Trump’s Been Indicted. What Now?
We're in uncharted waters.
As Steven noted last evening, former President Donald Trump has been indicted by the Justice Department, making history yet again. This morning, while the indictment remains under seal, we have a better idea of what the charges are.
WaPo (“Trump indicted in Mar-a-Lago classified documents investigation“):
Former president Donald Trump said Thursday night that he’s been charged by the Justice Department in connection with the discovery that hundreds of classified documents were taken to his Mar-a-Lago home after he left the White House — a seismic event in the nation’s political and legal history.
A seven-count indictment has been filed in federal court naming the former president as a criminal defendant, according to people familiar with the matter who spoke on the condition of anonymity to describe a case that has yet to be unsealed. The charges include willful retention of national defense secrets, obstruction of justice and conspiracy, which carry the potential of years in prison if Trump is found guilty.
[…]
The willful retention charge is a violation of a section of the broad Espionage Act, though spying is not among the charges against the former president. It is the second time he has been criminally charged since March, when he was indicted in state court in New York on 34 counts of falsifying business records related to hush money payments from 2016. Trump, who has denied wrongdoing in both cases, is the only former president ever charged with a crime.
[…]
Trump lawyer Jim Trusty took to CNN on Thursday night to defend his client as innocent, while also confirming the charges against the former president. In addition to willful retention, obstruction and conspiracy, he said Trump was charged with false statements. Trusty said he was not sure when Trump’s legal team would receive the indictment, andwas not aware of whether any other individuals connected with the case had also been charged.
The charges cap a high-stakes investigation that began in early 2022 and slowly built steam over the summer, until FBI agents conducted a court-ordered search of Trump’s home and private club in early August that turned up more than 100 classified documents. Trump’s advisers had told the Justice Department in June that they had conducted a diligent search for such papers in response to a subpoena and had handed over all they could find.
In the months since that search, investigators have been gathering evidence to determine whether the former president set out to obstruct law-enforcement efforts to recover the top-secret material that was stashed at Mar-a-Lago.
While a president has never been charged with such crimes, prosecutions related to the mishandling of classified materials are not rare, said Steven Aftergood, a classified information expert. “This reflects the Justice Department applying the law to a former president, and that is really encouraging,” Aftergood said. “It really underscores the fact that no one is above the law.”
While the charges will likely test Trump’s staying power as the leader of an increasingly crowded Republican field, the case will also put new strains on the Justice Department and FBI, which must bring to trial a tycoon-turned-politician who has publicly demonized federal law enforcement for years. In preempting any official announcement of the charges, Trump sought to gain the upper hand and blame the Biden administration.
While I fully agree with Aftergood and Steven that the rule of law demands Trump be held accountable for action that are truly criminal, I’ve long been skeptical that this particular case was going to be the one where it happened. Aside from the political calculus of the Justice Department indicting the sitting President’s main political opponent, the law here is very murky. While I personally believe Trump wantonly violated national security law in not only taking troves of classified materials home with him but then refusing to turn them over when asked nicely to do so, his status as the ultimate classification authority makes proving it challenging, indeed.
NYT columnist Charlie Savage (“Trump has claimed he can declassify documents. Here’s what he can and can’t do.“):
Former President Donald J. Trump’s repeated claim that he had declassified all the documents that the F.B.I. seized in the search of his Florida home last summer — including those marked as top secret — has heightened interest in the scope of a president’s power to declassify information.
In an interview on Fox News last year, Mr. Trump insisted that he “declassified everything.” There does not have to be a formal process to do so, he added, because “if you’re the president of the United States, you can declassify just by saying ‘it’s declassified’ — even by thinking about it.”
It is also worth noting that none of the three criminal laws cited in the warrant used to execute the search of his Florida home and estate depend on whether documents technically contain classified information. Mr. Trump’s lawyers have not repeated his claim in court, where there are professional consequences for lying. They have also resisted a judge’s proposal that they submit a sworn declaration or affidavit about any declassification action.
[…]
In the normal course of business, certain officials who have been designated as “original classification authorities” in federal departments and agencies can classify or declassify information. They are considered to be exercising the president’s power over such matters, which has been delegated to them.
