I’m sure there is some plea that could be found that the government would accept. The problem is, Trump would have to admit guilt to something, and that he was wrong to what he did. And Trump is just fundamentally incapable of admitting to mistakes, even if that admission would be to his own benefit. His mental deficiencies simply wouldn’t allow it.
I mean, just look at this case. He had multiple opportunities to just give these documents back, which would have avoided all this fuss, and he just could not do that. He thought the documents belonged to him, that he was entirely in the right, and that everyone else was acting illegally just because they hate him, and nothing could dissuade him from that.
If I were in charge, I’d consider having a guilty plea some months prior to everyone voting about whether or not he should be president again to be worth something. I wouldn’t let him completely off the hook, but I would be willing to make the hook smaller, in exchange for some certainty.
Trump may entertain the notion of entering a plea agreement if he loses the election, but if he loses the election, it’s hard to see what benefit there is to be had for Jack Smith to make an attractive plea offer.
“Judge” Cannon will have lost whatever incentive she may have had to baldly fix the case for Trump and may have some basis for behaving more in line with the law than she has thus far, such as staying on the right side of the Eleventh Circuit, so Smith’s case may not be as hopeless as it would have been had it been tried pre-election. While it’s true it is very difficult to remove a judge with lifetime bench tenure, there are other reasons for a judge to change their wicked ways.
I think a lot of people underestimate just how serious this case is. Trump directly compromised our national security with his theft of very highly classified and sensitive intelligence. He also indirectly compromised it by causing understandable doubt on the part of our allies about the extent to which they can safely share their intelligence with us. These things alone leave us extremely vulnerable.
I don’t think Jack Smith believes this is a case worthy of an offer of a misdemeanor – which would be the only sort of plea Trump might entertain. Nor do I think Smith will agree to a no-jail-time offer.
There’s either a full dismissal or a trial ahead, IMHO. And it all hinges on what the Eleventh does with Aileen Cannon.
This is an important point. This was not just a test of wills between the government and some asshole. This absolutely made us less safe.
Multiple experts have said no one should be confident that foreign agents did not gain access to the records. One described it as “spy malpractice” if they passed up this treasure trove, where all you needed to access it was to ask which way the bathroom was.
Second, as you point out, our sources will be much less likely to cooperate, lest they get compromised. This was and is a big deal.
What do you think Trump will do with these documents if he becomes President? Your imagination can run wild and it still won’t conceive of what is possible.
It’s important, but I’d offer a very generous plea deal. You’re basically dealing with a crazy pro se defendant and pro se Judge and it’s extremely unpredictable. I can’t imagine this ending with a guilty jury verdict (eg, the facts clearly support it, but just everything that would have to happen to get to that point).
And I think it’s worth noting that past performance is no indicator of future returns.
The 11th Circuit is quite the grab bag of R- and D-appointed judges. A random pick of three (out of 12) judges [ETA: or the full bench] could really land you anywhere.
He most assuredly does. That’s why I think he’ll file the motion in limine asking Cannon to make a dispositive ruling on the PRA issue. The law is extremely clear on it, and it will be hard for the Eleventh to ignore if Cannon pretends it is applicable. It just isn’t, and even judges who skew super Republican don’t seem quite ready to grant this extraordinary remedy to not just Trump, but any sitting or future president.
Once she has ruled, Smith can either take the case to the Eleventh for Cannon’s error or he will have a ruling that precludes Cannon from using her PRA “reasoning” to grant Trump’s renewed motion after jeopardy attaches.
While there’s a political angle to judicial promotion, you also move up the ladder by writing better, more nuanced decisions that earn you respect. Most of the judges who were appointed and promoted during Trump’s administration, did so under the guidance of Mitch McConnell and the Senate, not Donald J Trump.
That thought isn’t necessarily going to make you feel all tingly and warm all over, but there is a difference between “ideologically opposed”, “corrupt”, and “crazy”. If Trump had been a person with a habit of paying attention, there’d be a larger risk of the latter two. While I’m sure that Trump did sneak a few of those stripe into the mix, the majority of judges will have been of the first type, because they were picked by McConnell and the Federalist Society.
If you read the Volokh Conspiracy, for example - a collection of lawyers who are members of the Federalist Society - they’re almost unanimously opposed to Trump’s legal interpretations.
In general, Trump isn’t going to get a lot of love as his cases move up the ladder. He’s got better odds at the lower levels.
Except in murder cases, it is normal, in the American legal system, for the prosecution to offer substantially lesser charges in return for giving up the right to trial. I don’t see why Trump would be treated differently if he lost the election and thus became interested in a deal (or, at least, his more competent attorneys would be interested).
