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Rule For Me, Rule Against, But Above All Just RULE

In a new filing that bluntly confronts U.S. District Judge Aileen Cannon, Special Counsel Jack Smith takes a new tone of incredulousness and disdain for her mishandling of the Mar-a-Lago classified documents case.

The issue at hand is her failure to have yet ruled on Donald Trump’s motion to dismiss based on his inane, unprecedented, and counterfactual reading of the Presidential Records Act. Instead of rejecting the argument out of hand, Cannon not only is entertaining it but ordered the two sides to propose jury instructions based on two different deeply flawed interpretations of the PRA.

That set up an nearly impossible challenge for Smith: How do you draft jury instructions that are so wrong on the law without looking like an idiot, undermining your own case, and pissing of the judge?

The answer: You can’t.

So Smith went all in, no longer trying to placate, educate, or hand-hold Cannon.

Smith ripped her interpretations of the PRA: “both of the Court’s scenarios are fundamentally flawed and any jury instructions that reflect those scenarios would be error.” He said her “legal premise is wrong” and her requested jury instructions “would distort the trial.”

Smith all but threatened to take Cannon up on appeal, urging her to rule promptly and not wait until a jury has been seated and thereby deprive the government of the opportunity to appeal. At this point, Smith would prefer an adverse ruling to no ruling at all: “Whatever the Court decides, it must resolve these crucial threshold legal questions promptly. The failure to do so would improperly jeopardize the Government’s right to a fair trial.”

Smith came as close as you can to mocking Cannon’s request for proposed jury instructions under her two scenarios, prefacing the insane exercise with language like:

Any jury instructions premised on the erroneous legal suppositions set forth in Scenario (a) would necessarily be deeply flawed.

and:

Like Scenario (a), proposed Scenario (b) rests on [an] erroneous and unsupported legal proposition … But Scenario (b) also incorporates additional layers of erroneous legal propositions at the core of Trump’s legally flawed and factually unsupported PRA defense.

For devotees of the Mar-a-Lago case, Smith also walked Cannon through the origin story of Trump’s PRA defense, which close followers know involves Tom Fitton, the non-lawyer head of the right-wing Judicial Watch.

How A Subprime Auto King Saved Trump’s Butt

Meet Don Hankey:

• CNN: Billionaire whose firm backed Trump’s $175 million bond reveals how the deal came together
• Bloomberg: Donald Trump’s Lenders of Last Resort Is A Subprime Auto King and Online Bank
• WaPo: How a California billionaire known for auto loans provided Trump’s bond

There It Is

A 26-year-old New York man was charged late last month with sending death threats to state Attorney General Letitia James and Judge Arthur Engoron in connection with the civil fraud case against Donald Trump.

Trump’s Latest Recusal Nonsense

The trial judge in the New York hush-money-cum-election-interference case has already rejected Trump’s previous efforts to get him to recuse himself, so he’s unlikely to grant Trump’s latest request, just days before trial, that is built around Trump’s public attacks on the judge’s daughter.

Here We Go Again

A.B. Stoddard warns of Trump using a variation of the 2020 Big Lie playbook in 2024: “Trump can win on November 5, and polls show he likely would if the election were held today. But if Biden defeats him, the man who would trample the country for his ego can be expected to use even more extreme means than he did last time to flip the result—because he’s trying to stay out of jail.”

Nearly All Of Trump’s ‘Hostages’ Assaulted Law Enforcement

Just Security breaks down the charges against the Jan. 6 defendants still being held in the DC jail: A whooping 27 of the 29 inmates were charged or already convicted of assaulting law enforcement officers during the Capitol attack.

Breathtaking

Trump’s campaign speeches yesterday in the Midwest could easily be dismissed as more of the same, what you would expect, and not-much-new-to-see-here. They did strike familiar themes, but the level of villainy is truly reaching new levels.

Deeply racist and dehumanizing targeting of immigrants featured prominently in his Michigan speech, where he insisted on calling immigrants “animals.” Awful stuff.