There are formal procedures for doing so. A 2009 executive order directs the head of the department or agency that originally deemed information classified to oversee declassification reviews, and it sets some standards for them.
Presidents can declassify information directly, because it is ultimately their constitutional authority, but do so only rarely. Normally, presidents who want something declassified direct subordinates overseeing the department or agency with primary responsibility for the information to review the matter with an eye to making more of it public.
Even if it is true that Mr. Trump had pronounced the documents declassified while he was in office, he clearly did not follow the regular procedures. But there is no Supreme Court precedent that definitively answers whether that would make any difference.
Notably, a federal appeals court said in 2020 that “declassification, even by the president, must follow established procedures.” But the context was different: That line was part of an opinion rejecting a Freedom of Information Act lawsuit involving whether Mr. Trump had declassified a covert program by discussing its existence in a tweet.
Now, contrary to many commenters here, I actually think the Roberts court has little interest in protecting Trump here. But—precisely because it’s almost impossible to imagine any previous President doing something like this*—there’s essentially zero precedent to go on.
The 2020 case cited by Savage doesn’t shed much light on this one. There, NYT reporters filed a FOIA request with CIA about details of a classified program and the 2nd Circuit ruled, quite correctly, that POTUS carelessly referencing it didn’t automatically declassify it. But (in a universe where the Justice Department were truly independent) had DOJ tried to file charges against Trump for disclosing highly classified information to millions of people via his Tweet, it would likely have been dismissed on summary judgment. As President, he can disclose pretty much whatever he wants to.**
Beyond the legalities, the practicalities at work here are daunting.
POLITICO (“Trump indictment cheat sheet: What to know about the classified documents case“) rehashes the charges and how we got here before getting down to:
How long will it take for Trump to go on trial?
A state judge in New York set Trump’s trial in his Manhattan criminal case for March 25, 2024 — nearly a year from the date on which he was charged. A federal case might operate on a similar timeline. The lengthy pretrial process allows time for Trump’s lawyers and prosecutors to exchange evidence, file motions and even discuss the unlikely prospect of a plea deal.
It’s always hard to predict how long pretrial matters will take, even in run-of-the-mill criminal trials. Dozens of cases stemming from the Jan. 6 attack on Congress have reached the trial stage in recent months, some of them more than a year after charges were filed.
Trump, historically, has sought to drag out litigation, and he’d have many tools in his arsenal to do so here — from seeking to change venue to fighting to dismiss the case altogether.
How will the judge be selected?
Federal district courts all have slightly different procedures for judge assignments, but they all ostensibly feature a degree of randomness to prevent judge shopping.
At the U.S. District Court for the District of Columbia, cases are assigned by chance to one of about 20 full-time judges, as well as a handful of judges who are on “senior status” and handle a lighter case load. The court’s bench primarily consists of Democratic appointees, but four of the judges were picked by Trump himself: Trevor McFadden, Tim Kelly, Carl Nichols and Dabney Friedrich. None of the four have been particularly deferential to Trump in cases that have come before them in recent years, though it would create a notable dynamic if any criminal case landed before one of his own appointees.
In Florida, the situation is more complex because the Southern District of Florida — the venue where Trump says he has been ordered to report to — is split into five geographic divisions, and the division where a case is filed affects the eligible judges. Trump would stand a strong chance of drawing one of his own appointees, but it’d be far from a sure thing.
Again, the mere fact that a judge was appointed by Trump is no guarantee that they’ll rule in his favor. We’ve seen plenty of examples the other way. But, again, this is all new ground. We’ve never had a President facing federal criminal charges so, quite naturally, never had the prospect of one of his own appointees hearing the case. (And, no, I don’t think recusal would be required.)
Further, it will be bizarre to have a trial, quite probably of the Republican Party’s 2024 nominee for President, five months before the election. And we can be quite certain Trump will do his best to paint it as a political prosecution by his opponent.
Alan Feuer and Maggie Haberman, NYT (“Trump Turns to a Familiar Playbook in Effort to Undermine Documents Inquiry“):
As prosecutors entered what seemed to be the final stages of their investigation into former President Donald J. Trump’s handling of classified documents, Mr. Trump launched a pre-emptive strike against a possible indictment, posting a pair of messages on his social media platform early Thursday morning that sought to delegitimize the inquiry.
