CounterPoint

Est. 1995

Freedom Over Fascism

Americans value our freedoms – including our freedom to elect leaders who govern in our name. Multiple grand juries of Americans have indicted the former MAGA President for his criminal conspiracy to defraud, deny, and overthrow the will of the people. Yet MAGA Republicans cheer him on and want to overturn our legal system to allow him to get away with it, while they take away our freedoms and rule for the wealthy few. We must come together to ensure all involved are held accountable, so we can protect our country and our freedoms.

At least four members of the most corrupt Supreme Court in American history have decided to help Trump delay his trial for trying to overthrow the government of the United States.

Just like in 2000, when five Republicans on the Court ignored Al Gore’s probable (later found to be definite) win in Florida to put Bush in the White House, today’s Court is doing as much as they can to help Trump win this November.

As we reckon with this infuriating news, we must keep loudly insisting that the federal trial take place – and do so urgently, before the election. We cannot feed the cynicism and storyline that Trump and his co-conspirators will never be held accountable, as that would lend credence to and cover for their demands for this outcome. As legal expert Norm Eisen said:

“Let’s be clear: there is still time to have a trial, and Department of Justice policy does not prohibit the scheduling of one during an election. The Supreme Court must decide as quickly as humanly possible after oral argument so that Trump can at last be judged by a jury of Americans.”

Also, we must strike from our vocabulary the phrase “SCOTUS decided” or “the Supreme Court ruled.” This provides cover to the corrupt individuals on that court – put there at the behest of billionaires to do their bidding. It is also an implicit condemnation of the three justices who take their roles and oaths seriously.

Make no mistake: these actions are a continuation of MAGA’s criminal conspiracy to take away our freedoms that we’ve been beating back for years. It is vital that we not merely respond to specific legislative atrocities and judicial assaults in isolation, but instead expose the throughline connecting these attacks from SCOTUS to the House of Representatives to state legislatures to the billionaires and corporations financing all of them.

With gratitude to our colleagues at Democracy Defense Project (DDP), here are talking points for how to convey not merely what’s happening but why it matters and what we must demand comes next:

  • Despite a total lack of legal precedent and universal rejection by lower courts, the MAGA Justices on the Supreme Court decided to hear Trump’s claims of absolute presidential immunity.
  • By agreeing to entertain the fiction that presidents are free to commit crimes, these justices are further delaying voters’ most basic right: to have a ruling on and justice for the criminal conspiracy to silence their voices.
  • No court has ever recognized presidential immunity from criminal prosecution. Former presidents have never been allowed to engage in criminal conspiracies unpunished.
  • The August 2023 indictment by a grand jury of everyday Americans lays out the clear criminal conspiracy: It alleges that Trump and MAGA Republicans tried to overturn the 2020 presidential election by every means available, including violence because they knew they had lost.
  • It shows how they organized false presidential elector slates, pressured state officials to disregard their Constitutional oaths, and attempted to enlist Vice President Mike Pence to alter the election results.
  • It demonstrates that they were responsible for the January 6 attack to take away our freedom to vote and seize power to rule for the wealthy few.
  • The MAGA Republicans who schemed and covered up for Trump are still in power and must be held accountable. Trump and MAGA Republicans continue to endanger our country and harm our lives and livelihoods by deliberately spreading lies, breaking laws, and encouraging violence.
  • The Supreme Court must conduct this hearing and rule quickly so that, at last, a jury of Americans can weigh the facts of the case and determine the consequences of Trump’s criminal conspiracy to overthrow the 2020 election.

The Freedom Over Fascism Toolkit has been updated with this guidance, under the Presidential Immunity Hearing section. We encourage you to share this resource widely.

In solidarity,

Anat and the Research Collaborative and ASO Communications teams

Download (PDF, 3.35MB)

The Racism Is the Point

By David Corn  February 24, 2024

It’s Black History Month. Could that be why right-wing racism seems to be on the rise?

I’m not sure how you measure it, but there seems to be a pronounced uptick in overt racism within conservative ranks of late. And it goes beyond the egregious conduct of former President Donald Trump. The onetime reality TV celebrity has a long record of racism that stretches from the discriminatory housing practices engaged in by his family business (1960s) to his racist attack on the wrongly convicted Central Park Five (1980s) to his championing of the racist birther theory (2010s). At a town hall in New Hampshire during the 2016 campaign, a man in the audience yelled, “We have a problem in this country; it’s called Muslims…When can we get rid of them?” Affirming this burst of bigotry, Trump replied, “We’re going to be looking at a lot of different things. You know, a lot of people are saying that, and a lot of people are saying that bad things are happening out there.” And when candidate Trump attacked Judge Gonzalo Curiel, who is Mexican American and who was overseeing the Trump University fraud case (remember that one?), even GOP House Speaker Paul Ryan felt compelled to call his remarks “racist.”

Yet Trump’s racism—like so much of his outrageous behavior—never became a decisive issue in the 2016 campaign, and it did not abate during his presidency. There was the Muslim ban. He referred to a group of protesters that included white nationalists and Nazis as “very fine people.” He called African nations “shithole countries.” In the 2020 race, he repeatedly claimed that Joe Biden was teaming up with Black radicals (and commies and Antifa and the media) to assault suburban communities (obviously white suburban communities). We don’t have time to go through a full rundown. Do you want a list of Trump’s racist episodes? Here’s one.

And it only seems to be getting worse. In recent months, Trump has hurled racist attacks at Black officials who are prosecuting cases against him. He has derided Nikki Haley in a racist manner. He has used racist and Hitler-like rhetoric to slam undocumented migrants.

Setting an example with this torrent of hatred, Trump has thrown the door open to denizens of MAGA-land who wish to express their inner racism. Meanwhile, leading strategists of the right, including Chris Rufo and failed wannabe president Ron DeSantis, have launched a war on “wokeness” and diversity, equity, and inclusion programs at schools and businesses, a crusade that jibes nicely with Trump’s explicit racism. It’s hard to believe there’s no connection between these strategic initiatives and Trump’s legitimizing of racism.

As bad as this recent history has been, it appears that voices on the right are going further. Look at Fox pundit Raymond Arroyo. Days ago on that network, he declared Black Americans will back Trump in the coming election because…they love sneakers. Yes, he said that. This was his insight following Trump’s recent announcement that he’s selling a limited line of Trump-inspired (and incredibly gaudy and ugly) sneakers at $399 a pair. Arroyo opined:

As you see Black support eroding from Joe Biden, this is connecting with Black America because they love sneakers. They love sneakers. This is a big deal. Certainly, in the inner city. So, when you have Trump roll out his sneaker line, they’re like, “Wait a minute. This is cool.” He’s reaching them on a level that defies and is above politics.

 

Selling a thousand pairs of ridiculous sneakers will win over Black voters? Tough to be more dismissive, cynical, or…racist than that. When the host asked if “people who are excited about the sneakers” would vote for Trump, Arroyo replied, “Anybody willing to put 400 bucks down for a pair of sneakers—yeah, I think that’s commitment and love.” Arroyo trotted out racial stereotypes, and his Fox interlocutor was fine with that.

On the MAGA right, there’s been a race to a racist bottom, with leading figures seemingly trying to outdo each other. At the front of this pack is Charlie Kirk, the Trump fanboy who heads Turning Point USA. He has declared that he would be nervous if he saw a Black pilot in the cockpit of a plane. As if this captain’s only qualification was checking a box for a DEI initiative. (To be clear, all pilots need to pass the same tests to be certified to fly.) He also noted, “If I’m dealing with someone in customer service who’s a moronic Black woman, I wonder: Is she there because of her excellence or is she there because of affirmative action?”

