The judge in Trump’s federal persecution…er, prosecution has set Trump’s trial for August 14, which is only nine days before the first Republican presidential debate. Although it seems as if the judge wishes to get the matter cleared before the election itself, there is a smarter way to go…assuming one trusts the conservative judges on the Supreme Court to abide by the Constitution (which I’m not sure I do).
This morning, Judge Aileen Cannon (a Trump appointee) issued a scheduling order setting a trial date in the Trump matter. It states in relevant part as follows:
This case is hereby set for a Criminal Jury Trial during the two-week period commencing August 14, 2023, or as soon thereafter as the case may be called. [snip] All pre-trial motions…must be filed by July 24, 2023.
She also left open the grounds for pushing the trial back (or “continuing” it) to a later date. There are a lot of things to be said here.
First, as noted, the trial is set to take place as Trump prepares for the first Republican debate, which is scheduled for August 23. Trump has remarkable focus, but preparing for a nationally-televised debate while you’re engaged in a two-week trial that can end with your getting a 100-year-long prison sentence before a hostile mediator (Fox News is sponsoring the debate) is ludicrous.
Second, considering the immensity of what’s going on, giving a defendant only eight weeks to prepare for a two-week trial is ridiculous.
Third, it’s more than likely that the trial will be continued (probably more than once), taking it smack-dab into the full campaign season. Talk about election interference.
Image by Andrea Widburg.
What the judge should do is tell Trump’s lawyers to file immediately a dispositive motion to dismiss the case, and then she should instantly rule on it…in Trump’s favor. After that, the matter can be put on an accelerated track to the Supreme Court because (a) Trump’s unique status as president makes this an original issue about which no higher court has yet opined and (b) it is a matter of national importance.
Even if Trump is having a hard time retaining counsel (given that radical leftists are using McCarthy tactics to disbar conservative attorneys, destroying their livelihoods), and even if his attorneys are mediocre (I have no idea whether they are or not), it shouldn’t be difficult to craft a colorable motion to dismiss. The internet is overflowing with people pointing out the myriad abuses in the complaint.
Trump’s position as president meant he had plenary, or absolute, power over national security questions, including the classification scheme. Anything he removed from the White House to the slightly lessened security of Mar-a-Lago (the Secret Service is always there) was de facto declassified.
Even if Trump said he couldn’t share something because of its security status, that simply means that, as president, he had lowered the classification—something, again, within his absolute authority—something Trump intuitively understood, even if he didn’t understand the legal nuances. Unlike Hillary, Biden, and Pence, who lacked that authority and therefore committed felonious national security violations, Trump could not violate the law. It’s impossible.
The National Archives is a subset of the executive branch of government. The bureaucrat cannot make rules overriding a president’s plenary constitutional power to declassify material, nor can it sic partisan DOJ and FBI officials on a former president to demand those materials.
The Presidential Records Act cannot make rules overriding a president’s plenary constitutional power to declassify material. The Act is meant to prevent record destruction. The separation of powers means that, without a constitutional amendment, Congress has no control over a president’s classification decisions.
The Espionage Act also has nothing to do with a president’s or former president’s handling of once-classified documents. It was intended to capture spies or others providing information, especially military information, to the enemy during a hot war (i.e., WWI, when the act was passed). Much of the Act, as passed, was unconstitutional and ended up being repealed. Lately, it’s been used to target whistleblowers who offend the federal government. The one thing it has nothing to do with is a president who declassifies documents.
See? Easy arguments. All the charges against Trump are bogus out of the gate because of his unique constitutional status.
Once the judge dismisses the case, the Biden administration will inevitably appeal. When that happens, one or the other party must petition the Supreme Court, arguing that the questions are purely legal—that is, no evidence needs to be developed—and must be resolved instantly.
All the above could be done in three weeks. Then, the Supreme Court must get off its tuchis and act instantly. And that’s where the real risk comes in. You see, I don’t trust the Supreme Court.
Technically, it has a conservative majority but many of you have probably noticed that Roberts, Kavanaugh, Gorsuch, and Coney Barrett frequently side with the leftists on the court, leaving Thomas and Alito to write principled dissents explaining how the Constitution works—and reminding Americans that, if you have a “living constitution,” that simply means judges make it up as they go along. (I don’t know why those four justices have gone left, although a conspiratorial mind can think of lots of reasons, including blackmail and threats.)
A principled Supreme Court will dismiss the case; an activist Supreme Court will nail Trump to the wall—but at least we’ll know before the election season.