Mr. Trump accused a top federal prosecutor in the documents investigation of seeking to “bribe & intimidate” a lawyer representing one of the witnesses in the case. He claimed that the prosecutor had offered the lawyer an “important ‘judgeship’ in the Biden administration” if his client “‘flips’ on President Trump.”
The attacks by Mr. Trump on Truth Social were drawn from a playbook that he has used time and again to undermine inquiries into his conduct. His efforts to tar both investigations and investigators started well before he was president and continued throughout his term in office, perhaps most prominently during the inquiry into his campaign’s possible collusion with Russian officials in 2016.
Further, argues The Messenger‘s Marc Caputo, the venue doesn’t help matters.
[F]ormer federal prosecutors and seasoned defense attorneys have this blunt advice: consider trying Trump elsewhere. South Florida, they say, is a hard place to get federal convictions against political figures and celebrities.
And Trump is both.
“I would absolutely try this case in Washington D.C.,” said Richard Gregorie, a former federal prosecutor in Miami who noted that Trump has far more support in South Florida than in the nation’s liberal capital city.
“People who operate in D.C. have no idea what it’s like down here. Prosecuting politicians is hard here,” he added. “The people are just suspicious of government all over South Florida.”
Gregorie had one of the most storied careers in the Southern District of Florida as a prosecutor, winning convictions against suspected terrorists, Panamanian President Manuel Noriega and major Colombian cocaine traffickers with the Medellin Cartel. But in thinking about Trump’s case, he can’t help but recall how he couldn’t secure convictions against two separate former Miami-area mayors in the city of Hialeah, Julio Robaina and Raul Martinez, in unrelated public corruption cases in 2014 and the 1990s, respectively.
More recently, in 2019, other federal prosecutors lost a public corruption case against a former Miami Lakes mayor. And long before that, in the 1980s, federal prosecutors lost a bribery case against a politically active federal judge, Alcee Hastings, who beat the rap, was removed from office by the U.S. Senate and then won a congressional seat in 1992. He held office until his death in 2021.
Those big defeats happened in Miami-Dade County, at the south end of the peninsula and the Southern District of Florida. The district’s federal prosecutors, however, have had great success convicting politicians to the north of Miami, in Palm Beach County, home of Donald Trump’s Mar-a-Lago club. It became ground zero for the federal records investigation in 2022 when the Department of Justice learned Trump had been keeping highly classified documents there, ultimately resulting in federal agents executing a search warrant at the club as DOJ opened a related obstruction of justice investigation.
Unlike any politician ever tried in South Florida (or any court), Trump is a former president and current presidential candidate – and he’s one of the most-polarizing figures in modern history. And that’s a factor prosecutors contend with in bringing a case because jurors often come with their own biases about the criminal justice system as well as politicians they like or disfavor. The jury pool, after all, often reflects the voting rolls.
The jury-selection process is designed to weed out bias as prosecutors and defense attorneys still examine potential jurors’ beliefs, including their political opinions and how they vote.
That’s what makes Washington D.C. such an attractive venue for trying Trump. He received only 5.4 percent of the vote in 2020, compared to 46.8 percent of the vote nationwide. And that was before a pro-Trump mob, whipped up by the former president, sacked the U.S. Capitol on Jan. 6, 2021.
In Palm Beach County, pro-Trump sentiment is far stronger than in Washington. He earned 43 percent of the vote in his home county – meaning about 5 in 12 jurors could conceivably be pro-Trump. And since prosecutors need a unanimous jury verdict, those can be favorable odds for a defendant who, if he can’t get an acquittal, can hope that there’s at least one holdout juror, often one who nullifies the verdict by refusing to recognize the seriousness of the law or the case.
In Miami-Dade County, 46 percent voted for Trump. His support among Republican-leaning Cuban-Americans – a major bloc of voters who have high turnout rates in the county — is so intense that seasoned defense lawyers say they can’t imagine Trump being charged in Miami, even if one of the grand juries hearing the case is seated here.