Floyd Brown, a veteran far-right activist (who was behind the infamously racist Willie Horton ad that ran during the 1988 campaign) and is now campaign manager for Kari Lake’s Senate campaign in Arizona, said something similar about a Black doctor. “Yet now because of DEI, when you see a Black surgeon, you get a question in your mind.” You do?

Kirk has always been an alt-right twerp, but it’s noteworthy that he now has delved into the realm of white supremacy. My colleague Ali Breland did a deep dive on his descent and observed:

Kirk appears to have shifted, embracing racist and white nationalist rhetoric and figures with little hesitation. In the past year, he’s hosted far-right and white supremacist figures on his podcast and has tweeted in support of whiteness, earning praise from white supremacists who have long campaigned to mainstream such rhetoric.

In October, he invited veteran white supremacist Steve Sailer, whose bona fides include writing for overt white nationalist publications including VDare and the Unz Review, on his podcast. During their interview, Kirk called Sailer his favorite “noticer”—a word frequently used in internet conservative spaces as a euphemism for individuals willing to publicly draw bigoted conclusions linking race and criminality. Sailer did exactly this during their conversation, insinuating that Black people commit crimes because of innate characteristics: “Blacks tend to commit murder about 10 times as often per capita as whites…it’s not just all explained by poverty.”

Breland also reported, “Others associated with Turning Point USA are also giving voice to white supremacist positions. In a tweet last week, right-wing internet figure Jack Posobiec, a TPUSA contributor with a history of ties to white nationalists, slammed Nikki Haley’s financial backers as ‘rootless cosmopolitans,’ an established antisemitic euphemism.” (Posobiec was one of the chief spreaders of the violence-inciting Pizzagate conspiracy theory.)

These folks might seem to be marginal figures, but as influencers on the right, they reflect what appears to be a greater willingness generally to openly voice racist sentiments. Axios reported that at a Turning Point USA conference in December, the “emphasis on Haley’s nonwhite heritage was hard to miss.”

Racism and white grievance are everywhere on Planet MAGA these days. A broadcast of Sean Hannity’s Fox show earlier this month featured a live segment in which members of the Guardian Angels, a supposedly anti-crime patrol group, assaulted a man in Times Square who they claimed was a “migrant.” As this was transpiring, their leader Curtis Sliwa exclaimed, “They’ve taken over.” Nope. Their victim was from the Bronx. Here was racist violence shown live on television. It was right out of Network.

By the way, the New York Post expressed outrage that a Google AI chatbot generated a picture of a Black founding father:

 

Okay, George Washington was not Black. But why go nuts over this and put it on the front page? While we’re at it, Jesus probably did not resemble a white European, as he has often been depicted. (He certainly didn’t look like this.)

Slavery had benefits. Kamala Harris is an idiot. White people are being replaced by people of color (a conspiracy theory promoted by Tucker Carlson and others on the right). Racist comments are zipping through the conservative cosmos at what appears to be a more furious clip than several years ago. There have long been statistics about hate crimes, and in 2023 they were up by 13 percent. But it’s more difficult to track and quantify the dissemination of racist utterances. I sense there’s an acceleration. (Do you?) And I shudder to think how much worse this could get, especially if the Grand Leader and catalyst of this racism revival returns to the White House.

Abdication of Duty

Nex Benedict died after an altercation in the girls’ bathroom in Oklahoma, where officials are the biggest bullies.

 

https://www.thedailybeast.com/nex-benedict-non-binary-teen-at-owasso-high-died-after-bathroom-altercation

Under a law signed two years ago by Oklahoma Gov. Kevin Stitt, students can only use public school bathrooms that correspond with the gender designation on their birth certificate.

That is why on Feb. 7, Nex Benedict, a non-binary, gender-fluid 16-year-old sophomore at Owasso High School, was in the girls’ bathroom with another student, who is trans.

The pair encountered three older girls, and a physical altercation ensued. In a statement on Tuesday, the school said the incident lasted just two minutes before other students and a staff member intervened. By then, Nex, who used they/them pronouns, had landed on the floor, suffering a blow to the head. Nobody summoned an ambulance.

The school suspended Nex for two weeks and called Nex’s grandmother, Sue Benedict, who told The Independent that she arrived to see Nex’s face was battered.

The grandmother, who had formally adopted Nex, took them to Bailey Medical Center, where they were examined and released. The police had not even been notified of the altercation when the grandmother called them.

As the grandmother told The Independent, Nex complained of a sore head and went to bed listening to music, the teen’s regular balm after being bullied. They got up the next morning but suddenly collapsed. An ambulance took them back to the hospital, where they died. The state Medical Examiner’s Office has yet to determine the cause of death officially.

“We understand that people are concerned about this incident and we can assure everyone that this incident is being taken seriously and is being investigated thoroughly,” the Owasso Police said in a statement on Tuesday. “Detectives have, are, and will be interviewing school staff and students over the next two weeks and in turn will be submitting our investigation to the Tulsa County District Attorney’s Office for prosecution review.”

A funeral was held on Feb 15. Local police and the Bikers Against Child Abuse provided an escort from the Mowery funeral home to Ridgelawn cemetery. Stitt was absent, as was Ryan Walters, the state superintendent of public schools.

Governor Kevin Stitt (R-OK).Leigh Vogel/Getty Images for Concordia Summit via Getty Images

Governor Kevin Stitt (R-OK).
Leigh Vogel/Getty Images for Concordia Summit via Getty Images

Last year, Walters released a “public service” video in which he described being trans as “an assault on the truth” and said, “We have injected radical gender theory and telling kids that they might be other genders. It’s dangerous. It puts our girls in jeopardy.”

Just last month, Walters appointed Chaya Raichik, the virulently anti-trans founder of Libs of TikTok, to a state library advisory board.

“Chaya Raichik and I have developed a strong working relationship to rid schools of liberal, woke values,” Walter said in a statement.

Raichik was already well known in the Owasso school system. In 2022, she accused an LGBTQ+ middle school teacher of being a “groomer.” The teacher, Tyler Wrynn, whom Nex and other trans kids deemed “safe,” resigned.

“Nex was very angry about it,” the grandmother told the Independent.

Last summer, Raichik zeroed in on a Tulsa school librarian, and several Tulsa schools received bomb threats over the next few days. Libs of TikTok targeting had similar results in various parts of the country. In November, Raichik replaced her profile photos with one of her proudly holding a copy of USA Today with the front-page headline “When Libs of TikTok posts, threats increasingly follow.”

Raichik, Walters, and Stitt have all said that they are seeking to protect children. They certainly did nothing to protect Nex. The grandmother says Nex had been bullied since the teen’s arrival at the high school in 2023.

The actual priority of these three bigots is to promote themselves by making parents fear their kids will fall victim to woke indoctrination and sex-crazed groomers. Stitt is a typical right-wing politician, and Raichik is just a craven influencer. But Walters is supposed to do more than seek every opportunity to further his political ambitions. He is directly responsible for the well-being of all the kids in the state’s public schools. He is supposed to protect them.

