What's next?

Smoke signals from grand juries and drums from Bedminster

If you thought there was something disappointingly truncated about the indictment and arraignment last week of Donald Trump on 37 counts of violating some very serious federal laws, you’re not alone.  I mean, a lifetime of lawbreaking – much of it right out in the open! – and this is what they came up with?  Even the arraignment itself was strangely devoid of even a note of legal harshness.  When asked by the presiding magistrate if the government was requesting any restraints on the defendant such as suspension of his passport, the prosecutor stood up and said no.  He said no to imposing travel restrictions out of the state of Florida, which legal experts said would be normal in such a circumstance with a defendant facing decades of prison time should he be convicted.  Were there to be any restrictions on Trump regarding posting about the case on social media, as there were when Trump was indicted on state charges in New York City?  No. 

In fact, the only restriction requested by the government was that Trump and his so-called valet and co-conspirator and now co-defendant be forbidden to discuss the case between themselves, which former prosecutors quickly pointed out was utterly unenforceable.  As if to make that point in advance of his arraignment, Trump had his co-defendant Walt Nauta, who had served him meals in the White House, as his guest at his table for dinner the night before the arraignment at his Doral golf resort, seated alongside his lawyers, Nauta’s lawyer, and Trump’s consigliere, Tom Fitton, head of the right-wing lawsuit factory, Judicial Watch.

What’s going on here, you might ask?  Well, the best I can figure is,  several things.  One, the prosecutors from Special Counsel Jack Smith’s office – he was present in the gallery for the arraignment but did not take a place at the prosecutors’ table – clearly do not want to be seen as restricting Trump’s ability to be a candidate for the presidency and to compaign, including travel to rallies, and they seem to not want to be accused of restricting Trump’s free speech rights, even to the point of allowing him free reign to criticize the prosecutors, the charges, the Department of Justice, or any other person or persons he sees as responsible for his predicament, right up to and including President Joe Biden, his putative opponent in next year’s electoral battle for the presidency.  This is entirely understandable, and the prosecution’s reticence was born out as Trump went from the arraignment directly to his golf club in Bedminster, New Jersey, where he proceeded to accuse everyone I just listed of various crimes, including, predictably, “election interference,” which Trump can well be expected to recognize, being himself perhaps the greatest practitioner of such illegal activities in the history of American elections.

But there’s something else that made not only the arraignment last week but the indictment itself seem mildly anticlimactic to me.  One or two of the former federal prosecutors who appear regularly on MSNBC, Andrew Weissman among them, pointed out that the indictment, very detailed at 49 pages in length, does not include all the evidence the Special Prosecutor has assembled in support of the charges he has leveled at Trump.  There is no requirement that a prosecutor “lay all his cards on the table,” as Weissman called it, at the time of indictment. 

The prosecution doubtlessly has more evidence of criminal wrongdoing which the defense will be entitled to see in due time during discovery, which began this week with an order by Judge Aileen Cannon to the Trump legal team to go through the process of getting security clearances so they can be allowed to see the classified evidence when the prosecution lays it out.  She gave the Trump legal team and any “forthcoming” attorneys (perhaps a nod to Trump’s habit of firing and hiring lawyers) until June 20 to file a “notice of compliance” that they have followed her order.  That’s three days from now.  If we had any doubts about how fast Cannon would move the case along, well, at least her recent order gives us a hint.

So, there could be more evidence, and there is more.  The protective order issued by the magistrate in Florida at the time of arraignment contains some interesting hints of what may be to come for the former president and current defendant.  The protective order, which was uncontested by either Trump’s or Nauta’s attorneys, is intended to protect evidence and other materials that will be shared by the prosecution in discovery, and in the words of the order itself, “materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals.”

Well, well, well.  Special Prosecutor Smith has just strongly indicated that his investigations regarding Trump’s theft and mishandling of top-secret documents may not be yet complete.  In addition, the protective order includes, and here I am indebted to the masterful and eagle-eyed Marcy Wheeler of the “Emptywheel” blog who pulled these gems out of the protective order:

•  personal identifiable information covered by Rule 49.1 of the Federal Rules of Criminal Procedure

• information that reveals sensitive but unclassified investigative techniques

• non-public information relating to potential witnesses and other third parties (including grand jury transcripts and exhibits and recordings of witness interviews)

• financial information of third parties

• third-party location information

• personal information contained on electronic devices and accounts

This calls for adding another “well” to the above exclamation, because these items indicate that some of the information that the Special Counsel wants to protect involves “location” and “financial information” of “third parties.”  Now, these may be cooperating witnesses not mentioned in the indictment, or they may be people not yet charged by the office of the Special Counsel, but they certainly include “electronic devices and accounts” not yet revealed by the indictment. 

The Special Counsel may be seeking merely to protect the identities and personal addresses of potential witnesses from retaliation by right-wing supporters of Donald Trump.  Several prosecutors pursuing cases against Trump in New York and Georgia have received repeated death threats, and Trump has made disparaging remarks about Special Counsel Smith’s wife recently.

But it could also indicate that the Special Counsel has plans to take some of this protected evidence back to the grand jury in Florida, or to another grand jury we don’t yet know about such as one that might be seated in New Jersey to look into the Bedminster end of the evidence presented in the indictment.  You will recall that the indictment mentions dialogue taken from a recording made at Bedminster when Trump bragged about having a document detailing a top-secret plan to attack Iran, and yet there did not appear to be a specific charge in the indictment linked to that evidence, which was apparently cited to illustrate Trump’s casual treatment of the highly sensitive documents he had taken from the White House.

And then there is the matter of the continuing investigation by the Special Counsel of Trump’s involvement in attempts to overturn the results of the 2020 election.  Two prominent Republican Party officials who served as so-called fake electors in Nevada appeared before the Washington D.C. grand jury investigating January 6 and the events leading up to it.  The grand jury has also subpoenaed Trump toady Steve Bannon, who was photographed in the so-called war room at the Willard Hotel in the days immediately preceding the attack on the Capitol.  As well, Trump’s former chief of staff Mark Meadows has given testimony to the grand jury, along with former Vice President Mike Pence.  It is known that one of the crimes the grand jury is pursuing involves Trump’s firing of Christopher Krebs, the head of election security for the Department of Homeland Security after Krebs had said that the election had been carried out securely and that there had been no election anomalies that would have effected the outcome of the election.

The pursuit by the grand jury of those associated with the fake elector scheme is particularly interesting, because the grand jury has already heard testimony from people who were in the Oval Office when the scheme was pitched to Trump by attorney John Eastman and pushed by then-attorney Rudy Giuliani in the weeks following Trump’s loss of the election in November.  The grand jury appears to be collecting evidence of Trump’s direct association with the scheme.  One of the Nevada Republican officials who gave grand jury testimony was a visitor to Mar a Lago recently and is said to be close to Trump.

Suffice to say that there must be a fire blazing in Washington D.C. somewhere, because enough smoke has been seen surrounding the grand juries taking testimony about Trump crimes that something is going on about which we have as yet seen only hints and smoke puffs.

Stay tuned.