“Forget documents, if Trump shot someone on Calle Ocho, a Miami jury would find him not guilty,” said David Oscar Markus, a top criminal defense attorney who successfully defended former Florida Democratic gubernatorial candidate Andrew Gillum in his corruption trial May 4.
It’s going to be a wild ride. Other advanced democracies have managed to prosecute chief executives from crimes committed in relation to their official duties.*** We managed to prosecute a sitting Vice President, Spiro Agnew, for his crimes as Governor of Maryland. And we’ve certainly prosecuted quite a few sitting governors and mayors. But Presidents, because of their dual role as head of state as well as head of government, are unique in our system.
_____________
*Nixon certainly broke a number of laws. But, for all his flaws, he legitimately cared about American national security. And when the Supreme Court ruled against him in the matter of the tapes, he turned the over and resigned the Presidency rather than throwing them in the fireplace—much less encouraging supporters to storm the Supreme Court building.
**There is at least a question on this front on certain matters of nuclear security which are classified as a matter of statute.
***The Guardian’s David Smith notes, “Trump could soon join a notorious club that includes Silvio Berlusconi of Italy, Nicolas Sarkozy and Jacques Chirac of France and Park Geun-hye and Lee Myung-bak of South Korea. All have been prosecuted and convicted of corruption in the past 15 years.”
According to the Boston Globe, Trump was notified of the the indictment at 7 p.m.
At 7:45 p.m., he began fundraising.
David French has a good analysis as to why trump needed to be indicted and why this is different from Clinton’s email server.
As far as what venue to charge him, to charge him in DC would invite a long dragged out court battle over appropriate venue. Trump’s lawyers would argue that the alleged crimes happened in FL so the case should be tried there. They could quite likely win on that. Lurking in the background, there is a case on the SC docket, to the effect that when prosecutors go venue shopping, the consequence for doing so should be that the charges are dismissed. Smith may prefer DC as the venue, but the disincentives in doing so are simply too great.
DOJ was preparing to charge Nixon but was preempted by Ford’s pardon.
@Sleeping Dog: Whether the crimes happened in DC or in Florida is a matter of debate. One could argue that removing the documents from the White House in the first place was the first criminal act, leading to the other acts of hiding said documents out of state.
If Trump took the documents to, say, Scotland, we wouldn’t be debating whether we needed to try him in an International court.
This will be an interesting case!
I don’t often discuss Trump with trumpers, as there is no point. But one time an obnoxious jerk insisted on discussing Trump’s “persecution by the attorney general” with me (in the waiting room of an oil change place, of all things!) I said exactly one thing: “Trump is a liar, a crook and a con man and he has always been. You knew it when you voted for him and now the chickens are coming home to roost. You have no right to be indignant. It was inevitable. It’s terrible that our country is going to get torn about because of this sleazebag.” After that I just ignored him.
I see you are still swallowing Trump’s claims about presidential powers of declassification whole, James, although you do note that Restricted Data is classified by statute.
Classification is a system of designating how certain information is to be handled. So if a president declassifies (that is, changes the designation) information without notifying anyone, is it really declassified? Systems exist for handling information, and they must be modified to handle that information differently.
I can think of situations – negotiating with another head of state, for example – where a president might want to use classified information outside the strictures of the system. But the system exists to protect national interests, and therefore a responsible president would think long and hard about such possibilities before they arose, just like I did before going to meetings that would involve discussions touching on classified information I held. I conferred with classification experts, as I hope a president would.
But I would also argue that if a president took that step, it would not constitute declassifying the information. It would be using classified information in a particular way. That other head of state would be likely to hold the information close as well, and there would be no need to publicly disclose the information.
Trump’s argument is that the president can do anything he wants with classified information. Perhaps in a narrow legal sense he can, but justifying that would require a close reading of the relevant statutes and executive orders, which neither Trump nor James has provided.
He is not. He hasn’t been for 2 1/2 years. Forget all of trump’s and his lawyer’s mumbo jumbo, what he was is not at issue here. What he IS, is a private citizen. Private citizens do not get to possess Nat Sec secrets. Regardless of what trump says he did way back when. Which we all know is a damned lie.