On the day Nex died, Walters said nothing at all about the loss of a bright and big-hearted student who was just what a superintendent should most want in the schools. Walters instead released a letter to U.S. Sen. Markwayne Mullin (R-OK) saying, “The growing crisis at the southern border puts our kids, our families, and all Oklahomans in danger.”

Detectives are now investigating whether a genuine danger in one of his high schools left a promising sophomore dead. Walters should in the meantime instruct Owasso High School to change its Principal’s Honor Roll so Nex Benedict is not listed as the teen’s deadname.

In a statement, Sue Benedict noted she had been so lost in grief that she had given the funeral home the deadname for the obituary:

“We are sorry for not using their name correctly and as parents, we were still learning the correct forms. Please do not judge us as Nex was judged, please do not bully us for our ignorance on the subject. Nex gave us that respect and we are sorry in our grief that we overlooked them. I lost my child, the headstone will have the correct name of their choice.”

Trump Court Cases Cheat Sheet

 

 

Trump Court Cases Cheat Sheet

I’ve organized the cases first by whether it is civil or criminal, and then further bifurcated them into those that have been filed in state court, and those in federal court. This is important because cases are going on in each category.

Civil Cases

The civil cases against Trump are either private lawsuits that have been filed against Trump in his personal capacity or enforcement actions brought by a state.

State

Carroll v. Trump I and II

What it’s about:

These are two related cases involving claims of defamation by E. Jean Carrol for Trump’s public statements that she was lying when she accused him of sexually assaulting her in 1995/1996. The reason there were two cases is one based on a defamatory statement made in 2019, when Trump was president, and the other on statements he made after he left office, in 2022. The first case was tied up in court because initially, the Justice Department argued that Trump was acting in his official capacity in making the 2019 statement, on the theory that he was responding to “matters of public concern.” This issue went up on appeal (in federal court) and then was sent back to the state trial court to resolve the issue. In the meantime, the second lawsuit went forward (since he was not immune from suit for the 2022 statement), going to trial in April of last year.

Last May, the trial jury in the second claim found Trump liable for sexual assault and that he defamed her, awarding Carroll $5 million. Trump tried to file a counterclaim that Carroll had defamed him because she said she had been “raped” (since the jury found that he was liable of sexual assault, not rape specifically), but that claim was dismissed.

Then, in July of 2023, the Justice Department dropped its assertion that Trump was acting in his official capacity, which allowed the first claim to proceed. That went to trial in January of this year, but only on the issue of damages: The judge, Lewis Kaplan, held that based on the jury’s verdict in the first trial, Trump’s 2019 statements about Carroll were, as a matter or law, defamatory (this is known in the law as collateral estoppel — you can’t litigate the same issue after it has already been decided, and his 2019 statements were substantially the same as those in 2022). So the second trial was only about damages. Carroll’s lawyer introduced evidence in that trial that Trump had continued to defame Carroll, even after he was found liable in the first trial. That jury awarded Carroll $83.3 million in emotional, repetitional, and punitive damages.

What’s happening:

Trump has appealed the first damages award, though he had to hand over $5.5 million to a federal court as collateral while the appeal proceeds. He has also appealed the judge’s dismissal of his counterclaim in the first trial. Trump has also said he will appeal the second damages award, though that would again require him to put up collateral to do so — which means he not only has to come up with that money but lose it automatically once the appeal is over if he loses.

What to keep an eye out for:

What we’re looking for here is whether the damages in both cases will be upheld on appeal. This is a state court issue so it is unlikely to go up to the Supreme Court, and given Trump’s self-professed net worth, it’s unlikely that even the second award would be deemed excessive. If the awards are upheld, we’ll see whether Trump can (and will) pay up.

New York v. Trump

What it’s about:

This lawsuit was filed by the New York attorney general, Letitia James, in September 2022, alleging that Trump, his three oldest children, several Trump Organization officers, and ten related companies had engaged in financial fraud. Specifically, James alleged that the defendants had grossly inflated the value of assets (by billions of dollars) in their Statements of Financial condition to banks and insurance companies — while at the same time deflating the value of those same assets to tax authorities. (The impetus for this lawsuit appears to stem from Michael Cohen’s congressional testimony in 2019, where he revealed that Trump engaged in this practice.)

The lawsuit alleges seven causes of action. The judge in this case, Arthur Engoron, determined, as a matter of law that Trump had committed fraud on the first cause of action, which was for “persistent and repeated fraud.” This cause of action did not require an intention to deceive or mislead (in other words, it only required a finding that he and the other defendants repeatedly misrepresented the books). The judge ordered the termination of Trump’s business license and canceled the certificates for several of his companies.

The other six counts do have an intent requirement, and these proceeded to a bench trial — meaning that the judge, not a jury, was the finder of fact — which began last October and ended in January. During this trial, Trump was held in contempt twice for violating a gag order preventing Trump from disparaging Engoron’s staff and fined a total of $15,000.

What’s happening:

Trump has appealed the judge’s order on the first cause of action (the termination of his business license and company certificates). On the remaining counts, James has asked the court to award New York $370 million and to prohibit Trump from conducting business in New York, also known as the “corporate death penalty.”

What to keep an eye out for:

Federal

There are two federal civil cases ongoing against Trump, both based on the events arising out of January 6.

Blassingame v. Trump

What it’s about:

This is a suit brought by three police officers — James Blassingame, Sydney Hemby, and Marcus Moore — who were on duty at the Capitol on January 6, 2021. In April 2021, Blassingame and Hemby filed suit in D.C. district court alleging that they suffered physical and emotional injuries resulting from Trump’s actions on January 6 in violation of D.C. law prohibiting inciting a riot and aiding and abetting assault and battery. (Moore joined the suit later.) The lawsuit also alleges that Trump violated the Ku Klux Klan Act of 1871, which prohibits obstructing officials from performing their duties through force, intimidation, or threats.

Trump moved to dismiss the complaint based on “absolute immunity” from civil suits for acts that took place in the outside perimeter of his official duties, based on a Nixon-era case called Nixon v. Fitzgerald. The district judge, Amit Mehta, denied Trump’s motion and the D.C. Circuit Court affirmed his ruling last December, holding that based on the facts as alleged, Trump’s actions were in his personal capacity as a candidate for office, not as President.

What’s happening:

The D.C. Circuit was reviewing a ruling on a motion to dismiss — which means that they looked at the facts alleged in the complaint in the light most favorable to the plaintiffs (the police officers). However, the court noted that during discovery, Trump may be able to produce evidence that refutes the claims made by the plaintiffs, and then raise the issue again in a motion for summary judgment (which is another opportunity to ask the court to dismiss the case before it goes to trial). So the court ordered that the case go back to district court and for discovery to proceed on this issue (not the merits of the lawsuit itself). However, this order was stayed until February 15 pending Trump’s appeal to the Supreme Court.

What to keep an eye out for:

Trump will almost certainly appeal this by Friday, which means that the Supreme Court will have two pending requests on the absolute immunity question: One civil, and one criminal (see below). Trump’s claims on the civil front are much stronger than in the criminal case, so there is a chance that if SCOTUS takes the case he will prevail, in which case the lawsuit would be dismissed. Otherwise, the discovery of the immunity issue would begin.

Lee v. Trump, Swalwell v. Trump

What it’s about:

The first is a lawsuit also alleging violations of the Ku Klux Klan Act, except that it was brought by eleven (now ten) members of Congress in February 2021. The lawsuit was initially filed by Rep. Bennie Thompson, but Barbara Lee replaced him as the lead plaintiff last December. This lawsuit, unlike the one above, also names Rudy Giuliani, the Proud Boys, and the Oath Keepers as defendants.