But I was particularly struck by this hodgepodge of threats of authoritarian menace, due process violations, and illegal searches and seizures – all while surrounded by uniformed members of law enforcement:

Trump on deputizing local law enforcement officials to oversee mass deportations: "They know every bad kid … we're gonna work out a federal immunity for police" pic.twitter.com/bvxdkdNHXN

— Aaron Rupar (@atrupar) April 2, 2024

Note how Trump, under criminal indictment in four jurisdictions, not only surrounds himself with police but folds in his own quest for presidential immunity, offering to provide the same immunity to law enforcement. (He’s said this before, but I don’t think it’s been in this kind of setting.) It’s a remarkable dynamic, a case study in Orwellian language and authoritarian machinations.

I know it’s hard to see Trump’ clownishness as sophisticated. But this is multi-layered sophistication, whether conscious or not. He’s wrapping himself in the mantle of police, holding himself out as a law-and-order candidate, casting judges and prosecutors as criminals and himself as their victim, and thus positioning himself as aligned with police in the pursuit of criminals while benevolently promising (unconvincingly) that he will protect them with the same immunity he will win for himself.

So much to unpack in that speech (including another apparent Trump fabrication).

A New Tactic Against Disinformation

The NYT profiles attorney Michael J. Gottlieb, who is famously using defamation claims to combat disinformation in cases ranging from Georgia election workers Ruby Freeman and Shaye Moss to Pizzagate.

‘Hate Lost’

Voters in a recall election in Enid, Oklahoma overwhelmingly removed a member of the City Council over his ties to white nationalists groups.

2024 Ephemera

• WSJ poll: Trump leads Biden in six of seven swings states: Pennsylvania, Michigan, Arizona, Georgia, Nevada and North Carolina. Biden leads only in Wisconsin.
• Wisconsin voters approved two GOP-driven constitutional amendments limiting civic participation in elections: (i) a ban on private funding in support of elections; and (ii) new limits on who can perform election-related duties.
• A dormant bill in Nebraska to award the state’s electoral votes on a winner-take-all basis – and likely deprive Joe Biden of a single electoral vote – has new life after right-wing provocateur Charlie Kirk tweeted about it Tuesday afternoon and Donald Trump and the governor quickly lined up behind it.

Taiwan Quake Aftermath

A 7.4-magnitude temblor along the eastern coast of Taiwan killed at least nine people and left widespread damage and disruption.

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A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

A Judge Who Gets It

The trial judge in Trump’s hush money case has done everyone a service by properly identifying Trump’s public rhetorical attacks on his daughter as an effort to delegitimize the judicial system, attack the rule of law, and cow into submission anyone involved in holding Trump to account.

In a searing five-page ruling, New York state Judge Juan Merchan expanded the existing gag order against Trump to include family members of the judge and the prosecutor. In so doing, he conceded that the original gag order had not contemplated protecting family members, and therefore Trump had not violated it.

But it was less the expansion of the gag order than Merchan’s descriptive language that struck the right chord in this perilous time (emphases are his):

[T]his pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose. It merely injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members as well, are “fair game” for Defendant’s vitriol.

And:

The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the Rule of Law itself.

The peril of the current moment is that Trump’s rhetorical attacks are a precursor to and a necessary ingredient of the explosive concoction that produces political violence. Real violence. He knows. He likes it. He’s drawn to it.

While a gag order was a necessary step to protect the sanctity of the upcoming trial, it’s not going to be enough by itself to head off the political violence Trump has unleashed and keeps holding over the head of the Republic like a sword of Damocles.

Hope Hicks Expected To Testify For Prosecution

Former Trump 2016 campaign press secretary Hope Hicks is expected to be called as a prosecution witness in the hush money trial, NBC News reports.

Trump Beats Deadline With $175M Bond

I know many of you were chagrined that an appeals court let Trump off the hook by lowering the appeal bond requirement to a mere $175 million in his New York civil fraud case. But this remains a mixed bag of a result for Trump, too.

Yes, demanding he post the full $454 million would have added to his financial strain and perhaps (though not assuredly) forced him into bankruptcy.