“But Presidents, because of their dual role as head of state as well as head of government, are unique in our system.”
They damn well better be, if we have the system we claim we have. We’re not talking about running a red light or blowing past a stop sign here. If a president breaks the law, he’s still an American citizen and subject to the same laws we are. If this threatens the nation in some way, if presidents cannot be charged because it will be divisive (and I have seen that argument in the last few days), then we can accept that we have bigger problems than just one rogue president who thinks he can do whatever he wants. And those problems remain even if Trump disappears in a puff of smoke tomorrow. We’d better start looking past Trump the man and get ready for the next autocrat who’s in the wings taking careful notes and won’t make Trump’s mistakes.
Ben Franklin: “A republic – if you can keep it.”
@Cheryl Rofer: My argument isn’t so much that Trump’s claims are right but that they’re untested. Outside of nuclear secrets, which are classified by statute, most (all?) other defense secrets are classified pursuant to executive orders going back to FDR. There’s a pretty strong presumption that Presidents have plenary declassification authority over those secrets.
@OzarkHillbilly: I’m aware Trump ceased being President on January 20, 2021. He claims to have issued blanket orders before then declassifying any document he took to Mar a Lago. I think he’s lying. But he may well have had the power to do so.
I read recently–I’ll try to find the article–that one of the key pieces of evidence was a former employee who worked in both the Obama and Trump administrations and stated that Trump “routinely” followed the correct procedure for declassification. Meaning, he knows and understands the correct process.
This “the president can declassify anything he wants” is a pretty small fig leaf to hide behind.
@James Joyner: Making our discussion irrelevant, CNN has a tape of Trump saying he didn’t declassify a document and no longer can because he’s not president, but still passing it around to presumably uncleared people to make an ego point about his differences with Mark Milley.
Trump’s arguments that a president can declassify documents “just by thinking about it” have always been nonsense, unless one thinks of classification as a mystical characteristic attached to the document itself rather than part of a system for handling documents. I’ve always been very practical, including those times when I was dealing with real “classified or not” issues, so I’ll stick with thinking of classification as part of a system rather than the more metaphysical interpretations.
Given this tape, it’s pretty clear that Trump’s claims to metaphysical declassification are after the fact attempts at justifying his position.
@Jen: @Cheryl Rofer: I think it’s quite possible DOJ can provide evidence that Trump didn’t declassify the documents. I think he’s lying. It’s just a hard thing to prove and the burden is on them.
@Jen:
I read the same artticle as did you. What I find hard to believe is that Trump routinely followed correct declassification procedure.
@James Joyner:
It’s a pretty easy thing to prove because there has to be proof for the authority to function. Otherwise, at this moment any document potentially could be declassified based on the President just having that thought.
@James Joyner: 1. I haven’t seen the indictment so it’s possible this is wrong, but the reporting I’ve seen suggests that the charges do not require classification as an element of the offense, which could avoid the whole “I declassified them in my head” lunacy.
2. To the extent classification is an element, the fact that a document was classified is easily proven. I would think (without actually knowing, since I don’t practice in this area) that “I declassified them in my head,” if such a thing was actually a defense, would be in the nature of an affirmative defense which Trump would have the burden to inject into the case. What proof could he ever offer of this inner declassification other than testifying about it himself? No competent lawyer would advise him to testify, but if he chooses to testify despite that there’s not enough popcorn in the world…
@MarkedMan:
“But one time an obnoxious jerk insisted on discussing Trump’s “persecution by the attorney general” with me”
My response would have been that people who chant “Lock Her Up” with respect to your candidate’s opponent have no right to complain about political influence in criminal justice matters.
@Tony W:
The crux of this case will be the obstruction charge and that occurred in FL. If trump had removed to docs, but returned them when requested, there would have been no investigation or prosecution.
@James Joyner:
That doesn’t make sense. A criminal can say anything about anything, that doesn’t make it the prosecution’s responsibility to disprove it. The feds can show that Trump mishandled classified material. Trump can claim that it wasn’t classified, but then it is on him to prove that. Or, he is free to simply assert that despite there being no evidence he did so before he ceased being President, and a jury is free to believe him or not. But there is no obligation for the feds to disprove his assertions.