The other lawsuit was filed by Representative Eric Swalwell, naming Trump, Mo Brooks, and Rudy Giuliani as defendants. This case makes the same claims as above, except that it also includes a claim of negligence.

(NOTE: These were filed separately but I am reviewing them together since they are so similar.)

What’s happening:

These cases are also overseen by Judge Mehta and followed the same trajectory as Blassingame: Mehta denied Trump’s motion to dismiss on absolute immunity grounds and these cases were consolidated with Blassingame on appeal.

What to keep an eye out for:

Same as Blassingame.


Criminal Cases

If you’re already exhausted, I feel your pain. The following four cases are probably more familiar to you, though each of them has tricky legal issues involved.

State

New York v. Trump

What it’s about:

This case is a throwback to Season 1 of the Trump Show. The indictment charges Trump with 34 counts of falsifying business records in the first degree for attempting to conceal payments made to Stormy Daniels in exchange for her silence about her affair before the 2016 election. In New York, falsifying business records is ordinarily a misdemeanor — unless it is committed with the intent to defraud and commit and conceal another crime, in which case it becomes a felony. Bragg’s theory of the case is that by disguising the payments to Michael Cohen (who made the direct payment to Daniels) as “legal expenses,” Trump was attempting to defraud voters and undermine the presidential election.

What’s happening:

The Manhattan case was originally scheduled for March 25, and it looked for a little while that it might be displaced by Trump’s federal trial on January 6-related charges. However, if the Supreme Court grants a stay in that case or agrees to hear his appeal (see below), the coast is clear. The judge, Juan Merchan, is holding a hearing on Thursday to rule on outstanding motions (including a motion to dismiss, which will almost certainly be denied), and set the trial date.

What to keep an eye out for:

Let the games begin! This case will likely be the first one to go to trial…so get ready for your favorite Season 1 characters to make an appearance.

The State of Georgia v. Trump (plus 18 other defendants)

What it’s about:

Hooooo boy. This is a 41-count indictment that covers all aspects of the “fake elector” scheme in Georgia. (Trump is charged with 13 of the counts.) This was part of the coup attempt that involved getting states to submit fake slates of electors to be substituted for the real slates during the certification of electoral votes on January 6. The nineteen defendants are named in different criminal subplots, including forgery, soliciting officers to violate their oaths, false statements, impersonating a public officer, influencing witnesses, perjury, and computer hacking. The key to this indictment is that all of this activity is charged as a violation of the Georgia Racketeering and Influenced Corrupt Organizations (RICO) Act, which looks at all of this crime as one big criminal enterprise. What this means is that even if a defendant is involved in just one of the “subplots,” they can be held criminally liable for the whole thing. Neat, huh?

The sheer breadth of the charges and the number of defendants is what has made this case a bit unwieldy from the get-go. A couple of defendants, Kenneth Cheseboro and Sydney Powell, initially requested a speedy trial which severed them from the other defendants. They ended up pleading guilty along with Jenna Ellis and Scott Hall. Meanwhile, Mark Meadows and Jeffrey Clark each tried to move their cases to federal court, which was denied. Trump initially sought to have his case removed to federal court, then dropped it. Trump has since filed motions to dismiss based on various grounds, including statutory double jeopardy and the same “absolute immunity” claim he is making in federal court (see below). If you have a lot of time on your hands, you can check out ALL the filings in the case at this amazing Just Security clearinghouse.

What’s happening:

Guuuuuurrrrrrrl. OK, so right now the main issue in the case has nothing to do with any of the defendants — it has to do with the prosecutor, Fani Willis, and one of the Special Prosecutors she hired to handle the case, Nathan Wade. In a bombshell motion filed on January 8, one of the defendants, Michael Roman, moved to dismiss the indictment against him and disqualify Willis, Wade, and the entire D.A.’s office, alleging that Willis has a conflict of interest because she is in a romantic relationship with Wade and that she has personally benefited from the payments made to him in the form of vacations that the pair have taken together. Yeah. (Roman is an oppo researcher so….)

Trump and six other defendants have joined this motion, including Clark and Giuliani. Willis then filed a response, acknowledging that she had a personal relationship with Wade, but stating that 1) it began after the charges were filed; and 2) that she has not benefited financially from his employment as a special prosecutor. Roman then issued subpoenas to Willis, Wade, and others, claiming that he wanted them to testify to facts that would demonstrate that they did, indeed have a conflict and, more importantly, another explosive allegation that their representations to the court on the timing of their relationship are false. Willis and Wade moved to quash the subpoenas, stating that testimony was not necessary.

So. On Monday, February 13, the judge, Scott McAfee, held a hearing on whether to quash the subpoenas. That hearing will be continued on Thursday, and the judge will determine then whether Willis and Wade need to testify.

What to keep an eye out for:

The case law appears to be in favor of Willis and Wade since he was not hired on a “contingency fee,” which is payment based on the outcome of the case. Importantly, however, the judge has indicated that either an actual conflict of interest or an appearance of a conflict of interest, can be a basis for disqualification — and let’s be honest, this is not a good look for Willis. One big thing that may make or break this, though, is if Roman presents any evidence that refutes the representations that Willis and Wade have made to the court — for example, evidence that their relationship did begin before the case was brought, contrary to the prosecutors’ assertions in their affidavit. The problem here wouldn’t be so much the timing, but the lack of candor and deception to the court…which would probably be immediate grounds for disqualification (and possibly other proceedings against the offending party(ies)).

Here is why this matters: If Willis is disqualified for any reason, then under Georgia law, her WHOLE office is also disqualified.. That means that the case would have to be taken over by another D.A. in the State of Georgia, which could be….never. If Roman and the other defendants succeed in disqualifying Willis, this case will potentially never see a jury.

Federal

United States v. Trump (Southern District of Florida)

What it’s about:

This is the Mar-a-Lago case, resulting from Trump’s refusal to return hundreds of classified documents to the National Archives after he left office.

The important thing to know in this case is the timeline: After Trump left office, the National Archives realized that many presidential records were missing. After several months of fruitless back-and-forth negotiations to retrieve them, the Archives referred the matter to DOJ. The Justice Department issued a subpoena to Trump for the documents, and Trump returned some documents, certifying that they were all he had. The DOJ then learned that Trump still had classified documents in his possession, and obtained and executed a search warrant in which hundreds of additional documents, including some marked Top Secret, were recovered.

At this point, the case took a really weird turn and Trump filed a civil lawsuit in federal court, where he requested the appointment of a special master to go through the documents because he claimed he had executive privilege and that they belonged to him. Judge Aileen Cannon bizarrely entertained this request and continued to grant Trump special deference in her rulings, even though there wasn’t a legal justification for doing so. We spent about three months in this crazy rabbit hole until the 11th Circuit finally put the kibosh on her and dismissed this suit.

In June of last year, the Justice Department charged Trump and his valet, Walter Nauta, with 31 counts of willful retention of classified information, as well as 6 additional counts relating to obstruction of the investigation. A third defendant, Mar-a-Lago property manager Carlos de Oliveira, was added in a superseding indictment after that, adding three counts against Trump relating to obstruction, false statements, and altering or destroying documents. The case was assigned to — you guessed it! — Judge Cannon.