But the $175 million bond he obtained yesterday ahead of his Thursday deadline remains a lot of money. Significantly for Trump, it is now there for the taking by state Attorney General Letitia James if Trump loses on appeal – rather than her having to fight through bankruptcy proceedings or initiate actions against various Trump properties.

As for the collateral Trump put up for the bond, an executive involved in the transaction told ABC News that it was all cash, but also said that he couldn’t remember if some investment-grade bonds ended up as part of the collateral, too. Suspicious about who would do this kind of business with Trump? Here’s some fodder for you:

Trump secured the bond through Knight Specialty Insurance Company, which is owned by the privately-held Hankey Group, whose chairman told ABC News that he considers himself a Donald Trump supporter.

“This is what we do at Knight Insurance, and we’re happy to be able to accommodate the ex-president in this situation,” Don Hankey told ABC News. “I’d say it’s more of a business decision, but I happen to be a supporter also.”

A related note: There are a huge number of issues to contest on appeal, and I suspect the final award will still be substantial but probably less than what was awarded by the trial judge. Either way, James is in a good position once appeals are exhausted many months from now.

Donald Trump Is A Living Breathing Meme Stock

Bloomberg’s Matt Levine: “A lot of people want to associate themselves with Donald Trump, and also for some reason want to make him richer, and Trump Media’s stock is a quite straightforward way to do that. Why does it have to have any relation to the underlying business?”

Double Whammy

A divided 4-3 Florida Supreme Court cleared the way for a proposed constitutional amendment protecting abortion rights to be on the November ballot.

Getting the amendment on the ballot, where it will require a 60% majority to pass, is a huge victory for abortion-rights proponents. It also fundamentally changes the politics on the ground this cycle, though it’s decidedly unclear whether it will be enough to move the dial for Democratic candidates in increasingly red Florida.

In the meantime, access to abortion in the state will be seriously curtailed, as the high court also allowed the state’s new 15-week abortion ban to go into effect, which will trigger a six-week ban in 30 days.

The End Is Nigh

The great Sarah Posner on the apocalyptic dog whistle Donald Trump is using to woo evangelical Christians:

However macabre this sounds to outsiders, to evangelicals steeped in end-times prophecy, these nightmarish scenarios are real. They believe they are waging spiritual warfare against demonic spirits bent on destroying an America God intended to be a Christian nation. For them, Trump’s accomplishments are more than just a checklist of judges and abortion policy; his entire being is a divinely ordained force powerful enough to upend Satan’s plans.

Texas Federal Judges Defy New Anti-Judge-Shopping Rule

Federal judges in the Northern District of Texas are vowing to defy new guidance from the Judicial Conference that is intended to blunt the blatant judge-shopping the right-wing legal movement engages in to land friendly judges in one- or two-judge districts. The Northern District of Texas includes the notorious Trump-appointed U.S. District Judge Matthew Kacsmaryk, the lone federal jurist in Amarillo, who has been a magnet for right-wing legal cases.

Peter Navarro Extends His Streak Of Legal Losses

Jailed Trump White House official Peter Navarro failed again in his quixotic quest not to comply with the Presidential Records Act by turning over to the National Archives his work-related Proton emails from his time in the administration. This time a federal appeals court rejected his absurd interpretation of the Watergate-era statute.

This Guy …

The 2024 wannabe spoiler Robert F. Kennedy Jr. declared on CNN last night that Joe Biden is a greater threat to democracy than Donald Trump.

Hunter Biden Loses Bid To Dismiss Criminal Tax Case

A federal judge in California rejected several of Hunter Biden’s long-shot bids to get his criminal tax case dismissed.

Last Survivor Of USS Arizona Attack Dies

Lou Conter, a 20-year-old quartermaster, was standing on the main deck of the USS Arizona when the Japanese attack on Pearl Harbor began. He died yesterday at the age of 102, the last survivor of the crew of the battleship whose sinking during the attack claimed the lives of 1,177 of his fellow servicemen.

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