@Sleeping Dog:
Thanks for that information.
I was wondering why a federal case relating to state documents would be tried in Miami.
@Roger:
The speculation is that he will be charged under the espionage act, that doesn’t mention classified documents, but simply documents that are important to the nat’l defense.
Also on the defense that he declassified the papers, while trump waves that around, his attorney’s have never offered that as a defense in court. If they did, they’d be required to present evidence to support the claim.
@Roger: That’s an interesting thought. Can Trump do the “I classified them in my head” defense without testifying? Can he just offer it in writing and then take the fifth when he is questioned about it. Or does he take the stand, just say “I declassified them in my head” and then take the fifth for everything after that?
Because I can’t picture his lawyers wanting him to testify about anything. Years ago Trump was moderately good in depositions, keeping mostly quiet and answering only the questions asked. He seemed to understand that a deposition was a different type of thing unsuited to his usual BS. But I don’t think he can operate like that any more. His lawyers know he is almost certainly going to lie if he gets on the stand.
@James Joyner:
Yes and he’s not President. His entire agreement after being caught red-handed is that he CAN, not that he did it when he legally would have been able to. President is not a permanent state of being and the powers are inherent to the office, not the individual. Trump is essentially arguing he’s got POTUS power eternal and also that Biden somehow doesn’t because if Dark Brandon decided to wave his hand and declare them SUPER SECRET MEGA ULTRA CLASSIFIED, Trump would be screwed by his own logic. It’s not that its untested, it’s a clear bad faith argument that silos declassification power to him and not the current POTUS.
If he had done it correctly, he’d have the receipts and that would be that. That’s the whole point of documenting the process is you have documentation when someone challenges you for proof. We don’t have to test the power in court to know he’s bluffing.
Let’s look at three high profile trials: Chauvin, Holmes, and Balwani.
Much bandwidth was used up speculating how hard it would be to secure a conviction in each case, how insurmountable were the odds, how formidable the task, etc. etc.
Except few if any commentators opined about Balwani, as compared to Chauvin and Holmes.
This is a small sample and proves nothing. So maybe the fact that Chauvin and Holmes are white while Balwani isn’t, just doesn’t matter. Maybe Balwani simply wasn’t as well known, even if he was the number two person at Theranos, carried out many of the practical aspects of the fraud, counseled Holmes about it, advised Holmes how to do things, and was sleeping with Holmes as well.
Maybe his lack of notoriety made it unnecessary to scare people into reading a column about how hard he’d be to convict, and how likely he was to avoid all consequences of his criminal actions.
@James Joyner: Actually, the burden on this issue is not on the government but on the defendant. While it is true that the presumption of innocence remains with the defendant until the government overcomes that presumption by proof beyond a reasonable doubt, the burden of persuasion shifts when the defendant asserts an affirmative defense such as Trump now claims that he declassified the documents while president. Once the government proves all of the elements of a crime the burden of persuasion shifts to the defendant to prove an affirmative defense.
@MarkedMan:
He will have to answer the question then “If Biden reclassifies them in his head, are you now in violation?”
Mental declassification (damn this timeline for now making this a term) as a POTUS power can only work if ALL POTUS possess it. His legal team can immediately be challenged with Biden’s power to do so and if they decide to assert Biden mentally reclassified all docs as soon as he took office, how’s Trump gonna lie his way out that? “OMG no he didn’t! You can’t know!” won’t work as well as any demands for proof. The only way they can assert Trump can legally do it and Biden can’t is claiming Biden isn’t POTUS, the underlying basis to all this.
What happens now is that Trump has just been guaranteed that he wins his party’s nomination. This proves that the liberals are out to get him since he is the only one they fear. As to the legal stuff people forget that while Trump is a liar and not competent at many things, he is actually pretty good at legal stuff. The guy sues and gets sued a lot. I expect he and his team will find ways to delay this until he is in office, at which point he will find ways to delay it until the end of his term, or if he is not re-elected until he dies.