What’s happening:

The thing that makes this case very different from the other criminal cases is that it implicates the Classified Information Procedures Act (CIPA). CIPA is a procedural statute that governs how classified information is handled through discovery and at trial: It balances the due process rights of the defendant against the national security interests of the United States when it comes to disclosing sensitive information. Unlike in a normal trial, where the prosecution hands over everything they have to the defense, the government gets more leeway to withhold sensitive information or provide summaries or substitutions to protect national security secrets.

I did a podcast with an expert on the subject which goes into more detail, but the big takeaway is that CIPA involves lots of hearings, which gives Cannon a LOT of discretion in terms of scheduling. This means that she can kick the can down the road by drawing out all of the pretrial stages as long as possible, which is what it looks like she’s doing. In general, her decisions on this front aren’t something that is reviewable, so the special counsel’s team is sort of stuck with it.

What to keep an eye out for:

One saving grace of CIPA is that a judge’s orders on the various motions can be immediately appealed to the circuit court. Cannon just held a hearing last Monday where she heard the government’s requests for what it believes it needs to turn over to Trump for his defense. So we’ll be looking to see how she rules and whether Smith will appeal her ruling. But frankly, this case isn’t going anywhere anytime soon.

United States v. Trump (District of Columbia)

What it’s about:

Finally! The big kahuna. This case is about the events of January 6, the details of which I hope I don’t need to rehash here. Trump is charged with four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy against rights. The first three counts are predicated on the “legal scheme” concocted by Trump’s lawyers to stall the presidential electoral certification in Congress by getting Mike Pence to reject the actual slates submitted and substituting them with fake slates from seven states.

The fourth count, like the January 6 civil suits, is predicated on the Ku Klux Klan Acts which were passed in the wake of the Reconstruction Amendments after the Civil War. The criminal provision prohibits using force, intimidation, or threats to interfere with an individual’s civil rights — including the right to have their vote counted. The fourth count is the one that gets to the violence on January 6 and is closest to the actual crime of insurrection.

What’s happening:

Trump’s attempts to delay his case have been least successful in this case. Judge Tanya Chutkan has had a brisk schedule, and originally set a trial date of March 4. However, Trump raised his “absolute immunity” claim as a pretrial motion, looking to extend the claim he is making in the civil context (see above), which is based on some existing case law, into the criminal context.

Judge Chutkan dismissed Trump’s claim of absolute immunity, and Trump appealed, but Smith requested the Supreme Court to take it up directly (leapfrogging the circuit court). However, the circuit court then scheduled an oral argument and heard the case, issuing an opinion last week affirming Judge Chutkan’s ruling. However, the order for the case to go back to trial was stayed until this past Monday, which was the deadline for Trump to request a stay from the Supreme Court, which he did.

What to keep an eye out for:

We’re looking to see whether the Supreme Court grants a stay of the circuit court’s order, and/or wants to take on the issue itself. This is a big deal because depending on what the Court does (you can read the different permutations here), this case could go to trial earlier or later. Even if the stay request is denied altogether, the trial won’t be able to proceed with the originally scheduled date of March 4, because discovery has been paused while all of this litigation has been going on (at Trump’s request), so he will be given time to make up for that in preparation for trial. This is why the Manhattan D.A.’s case is going to be the first on deck.

Disinformation is one of the world’s biggest risks ahead of elections, reports say. But it doesn’t have to be.

Disinformation is one of the world’s biggest risks ahead of elections, reports say. But it doesn't have to be.

https://checkmyads.org/updates/disinformation-reports-wef-adtech-google/

As we hurtle toward one of the most consequential election years of our lifetimes, major groups are warning of a huge risk on the horizon: mis- and disinformation.

That’s according to both the World Economic Forum and the Eurasia Group, which published separate but eerily similar reports on the biggest risks the world faces as we head into 2024.

With disinformation fueling division, the Eurasia Group warned that the upcoming US election will be “testing American democracy to a degree the nation hasn’t experienced in 150 years and undermining US credibility on the global stage.”

But that disinformation isn’t coming out of nowhere. There’s a business model that fuels it — the global ad tech market, which is expected to be worth $2.9 trillion by 2031, according to Forbes.

Thanks to an almost total lack of transparency in this industry, disinformation is profitable. But that doesn’t have to be the case.

Here’s what’s at stake, according to some of the biggest thinkers out there.

What do these reports actually say?

The biggest challenge of 2024, the Eurasia Group wrote, is “the United States vs itself.”

The political risk consultancy warned in its report that “public trust in core institutions—such as Congress, the judiciary, and the media—is at historic lows; polarization and partisanship are at historic highs.

“Add algorithmically amplified disinformation to the mix, and Americans no longer believe in a common set of settled facts about the nation and the world.”

That’s a scary thought ahead of an incredibly important election — and the Eurasia Group isn’t alone in that concern.

The WEF’s Global Risks Report 2024 — which surveyed 1,500 experts around the world — painted a picture of a treacherous road ahead with “optimism” in “short supply.”

The biggest short-term risk the experts outlined was “the spread of mis- and disinformation around the globe.”

This “could result in civil unrest, but could also drive government-driven censorship, domestic propaganda and controls on the free flow of information,” the WEF website summarized.

It could have a serious impact on elections around the world in 2024, which are set to take place in several countries, including Bangladesh, Mexico, India, the United Kingdom, and the United States.

“The widespread use of misinformation and disinformation, and tools to disseminate it, may undermine the legitimacy of newly elected governments,” the WEF warned. “Resulting unrest could range from violent protests and hate crimes to civil confrontation and terrorism.”

What do ads have to do with this?

While the takeaways are terrifying, we can tackle disinformation targeting voters. Because disinformation is a business, and its revenue source is ads.

Programmatic advertising — the automation of buying and selling ads — has let companies introduce so many middlemen and layers to the ad-buying process that brands often have no idea what their ad spend is funding.

https://checkmyads.org/about/

When you consider that the global ad tech industry is worth hundreds of billions of dollars right now — and that as much as 3 percent of programmatic ad buys go toward an “unknown” — that’s a lot of money disappearing into the ether.

We’ve caught disinformation grifters sticking their hands into this cookie jar, swiping ad dollars from brands that want nothing to do with their websites.

Consider Breitbart, a site full of racism and disinformation that brands including BMW have publicly said they don’t want to advertise on. How was it still serving BMW retailer ads in December?

Because bad actors know how this incredibly technical process works and use its complexity to profit. One way they game the system is by pooling together their inventory and hiding their icky websites behind brand-safe fronts.

Google and other ad exchanges are accomplices in the disinformation-for-profit business. Google controls most of the automated ad-buying-and-selling processes. It requires next-to-no transparency from the websites it works with, and regularly fails to enforce its own policies. We even caught Google profiting from scammers selling fake Shark Tank diet pills.

We don’t know if Google’s failures are because it doesn’t care or because it has lost control of its near-monopoly on the advertising ecosystem. But it doesn’t matter because the effect is the same: It makes disinformation profitable.

And that disinformation is threatening elections around the world.

But by holding ad exchanges accountable and empowering advertisers by pushing for greater transparency, we can close off the paths that make disinformation profitable.

And just maybe save democracy in the process.

A True Tragedy of the Commons

https://hartmannreport.com/p/libertarians-object?utm_source=substack&utm_medium=email&utm_content=share

When the commons are sliced and diced by private enterprise, the result is almost always a true “tragedy of the commons” (to quote ecologist Garrett Hardin): exploitation, monopoly, and price gouging.

