration when it comes to sentencing.
A reader asks: I thought Republicans supported anyone/everyone who wants a gun to have one: alcoholics, dementia patients, people who have restraining orders against them, people who have suicidal thoughts, people who make threats to elected leaders, etc. If that is the case, why is Hunter Biden being excoriated in court for what seems like a personal tragedy? He wanted to buy a gun, and he thought his addiction was under control. Sheesh.
Answer: Moreover, given that such gun cases are virtually never prosecuted, here is a real case of selective prosecution! Do not expect anything but hypocrisy all the way down the line from the MAGA crowd.
A reader asks: What are your views regarding the likelihood of the military [assisting] Trump in his dictatorial rule? This is a serious question.
Answer: It is a serious issue. The military is imbued with deep respect for civilian leadership. That means it would likely follow ill-advised, misguided and outright foolish direction (e.g., removing troops from Europe). But it is also deeply steepened in reverence for democracy and the Constitution. For example, I do not think military leaders would follow orders to fire on fellow Americans. That we are even discussing this — and banking on the military to stop Trump, if need be — tells us he should not get anywhere near the Oval Office.
A reader asks: Why doesn't the Biden campaign run ads of Republicans, including Mitch McConnell and Lindsey Graham, denouncing Trump on Jan. 6? How about ads of Trump's unhinged speeches (with subtitles)? Or of Republicans such as William P. Barr declaring no indication of widespread fraud in 2020? And, most importantly, 24/7 ads about Trump and overturning Roe v. Wade? Can they run these types of ads nonstop on Fox News?
Answer: The campaign is doing many of those things already and will do more. Keep in mind that many people are tuned out. Many watch very little TV, and Fox News viewers may not be the target audience. Much better to run ads during sporting events and popular daytime TV (e.g., “The View”).
A reader asks: Wouldn't it be appropriate for Hillary Clinton to attend [Trump’s] sentencing hearing and giving a victim's statement on behalf of herself and the American voters? I've heard legal pundits say that this crime has no tangible victims, and therefore it would be difficult to impose a maximum sentence. Isn't the American electorate the victim who was deprived of the information needed to make an informed decision in 2016?
Answer: The last thing we need to do is make this about Hillary Clinton. It wouldn't influence Justice Juan Merchan, but it would give credence to the lie that the trial is all about Democrats persecuting the MAGA leader.
There could be no bigger contrast between presidential candidates with regard to the rule of law. Biden has not interfered with the Justice Department's prosecution of his son. He has also avoided making accusations of selective prosecution and vowed not to pardon his son. Trump, meanwhile, threatened retribution for those who have investigated him (including locking up members of the House Jan. 6 select committee) and smeared the judge and jury in his New York trial. It's impossible to ignore that we have one candidate who fulfills his oath and one who has shown he is entirely incapable of upholding his.
This headline from the New York Times got it right: “Trump's Vows to Prosecute Rivals Put Rule of Law on the Ballot.” Its subhead was equally insightful: “Donald Trump's promise to seek retribution challenges long-established norms. The election could hinge in part on what kind of justice system the country believes it has now and wants in the future.”
There are several things worth emphasis here: First, since many readers don't go beyond the headline, it got the essential message right there. Second, the report took Trump literally and seriously, putting his threats in the context of our judicial system and democracy as a whole. The report did not treat it as a “clever strategy,” nor did it speculate as to whether it would “work.” Third, the piece quoted several legal experts, including a libertarian and a pro-Trump conservative to explain why personalized and politicized prosecution is dangerous. And, finally, the reporters did not feel compelled to give voice to MAGA voices' false accusation that Biden had concocted the New York criminal trial. Kudos are in order for “explaining the stakes” and conveying Trump's unprecedented campaign of vengeance.
District Judge Aileen M. Cannon, in another stunt to delay the Espionage Act trial against Trump, not only entertained a frivolous motion challenging the constitutionality of Special Counsel Jack Smith's appointment but also invited three groups of amici curiae (or “friends of the court”) to file briefs and participate in oral arguments about the motion, a virtually unheard-of practice.
Fortunately, constitutional scholar Matthew Seligman, on behalf of an esteemed group of former prosecutors, lawyers and scholars, filed one such brief opposing the absurd Trump motion. Seligman obliterates the argument challenging the special counsel:
Defendant Donald J. Trump and his amici contend that the appointment of Special Counsel John “Jack” Smith is unlawful. That contention is demonstrably incorrect. The Appointments Clause of the Constitution authorizes Congress to vest the power to appoint “inferior officers” in the Attorney General as the head of the Department of Justice. US Const. art. II,§ 2, cl. 2. As the Supreme Court has confirmed, a special prosecutor empowered to investigate and prosecute a particular criminal matter is such an inferior officer. See Morrison v. Olsen, 487 US 654, 670-71 (1988); United States v. Nixon, 418 US 683, 694 (1974). Congress, in turn, exercised that power under the Appointments Clause by vesting the Attorney General with the power to “appoint officials … to detect and prosecute crimes against the United States.” 28 USC § 533. Attorney General Merrick Garland, acting pursuant to that statutory authority and consistent with the Department of Justice's regulations, then appointed Special Counsel Smith …
Seligman might as well have added that Cannon's decision to entertain such an absurd motion — let alone invite outside attorneys to conduct what amounts to a debate — is further evidence she shouldn't be on the case, a view shared by attorneys of all stripes, including Ty Cobb, who represented Trump during the Robert S. Mueller III investigation.
Evidence grows with each of Cannon's delays and laborious briefing exercises that she is either deliberately aiding Trump, incompetent or so anxious about trying the case that she has resorted to stalling (perhaps some combination of all of these). At some point, Smith should move to recuse Cannon, who blemishes the bench with each inane ruling.
Next week I'll have my online chat, so please submit your questions. Questions submitted after next Wednesday will go to my next mailbag newsletter.