Also, I totally disagree with James about SCOTUS. Unless the case is dropped it likely goes to SCOTUS and they will have an extreme interest in protecting Trump’s interests. It’s one thing to rule, occasionally, against an individual Trump policy or action but this would affect the ability of the GOP to remain in power.
Steve
Steve
Judge Aileen Cannon, a Trump appointee, has been assigned to oversee the intial phases of the documents trial.
I am loving watching MAGAdonia go apoplectic.
So many claims of this country becoming a Banana Republic.
Here’s the thing, MAGAts…if you elect a guy that has a history of fraud, of stiffing his contractors, of whoring around…who has been forbidden from running a charity, who has bankrupted numerous casinos and other businesses, who squandered a huge inheritance…then it YOU who made this a third world country.
This indictment is simply a first world country shaking off the stench.
But don’t listen to me. I will defer to Lady G;
If this CNN transcript is accurate, and there is no reason to think it is not, then this case is over before it even begins.
https://www.cnn.com/2023/06/09/politics/trump-tape-didnt-declassify-secret-information/index.html
@CSK:
She is the bonehead who exceeded her jurisdiction in an attempt to help Trump, earlier in this case.
She was overturned, harshly and embarrassingly, by the 11th Circuit Appeals Court.
@Daryl:
I know!
@CSK:
Aileen Cannon was the judge who earlier attempted to carry trump’s water and was slapped down hard by the court of appeals. Let’s see if she has learned a lesson.
The Republican tribal reactions on this subject rather give me the sense not only are the largest swath of them spineless creatures, but they are devoid of the sense of killer instinct that sadly Trump has.
See DeSantis e.g.
This subject is positively set-up to attack Trump from their own safe ground and gut him – which obviously for their own electoral interests is in their real interest.
Defence of Trump is idiotic from a purely reptilian power calculation PoV for the upcoming Presidential – one should want in competing with him to absolutely cripple him but from a safe base – for which the mishandling of government secrets with foreign powers implications is bloody ideal, there is no need to agree implicitely or explicetely with any Left or Democrat social agenda for example.
@KM: Indeed the mode of discussion about US President by the OP and others rather attributes a kind of power to presidential action (if no process at all is imposable in law) that is rather of a kind of 17th century Royal Divine Right level of personalised power sans limit.
I will hazzard what I think is a sensible prediction, without going into details:
After he loses the general election in November, Benito will take an overly generous deal and plead guilty.
@Lounsbury:
That is precisely what I used to think.
That intra-Republican power politics mean the others must destroy Trump.
But I’ve rather changed my mind.
– They missed the ideal moments to strike, during the impeachments, or just after the election or Jan 6.
– They mad-MAGA base remains devoted to Trump. Polling indicates he has a lock on at least a third of it; the most vociferous and active third, probably a majority of likely Rep primary voters.
– Much of the party elite, for various reasons, is prepared to go along with Trumpism, again, for their own various ends.
– Among those who’d prefer Trump gone, nobody wants to be the on who wields the knife.
“What happens now?”
We let the process play out. The burden of proof lies with the prosecutor. Do they have the goods?
Looks to me as yes, but I am a layman.
Other countries have dealt with this before. It’s uncharted waters here, but not unprecedented. Ford pardoned Nixon. Obama let the Bush shit slide. Clinton got impeached.
Maybe we would be better off today if we didn’t shuffle off our problems into the memory hole.
@Tony W:
It will be a lot easier to prove Trump’s illegal retention and obstruction and conspiracy (given he basically has admitted to all that already) than it would to prove how/when the documents were moved from the WH to Mar a Lardo.
Also, if the documents were moved while Trump still held office, was it even illegal at the time? He certainly had the authority to order them moved. It was only after he left office and refused to give them back that a crime occurred.
Trump will be represented by new lawyers on Tuesday. James Trusty and John Rowley are out. Trump’s keeping Todd Blanche and retaining a new firm.
He thanked Trusty and Rowley.
Trump Trashes Trusty!
(I couldn’t help myself)
Naughty Nauta Named!
CNN
(I’ll stop now.)