Whether in a nation’s schools, its utilities, its prisons, its public roads, or even its internet access, when these core parts of the commons are privatized and then ring-fenced by private enterprise, somebody is going to get rich, and the majority of the people will be poorer. Libertarians and their fellow travelers, however, deny that such natural monopolies even exist.

“There is no evidence at all that at the outset of public- utility regulation there existed any such phenomenon as a ‘natural monopoly,’” wrote Thomas J. DiLorenzo for the Review of Austrian Economics. He opened the article, in fact, with an even bolder statement by libertarian apologist Murray Rothbard: “The very term ‘public utility’ . . . is an absurd one.”

Libertarianism was invented in 1946 by a think tank organized to advance the interests of very big business, the Foundation for Economic Education. FEE’s project was to provide a pseudoscientific and pseudoeconomic rationale for business’s attacks on government regulation, particularly government “interfering” in “markets” by protecting organized labor’s right to form a union. They invented the libertarian movement out of whole cloth to accomplish this.

FEE was founded in 1946 by Donaldson Brown, a member of the boards of directors of General Motors and DuPont, along with his friend Leonard Read, a senior US Chamber of Commerce executive (and failed businessman).

How Big Business Conquered America

In 1950, the US House Select Committee on Lobbying Activities, sometimes called the Buchanan Committee after its chairman, Representative Frank Buchanan, D-Pa., found that FEE was funded by the nation’s three largest oil companies, US Steel, the Big Three automakers, the three largest retailers in the country, the nation’s largest chemical companies, and other industrial and banking giants like GE, Eli Lilly, and Merrill Lynch.

As reporter Mark Ames found when researching the Buchanan Committee’s activities, FEE’s board of directors included Robert Welch, who would go on to found the John Birch Society with help from Fred Koch, along with a well-known racist and anti-Semite, J. Reuben Clark, and Herb Cornuelle, who was also on the board of United Fruit (which was then running operations against working and indigenous people in Hawaii and Central America).

The Buchanan Committee also discovered that an obscure University of Chicago economist, Milton Friedman, was working as a paid shill for the real estate industry. He was hired through FEE to come up with and publicize “economic” reasons for ending rent price controls, commonly known as rent control. The public good didn’t matter, Friedman concluded; all that mattered was the ability of businessmen to work in a “free market”—free of any substantive obligation to anything other than their profits.

The Buchanan Committee knew what it had found. It reported the following:

“It is difficult to avoid the conclusion that the Foundation for Economic Education exerts, or at least expects to exert, a considerable influence on national legislative policy. . .

“It is equally difficult to imagine that the nation’s largest corporations would subsidize the entire venture if they did not anticipate that it would pay solid, long-range legislative dividends.”

As Ames notes and the committee uncovered

“‘Libertarianism’ was a project of the corporate lobby world, launched as a big business ‘ideology’ in 1946 by the US Chamber of Commerce and the National Association of Manufacturers.”

The man financing much of this, Herbert Nelson, head of the real estate lobby, didn’t think that democracy was even particularly useful, especially if it interfered with the ability of very wealthy people and big corporations to control both markets and the nation. As Nelson wrote, and the committee revealed, “I do not believe in democracy. I think it stinks. I don’t think anybody except direct taxpayers should be allowed to vote.”

In that, Nelson was simply echoing the perspective of many of the conservative movement’s most influential thinkers, from Ayn Rand to Phyllis Schlafly. Ask any objectivist (follower of Ayn Rand) or true libertarian, and they’ll tell you upfront: the markets, not voters in a democracy, should determine the fate and future of a nation.

As Stephen Moore, whom Donald Trump tried to nominate to the Federal Reserve, told me on my radio program during the Bush years, he considers capitalism more important than democracy. There’s only one power on earth that can successfully take on monopolists who want to dominate not only a nation’s markets but its politics as well: government. Only We the People can challenge the power of massive, aggregated wealth and the political power it carries.

That’s why libertarians and their libertarian-influenced Republican allies constantly rail against government. As Reagan said in his 1981 inaugural address: “Government is not the solution to our problem; government is the problem.” And if you own a major oil refinery that’s facing huge fines for polluting and causing cancers and don’t want to spend the money to clean it up, that’s true.

Using libertarian theory and theology, big business now has an army of true believers, ready to join the newest billionaire-funded Tea Party to complain about things like health and safety regulations by calling them “government health insurance” and “government interference.”

Meanwhile, it’s now fashionable for tech billionaires to call themselves libertarians.

Loose bolts open door to racism

NTSB Investigator-in-Charge John Lovell examines the fuselage plug area of Alaska Airlines Flight 1282 Boeing 737-9 MAX on January 7, 2024. (Photo by NTSB via Getty Images)

NTSB Investigator-in-Charge John Lovell examines the fuselage plug area of Alaska Airlines Flight 1282 Boeing 737-9 MAX on January 7, 2024. (Photo by NTSB via Getty Images)

 

On January 5th, a Boeing 737 Max 9 aircraft operated by Alaska Airlines was forced to make an emergency landing after a door panel flew off mid-air. No deaths were reported, but multiple passengers required medical attention, officials said. The cause of the incident is currently under investigation, but initial reports from the National Transportation Safety Board reveal that four bolts, meant to keep the door panel intact, “were missing or improperly installed.” United Airlines and Alaska Airlines — the only U.S. carriers that use Max 9 aircraft — have said that they’ve found “loose” bolts and hardware on some of their Max 9 planes. The Federal Aviation Administration (FAA) has grounded all Max 9 planes.

As the investigation unfolds, however, far-right pundits and news outlets are ignoring the facts and focusing on theories rooted in racism and sexism.

In a video uploaded to X, right-wing blogger Matt Walsh suggested that “diverse mechanics” employed at Spirit AeroSystems, the company that manufactures the Max 9 door panel, were to blame for the incident. Walsh claimed, without evidence, that incompetent “diverse mechanics” were hired instead of “experienced” mechanics. “DEI is destroying the airline industry, and lots of people will die because of it,” Walsh told his 2.6 million followers. In a different post, Walsh criticizes women engineers at Spirit AeroSystems, saying, “What they lack in skill and engineering capability they make [sic] for in sass!”

Others have also decided to blame the Boeing blowout on diversity policies and, more explicitly, people of color and women. Right-wing commentator Ian Miles Cheong said, “The 737 MAX was put together by a team of ‘diverse’ engineers. Boeing is hiring based on DEI. No surprise that they’re falling apart.” And Wall Street Silver, a popular far-right account, claimed that “DEI is going to result in a crash costing the lives of hundreds of people.”

Elon Musk amplified these claims on X. The tech billionaire promoted a post on “Boeing and DEI” from James Lindsay, a right-wing figure who has peddled “white genocide” conspiracy theories. Musk wrote to his 169.3 million followers, “Do you want to fly in an airplane where they prioritized DEI hiring over your safety? That is actually happening.”

These arguments quickly migrated onto Fox News. “Attention Boeing executives, DEI must die, not passengers on your plane,” Fox Business host Sean Duffy announced. “This is a dangerous business when you’re focused on DEI and maybe less focused on engineering and safety.”

