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Donald Trump’s bizarro legal strategy

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Oct 04, 2023 View in browser

By Ankush Khardori

Former President Donald Trump speaks to the media during the third day of his civil fraud trial in New York today. | Kena Betancur/AFP via Getty Images

COURT OF PUBLIC OPINION — Some free legal advice: If you’re in the process of losing a court case, it’s not a good idea to attack the presiding Judge and his staff. Especially if the judge is also the jury.

Today was the third day of Donald Trump’s civil fraud trial in New York, but it was the first full day that Trump labored under a limited gag order imposed Tuesday by Justice Arthur Engoron. The judge issued the order after the former president publicly attacked Engoron’s principal law clerk in a social media post that was also circulated by Trump’s campaign.

Trump appeared to dial down the running commentary today — and at least avoided publicly lashing out at the judge’s court staff again (though he did take a quick shot at Engeron during a lunch break) — but there is a long way to go between now and the end of the trial, which is slated to last through December.

Trump’s antics on Monday had already left many observers shaking their heads. He not only harshly criticized the New York attorney general’s office, which brought the case, but also said that the judge “should be disbarred” and that “some people” have said that he “could be charged criminally for what he’s doing.” For the record, no remotely credible observer has said anything like this, presumably because it is transparently absurd. “He’s interfering with an election,” Trump added, “and it’s a disgrace.”

As Legal Strategy, this is more or less the exact opposite of what any sane litigant should be doing.

The judge has already ruled against Trump on the core fraud claim brought by the state attorney general’s office — that he fraudulently inflated his net worth in financial statements provided to insurers and lenders for the Trump Organization — but there are significant claims remaining. The trial will also determine how much Trump will have to pay in monetary penalties.

As for why it is the judge and not the jury deciding the outcome at trial, that is because Trump’s lawyers opted not to request a jury.

Perhaps more ominously, the judge concluded in his ruling last week that Trump’s business certificates in the state should be canceled and said that he would appoint independent receivers to oversee the dissolution process. Even among experienced New York practitioners, there are very real questions about what the ruling means as a practical matter, how it will be carried out and whether it will be as serious as it sounds when all is said and done. The judge has said he will resolve the logistical questions concerning the process in the coming weeks, so here too, the judge holds Trump’s fate in his hands — at least unless an appeals court steps in to save him.

Under the circumstances, perhaps the best that can be said for Trump’s bizarro legal strategy — recklessly antagonizing a judge who wields extraordinary influence in the near term over the former president’s finances and business operations — is that it is not a legal strategy at all, but a political strategy.

Some commentators have posited that Trump attended the proceedings this week because his business is vitally important to him, but we also saw the outlines of a strategy that Trump may attempt to carry through next year as he faces multiple criminal trials that are currently scheduled to begin in March. Trump attended the trial this week voluntarily, but he will have to attend the criminal trials whether he wants to or not, and if those cases proceed as planned, they will suck up a considerable amount of time that Trump could otherwise spend on the campaign trial and also figure prominently in the media’s coverage of next year’s election.

The former president may hope that he can plow through all of these cases — potentially racking up loss after loss through next summer if he can’t delay as many of them as possible — but publicly discredit the proceedings with enough of his supporters to maintain his reelection bid. Which of course he could actually win.

It’s a strange kamikaze-like mission that is rooted in both legal and political necessity, given the seriousness of some of the criminal charges that the former president faces — as well as his very evident understanding that winning his reelection bid may be the closest thing he can acquire to a get-out-of-jail free card.

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What'd I Miss?

— McCarthy never asked Trump for a bailout as his speakership disappeared: With his speakership in the balance on Tuesday, Kevin McCarthy made a last-ditch effort to convince fellow Republicans there was virtue in him keeping the gavel. But he didn’t reach out to the most powerful member of his party. The now deposed Speaker never called former President Donald Trump to help him retain his post, according to four people familiar with the matter. That he didn’t, even as he was drowning politically, was a remarkable twist in their complicated yearslong relationship. McCarthy’s decision not to ask Trump for a hand was driven by the belief that he didn’t have the political capital to make the request, said one Republican familiar with the thinking.

— Reports: Menendez’s wife struck and killed a man while driving in 2018: Nadine Arslanian Menendez, the wife and co-defendant of recently indicted Sen. Robert Menendez, struck and killed a man while driving in New Jersey in 2018, according to media reports. The Record and The New York Times, citing police reports and police dash cam video, reported that Nadine Menendez, who was dating the senator at the time, was found by police in the small borough of Bogota to be “not at fault” in the crash in the because the victim, Richard Koop, was jaywalking. She was allowed to leave the scene. Nadine, whose Mercedes was severely damaged, was not taken into custody or tested for drugs and alcohol, according to The Record.