As for the “benefit to be had for Jack Smith”, I will suggest three letters I may never have put in a post before — WTF. Smith should be seeking equal justice for victims and defendants - not some benefit, psychic or otherwise.
I’ll quibble with the modifier “substantially.” It happens, but in most places I’ve practiced (including federal criminal cases) you can get a “slightly” better deal if you plead guilty. Substantially lesser charges are not common, and would probably be the result of some proof problem (not present here). I would never expect the government to take a charge as serious as this one and offer a sweetheart deal.
I’m only going off my 20 years of experience in the legal field, most of it in criminal courtrooms as a participant in cases at all stages of trial, and that was certainly not the case IME.
I’m sorry. Let me paint it by numbers for you: “Benefit to be had for Jack Smith” as our representative on behalf of the government and the American people.
Trump has already dragged this process out and dragged through the mud Smith, the Department of Justice, and the United States justice system. I think the time to plead out in exchange for substantially lesser charges has passed. At this point I’d rather see Smith try to nail Trump and fail than to give him a sweetheart deal.
I don’t think we have to worry. Based on past performance, Smith strikes me as the type who would prefer to go down in flames doing the right thing than to compromise his principles or the strength of his case – which is extremely strong in this instance, at least with respect to the facts if not the draw of the judge.
I support him in this. At some point, you just have to trust that judges will administer justice as intended and not for a particular political outcome. Cannon has shown her willingness to rule on the basis of preferred outcomes, but I don’t think the Eleventh Circuit has. In fact, just the opposite.
That’s why I believe Smith will have a chance at a judicial reassignment with an erroneous Cannon ruling on a motion in limine.
And if by some chance Cannon admits defeat and issues a ruling that puts the PRA issue to bed pre-trial, then Smith no longer has to worry about that particular avenue of an engineered political outcome.
Although there might be others. She’s going to work hard at it, looks like.
I really hope you are correct, and Smith does go this route. I can’t see any chance she rules the PRA gives Trump (or any current or future president) the right to do whatever they choose with any confidential documents including nuclear secrets at any time even after they finish their term. This would just be an insane ruling that I can’t see being accepted on appeal.
Biden didn’t do any of the things Trump is charged with.
Trump is charged retaining and failing to deliver national defense documents under US code 793e.
(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
He’s not being charged for taking the documents. He’s not being charged for having them in his home. He’s being charged with not giving them back. Joe Biden plainly did not do this. There is no part of 793 that applies to Joe Biden which is why he wasn’t charged. It’s also why Robert Hur invented his little fairy tale that Biden kept the Afghanistan documents to deliberately because they vindicated Biden’s views on Afghanistan. It’s a ridiculous idea and the story doesn’t really make sense if you look closely at it.
On top of that Trump is charged with six counts of obstruction and one charge of making false statements. Trump tried to play some kind of shell game with the boxes and then he lied to the FBI about it and attempted to destroy evidence to cover that shit up. These are real crimes and virtually none of the defenses Trump has offered in or out of court come close to wiping these away.
Even if Trump declassified the docs, he’s not allowed to lie to the FBI and destroy evidence.
Even if the docs were personal, he’s not allowed to lie to the FBI and destroy evidence.
Even if he has immunity for any act he undertook while president, he’s not allowed to lie to the FBI and destroy evidence.
These are crimes plain and simple and all occurred in 2022 or 2023 while he was a private citizen. And Biden never did anything that even remotely resembles these crimes and that will be obvious to everyone if this case ever gets to trial. There is no similarity here. None.
This is the part that needs to be shouted from the rooftops. Even if we granted Trump all his BS about the PRA, that doesn’t address any of these other crimes he committed during this fiasco. I can’t imagine a jury seeing the evidence we’ve already seen just in the indictment documents, and concluding that Trump didn’t do exactly what he’s been charged with on these points. He’s plainly guilty.
I have to imagine that the Trump defense team – precisely because they have nothing – will seek to use the PRA as the basis for getting the Obstruction and False Statements charges tossed.
If you think I stole your car, and my defense is that it’s not your car, it’s mine, then you have to wonder how far that argument would go in explaining and doing away with any ‘bad behavior’ on my part in avoiding turning the car over to you at any step along the way if and when I convince the trier of fact that it actually was my car to begin with.
NB: this is “from whole cloth” bullshit, and not anything that I believe, but the Trump lawyers will NOT have NO defense. They’ll have something. This is where I see them heading if the PRA bullshit isn’t dispensed with toot sweet.
Because otherwise, whatever they can or cannot do with the Willful Retention charges, they have him dead to rights on Obstruction and False Statements.