But this narrative has no basis in fact. Both Boeing and its supplier, Spirit AeroSystems, are not particularly diverse. Boeing reports that in 2022, minorities made up 35% of the workforce. At Spirit AeroSystems, minority representation was at 26% in 2022. This number shrinks as you move up the corporate ladder: less than 17% of the managers at Spirit AeroSystems are minorities. At Boeing, the number of minority executives dropped in 2022 compared to 2021. Spirit and Boeing also employ three times more men than women.

The overwhelming majority of C-Suite executives at both companies are white men. Boeing’s CEO, CFO, Chief Compliance Officer, and Chief Aerospace Safety Officer are all white men. Spirit’s CEO, CFO, Chief Administration and Compliance Officer, and Senior VP of Quality are also all white men. None of these people are being held accountable by right-wing pundits for the Boeing incident. Instead, it’s the fault of unknown, non-white Boeing and Spirit employees.

The Max’s troubled history also predates DEI efforts at either of these companies. Following the Max crashes of 2018 and 2019 that killed a total of 346 people, numerous reports have highlighted the flawed design and rollout of the Max, which first flew in 2017. A 2020 House Committee on the Max crashes concluded that “Boeing failed in its design and development of the Max, and the FAA failed in its oversight of Boeing and its certification of the aircraft.” And yet despite all this, somehow diversity policies—which mostly emerged after the 2020 social justice protests—are the culprit.

This isn’t the first time far-right personalities and outlets have resorted to this line of attack. Last year, a Republican lawmaker blamed the Ohio train derailment on Norfolk Southern’s “focus on DEI.” Right-wing media figures also blamed the collapse of Silicon Valley Bank on its “woke” policies. Both claims were swiftly debunked by experts.

While the specific cause is still to be determined, the facts suggest the Boeing incident was related to poor quality control standards, not diversity efforts. Long before the door flew open, workers had alerted their bosses of safety problems — but their warnings went unheeded.

Workers say they faced retaliation for reporting safety concerns

A recent lawsuit alleges that Spirit AeroSystems, Boeing’s aircraft parts maker, concealed “widespread and sustained quality failures.” The lawsuit, which was filed by an investor in 2023, claims that Spirit was “encouraging workers to undercount defects” and “retaliating against those who raised safety concerns,” The Lever reports.

One former Spirit Quality Control Inspector, for example, was instructed by their manager to underreport and misrepresent the number of defects identified. The employee, who had been with Spirit for roughly 12 years, “struggled with Spirit’s culture, which placed an emphasis on pushing out product over quality.” According to the employee, there was an “excessive amount of defects.” But when he raised concerns about falsifying documentation, his supervisor threatened to “fire him on the spot.” The employee ended up being demoted and was only reinstated after submitting an ethics complaint and alerting Tom Gentile, the head of Spirit at the time. According to the lawsuit, following the worker’s departure, many of his former teammates were moved to “different positions, because they tried to find too many defects.”

Joshua Dean, a former engineer and auditor at the company, made similar claims, saying that “Spirit has a culture of not wanting to look for or to find problems.” According to Dean, the company “undercounted or manipulated the documentation of defects to create the appearance of quality improvement.” Dean had repeatedly alerted his managers of misdrilled holes on the 737 Max aft pressure bulkhead, describing it as the “worst finding” he had discovered during his time as auditor. Months later, Spirit fired Dean on what he claims were “demonstrably false grounds.” Instead, he believes the real reason he was fired was “to intimidate other Spirit employees so that they would not speak out as…[he] had done about the mis-drilled bulkhead holes defect.”

Under constant pressure to get products out the door as fast as possible, many employees say that they’re being pushed to work too many hours. A former Spirit employee observes that “Auditors were overworked and spread thin, which led to significant frustration.” Meanwhile, “Mechanics were repeatedly required to work mandatory weekend overtime, and 60-70 hour weeks, which angered many mechanics,” reads the lawsuit.

“We have planes all over the world that have issues that nobody has found because of the pressure Spirit has put on employees to get the job done so fast,” Cornell Beard, president of the Machinist union that represents Spirit’s employees, told the Wall Street Journal. This isn’t the first time union workers have voiced safety concerns. Previously, union workers have opposed self-inspections, a technique advocated by Spirit and Boeing. Workers said that having a separate inspector, as opposed to conducting the inspection themselves, is crucial for reducing the risk of accidents.

Boeing, Spirit AeroSystems pushed for weaker regulations

Since 2020, “Boeing and Spirit’s political action committees and employees have together reported spending more than $65 million on lobbying and federal campaign contributions,” according to a report published in Jacobin. Over the years, the two companies have successfully lobbied lawmakers to weaken safety regulations. Spirit AeroSystems, which makes 70% of the Max, saw its revenue decline 58 percent in 2020 after the aircraft was grounded.

In response, lawmakers bankrolled by the manufacturer pressed the government to recertify the Max as soon as possible. Senator Jerry Moran (R-KS), a top recipient of campaign contributions from Spirit, asked “the incoming CEO at Boeing and the FAA Administrator…to work together and do everything necessary to get the 737 Max safely back in the air.” Congressman Ron Estes (R-KS) also sent a letter to the FAA arguing that the “[t]he process of recertifying the 737 Max continues to have negative repercussions.”

A New York Times investigation found that Boeing was behind a 2018 law that made it “harder for regulators to review Boeing’s work.” Boeing representatives also sit on the FAA’s Aviation Rulemaking Advisory Committee (ARAC), an industry committee. In 2017, a year before the first Max crash, ARAC asked the FAA to “eliminate or scale back dozens of safety rules,” the Associated Press reported.

Boeing and Spirit AeroSystems did not respond to requests for comment.

CORRECTION: This article has been updated with the correct date of the Boeing incident; it occurred on January 5th, not January 9th.

It’s the damages, stupid

 

Artist’s rendition of the proceedings, courtesy of The Washington Post

 

Jay Kou

This is shaping up to be a winter of great discontent for former president Trump. Yesterday was a prime example, as jury selection and opening arguments got underway in the second E. Jean Carroll trial in eight months. (Note that this piece contains a discussion of sexual assault and rape, given the nature of the proven claims.)

In the earlier trial, a jury found Trump liable for sexual assault and for defaming E. Jean Carroll again in 2022. It awarded her $5 million. The current case is about Trump’s first defamation of Carroll, which took place while he was president and has been tied up while the courts and the Justice Department resolved whether the president could be sued for defamatory statements made while in office.

Besides the start of yet another trial, Trump got another unwelcome piece of news yesterday. The Second Circuit ruled that he did not have presidential immunity from a civil suit, meaning this case could move forward.

Here are three things to know and keep an eye on.

  1. This trial is only about how much Trump will have to pay Carroll in damages, but Trump has already made this far harder for himself.

  1. There is a no-nonsense judge who is running a very tight ship and will keep the jury laser-focused on why they are there.

  1. The jurors who were picked were screened in an unusual way and were in for an experience rarely seen outside of mobster criminal trials.

Let’s dive in.

It’s the damages, stupid

Trump really can’t help himself, and is his own worst enemy, when it comes to courtroom behavior and what is likely to increase the judgments and penalties assessed against him. He did it in Judge Engoron’s courtroom recently, when he insisted on speaking at closing arguments (and had to be shut down with an admonition to defense counsel to control his client). And he’s already done it in this second Carroll case in a federal court presided over by Judge Lewis A. Kaplan.