— Say goodbye to the Covid-19 vaccination card: It’s the end of an era for a once-critical pandemic document: The ubiquitous white Covid-19 vaccination cards are being phased out. Now that Covid-19 vaccines are not being distributed by the federal government, the U.S. Centers for Disease Control and Prevention has stopped printing new cards. The federal government shipped more than 980 million cards between late 2020, when the first vaccines came out, through May 10, according to the latest available data from the CDC.

Nightly Road to 2024

‘A GIFT TO DEMOCRATS’ — Republican presidential candidates are calling the ousting of former House Speaker Kevin McCarthy “predictable,” “performative” and “a gift to Democrats,” writes POLITICO.

In a historic move Tuesday, the House voted 216-210 to oust McCarthy, with a handful of conservatives joining Democrats to remove him. “What I saw yesterday was unfortunately incredibly predictable,” former New Jersey Gov. Chris Christie said on MSNBC’s Morning Joe Wednesday. “As with most things in politics ... it was not policy, it was personal. Matt Gaetz doesn’t like Kevin McCarthy and was intent upon executing this type of assassination, and that’s what he did. It was a political assassination yesterday of Kevin McCarthy.”

Florida Gov. Ron DeSantis told Scripps News on Tuesday before the vote to oust McCarthy that he opposed McCarthy “when it wasn’t cool, years ago,” while he was in Congress. DeSantis also said that the motion to vacate was “performative” and the “typical theatrics” that happen in Washington, D.C.

“He is really somebody that Donald Trump has backed and put in that position. I think they have not delivered results,” DeSantis said.

IOWA PUSH — Gov. Ron DeSantis’ campaign said today that it raised $15 million over the last quarter and will move a large number of staffers from Florida to Iowa as he intensifies his push in the first-in-the-nation caucus state, reports POLITICO.

“The significant fundraising haul not only provides us with the resources we need in the fight for Iowa and beyond, but it also shuts down the doubters who counted out Ron DeSantis for far too long,” campaign manager James Uthmeier said in a statement.

News of the cash infusion and staff transfers from Tallahassee to Des Moines — which were reported Wednesday by The New York Times and confirmed by a campaign spokesperson — come as DeSantis has fallen back in primary polling. The transfers amount to one-third of his total staff, the campaign said. The $15 million, which the campaign said was raised between his campaign committee, leadership PAC and joint fundraising committee, is less than the $20 million DeSantis brought in during the previous fundraising quarter.


A Helicopter crew member of the 18th Separate Army Aviation Brigade carries boxes of ammunition in Eastern Ukraine on February 9. | Ihor Tkachov/AFP via Getty Images

MOVING PIECES — The Pentagon has transferred more than 1 million rounds of ammunition seized from Iran to Ukraine, the U.S. military announced today, a move that comes as congressional infighting threatens to delay or derail aid to Kyiv, writes Lara Seligman.

The transfer, which took place Monday, is aimed at helping Kyiv’s forces push through Russia’s defensive lines before winter arrives. It comes as funding for Ukraine has fallen victim to political infighting in the House, where a group of hardline Republican members are opposing any additional aid to the conflict.

Lawmakers over the weekend passed a last-minute spending bill to avert a government shutdown through mid-November, but stripped the legislation of Ukraine funding.

The shipment of 1.1 million 7.62 mm rounds to the Ukrainian armed forces has been in the works for months, according to U.S. Central Command spokesperson Capt. Abigail Hammock. The Pentagon has $5.4 billion left in funding authority to send weapons to Ukraine, yet has only $1.6 billion left to replenish its own stocks, spokesperson Sabrina Singh said Tuesday. That money will soon run out if Congress does not act to authorize additional funding.


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Nightly Number

Around 75,000

The number of Kaiser Permanente health care workers going on strike today across five states over wages and staffing shortages, marking the latest major labor unrest in the United States. Kaiser Permanente is one of the country’s larger insurers and health care system operators, with 39 hospitals nationwide. The nonprofit company, based in Oakland, Calif., provides health coverage for nearly 13 million people.


THE WHOLE PICTURE — In February 2022, the journalist Sean Williams got an out of the blue WhatsApp message from a man who referred to himself as Maverick Miles Nehemiah, who’d swindled the U.S. government out of $20 million in the 1980s using counterfeit savings bonds and a team of white Americans (Nehemiah is Black; he called them the “All-American Team”) to avoid the suspicion of racist bank tellers. Nehemiah wanted press for his story and transformation. It turned out, he wasn’t telling close to the full truth about his life story. Williams traces Nehemiah’s attempt to con him and his real, fascinating story of a con-artist who hasn’t stopped conning for Rolling Stone.

Parting Image

On this date in 1933: A throng of over 10,000 unemployed join in a "hunger march" as they gather at the Los Angeles Plaza Historic District to listen to Communist speakers. | AP Photo

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Donald Trump’s bizarro legal strategy


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