Specifically, Trump posted about Carroll some 30 times on Truth Social yesterday, mostly amplifying what trolls were falsely and maliciously saying about her. Trump himself posted on Tuesday that the case was “fabricated lies and political shenanigans.” He declared, “I am the only one injured by this attempted EXTORTION.”

If you’re thinking, “Hey, isn’t this even more defamation?” you’d be correct. The question of whether Trump sexually assaulted and defamed Carroll has already been settled by a jury. It is a legal fact. Each time he denies it, he opens himself up to more exposure. Simple concept, but impossible somehow for Trump to grasp.

Carroll’s attorney, Shawn G. Crowley, took full advantage of these real-time antics. In her opening remarks, she reminded the jury that Trump not only continued to falsely label Carroll a liar after last year’s trial but all this week has continued that drumbeat, including 22 social media posts on the very first day of trial, by her latest count.

”How much will it cost to make him stop?” Crowley very smartly asked the jury to consider. A $5 million award in the prior trial didn’t deter him. What would? “After all,” Crowley argued, “this is a man who’s a self-professed billionaire.” 

And as MSNBC’s Katie Phang pointed out, Trump is facing some big guns. Carroll’s team includes the same expert damages witness, Prof. Ashlee Humphreys, who testified in the first Carroll case, quite credibly and compellingly. It bears noting that Humphreys was also the expert witness in the defamation damages trial brought by Ruby Freeman and Shaye Moss against Rudy Giuliani, which resulted in a whopper of a verdict: $148 million.

Indeed, there are striking resemblances between Trump’s defamation damages case today and Giuliani’s. In both instances, a court first found that the question of liability had already been settled as a matter of law, so the trial was limited to how much they should pay in damages. In both instances, the defendant was unrepentant, even on the steps of the courthouse, continuing to deny the truth of the claim and digging themselves ever deeper into a hole.

Trump’s constant brags about his supposed wealth may also come back to bite him. As legal analyst Andrew Weissman noted,

Trump’s repeated claims of being a multi-billionaire will make any claim of poverty to the E. Jean Carroll jury weighing damages against him a very tough hill to climb, and make a large jury award against him that much more likely and well founded legally and factually.

How big of an award would be enough to get a billionaire to stop defaming a woman he sexually assaulted? That is a question the jury now must weigh.

The judge ain’t having it

It remains rather amazing and disturbing to me that a former president of the United States is a defendant where a federal judge needs to make the following statement to the jury:

For purposes of this trial it has been determined already that Mr. Trump did sexually assault Ms. Carroll, that he knew when he made the statements about Ms. Carroll that the statements were false, or he made them with reckless disregard as to whether they were true or false.

Indeed, Judge Kaplan made clear that Trump did rape Carroll, and Trump could not argue otherwise. New York law defines rape very narrowly as only including penile penetration. But non-consensual sexual penetration of any kind is generally considered rape.

So in an order delivered Saturday night, Judge Kaplan barred the defense from arguing that the first jury had not believed Carroll’s “rape” claim, ruling that its finding that Trump forcibly and without consent penetrated Carroll’s vagina rendered her rape claim “substantially true under common modern parlance,” even if it did not fit the definition of rape under New York law. It would be a waste of the jury’s time to focus on how Carroll was sexually assaulted when the only question before them is one of defamation damages.

And during arguments, Judge Kaplan has already put Trump’s lawyer, Alina Habba, in her place. As Joyce Vance noted in her newsletter, Civil Discourse, when Habba sought to revisit what could and could not come into evidence, including old tweets by Carroll of a sexual nature, Judge Kaplan quickly overruled her. 

“Ms. Habba, I have heard you. I have considered what you have to say. And I have ruled,” Judge Kaplan said at one point. “That’s it. In my courtroom, when a ruling is made, that’s the end, not the beginning, of the argument.”

This no-nonsense approach is critical in a trial where there is a sitting jury and where remarks by counsel could potentially prejudice them in their decision. 

A jury experience like few others

The danger that jurors are in just by serving on a Trump trial is now well understood. And Judge Kaplan is taking no chances. As a legal writer for the LA Times, Harry Litman, noted, that the judge had to instruct the jury, in a moment reminiscent of Reservoir Dogs, that they were there anonymously, and that they should even refer to one another by fictitious names. 

There’s good reason for that level of secrecy. It’s no coincidence, in my mind at least, that Trump came to the trial to attend the jury selection phase of it. At some point, according to the New York Times, Trump even let his gaze fall upon two jurors for several moments when they responded that they believed the 2020 election had been stolen. (Don’t worry, neither juror made it onto the panel.)

Jurors were asked if they voted, had attended Trump rallies, or contributed to presidential candidates. Importantly, they were asked if they belonged to fringe groups like QAnon, Antifa, the Proud Boys, and the Oath Keepers. Thankfully, no one answered yes, but it speaks to the times we are in that jurors need to be screened for political extremism.

This is a taste of what we are likely to see when jury selection gets going in D.C. and other cases such as the Georgia RICO action and the Manhattan trial for false business filings. Increasingly, Trump will be using his court appearances as a way to stay squarely in the headlines and insist that he is being unfairly treated by the legal system. 

But none of Trump’s behavior is likely to result in a favorable jury verdict for him. And as we’ve seen already, it may even worsen his liability. This second Carroll case is likely to wind up fairly quickly, perhaps within a couple of days given its limited scope. After that, the verdict will be widely anticipated, and it will be an important test of how far Trump can push things before juries and judges put a stop to him. 

Gish Gallop and Glittering Generalities

 

The concept of propaganda has a great deal of power to fascinate. So does the very word propaganda, which to most of us today sounds faintly exotic as if it referred mainly to phenomena from distant places and times. But in truth, can any one of us here in the twenty-first century go a day without being subjected to the thing itself? Watch the video above, in which The Paint Explainer lays out 51 different propaganda techniques in 11 minutes, and you’ll more than likely recognize many of the insidiously effective rhetorical tricks labeled therein from your recent everyday life.

You won’t be surprised to hear that these manifest most clearly in the media, both offline and on. The list begins with “agenda setting,” the “ability of the news to influence the importance placed on certain topics by public opinion, just by covering them frequently and prominently.”

Agenda setting means the “ability [of the news media] to influence the importance placed on the topics of the public agenda”.[16] If a news item is covered frequently and prominently, the audience will regard the issue as more important.

Scattered throughout the news, or your social-media feed, advertisements bring out the “beautiful people,” which “suggests that if people buy a product or follow a certain ideology, they, too will be happy or successful” – or, in its basest forms, operates through “classical conditioning,” in which “a natural stimulus is associated with a neutral stimulus enough times to create the same response by using just the neutral one.”

 

“The Conquest or Arrival of Hernán Cortés in Veracruz”, 1951, National Palace, Mexico City. Diego Rivera’s political murals depict a modern interpretation of the Black Legend.

In the even more shameless realm of politics, the common “plain folk” strategy “attempts to convince the audience that the propagandist’s positions reflect the common sense of the people.” When “an individual uses mass media to create an idealized and heroic public image, often through unquestioning flattery and praise,” a powerful “cult of personality” can arise. And in propaganda for everything from presidential candidates to fast-food chains, you’ll hear and read no end of “glittering generalities,” or “emotionally appealing words that are applied to a product idea, but present no concrete argument or analysis.” You can find many of these strategies explained in Wikipedia’s list of propaganda techniques, or this list from the University of Virginia of “propaganda techniques to recognize” — and not just when the “other side” uses them.

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