I just read Mitt Romney’s statement and while it is mostly fine, there is something that irked me,
There is an implicit assumption in “simply” that Trump is in this mess solely because of hubris and stubbornness. I think it is much more likely that the reason he didn’t comply and went to such great lengths to cover up is because he couldn’t comply, that some of the documents he stole were no longer in his possession and he couldn’t get them back. At the very least he was so careless and wanton with the documents that some could have been thrown out or, more likely, someone deliberately stole some either as a souvenir or because while acting as foreign intelligence agents. Onsite security for the documents themselves was nonexistent and the location where he held them, a golf resort, let in just about anyone (or their guests!) that could shell out the cash. Remember, we know of at least one Chinese national who spent time there under false pretenses and seems to have been acting at the behest of China.
And of course, another possibility is that he benefited from them personally. It is easy to believe that he turned over intelligence files on MBS in exchange for Saudi’s agreeing to host their golf tournaments at his clubs. Or Ukranian files to Putin in exchange for something else. It strikes me as naive to assume Trump still retained all the files but still refused to turn them over. At the very least, it flies in the face of his past 40 years worth of actions concerning records and documents, which kept him out of jail. He would delay, delay, delay, but in the end he turned them over.
@CSK: On CNN last night, they mentioned that one (or more) of his lawyers were barred from practicing in FL. I didn’t catch which ones.
Also, again on CNN, Trusty in his defense of Trump, said that a schedule of Trump’s visit to Afghanistan was only classified until the stuff on it happened and then it was public knowledge so no longer classified. Seems that he is confusing secret and classified.
@MarkedMan: All of which is a speculative filling in of blanks, and for which we don’t have any evidence or facts available to distinguish it from how Mitt Romney described it. Such facts might turn up, who knows?
I mean, yeah, that kind of aggressive speculation is common in political discourse, just let’s be clear what it is, and why some might be more cautious in what they say.
And now for some utterly baseless speculation of my own: We’ve heard it bandied about that there’s a snitch in the Trump camp. What if it’s Walt Nauta? Maybe he’s so scared he wants to be prosecuted to keep his snitchery secret?
#crazyasstheorizing
@MarkedMan:
I thought that Romney used the word “simply” to emphasize the utter self-defeating asinity of what Trump did.
@JohnSF: What I find puzzling – the lack of killer instinct, their cowardly passivity is contra 6Jan, they have ample evidence now that Trump is causing them to lose potential power, to lose elections… power. The cultural backlash against Culture-Left – what they call with a broad label woke- is not a mere invention, and sans Trump I would rather suspect they would have some success with.
The state secrets act violations provide beautiful Right-friendly (paranoia about furriners etc) knives to use that do not contra say 6Jan and domestic issues, have any necessary agreement or validation with Demorats or the Left.
@Jay L Gischer: I have nothing against people being cautious. But it is not cautious to assume that it was simply hubris or to imply that it was just ego. If you don’t want to speculate on his intent, then just say so.
@MarkedMan:
I suppose all of that is possible, especially selling secrets. there may even be reasons why a buyer would only pay for the original document and not a digital copy.
I will, however, reference a term much in vogue in the Cheeto years: unforced error.
There’s a long litany of such. Let’s consider just one:
The FBI had been conducting an investigation of Russian interference in the 2016 election. This was known, but fee details were available, and things proceeded quietly. Comey informed Benito he was not a target in this investigation, but some of his actions and those of his campaign were being looked at.
All Benito had to do then was nothing. Let the investigation proceed and not interfere in it.
Instead he turned it into a big deal. This led to the appointment of a special prosecutor, and ultimately the need to get Bill barr back into service as AG to spin the results in the least worst possible light*.
All because our beloathed Cheeto can’t stand to “look bad”**. So he meddles in his incompetent, ignorant, hubristic way, and winds up looking worse.
I’d bet $100 with high confidence he thought, for some reason, that returning the documents he absconded with would make him “look bad.” And then his nature just took its course.
*I’d still like to see El Cheeto indicted for obstructing the FBI probe and the Mueller investigation.
** Perhaps his greatest failing is he doesn’t realize that looking bad is his natural state, and 99 out of 100 attempts to fix things only makes him look even worse.
@CSK: Yes, but it implies that Trump had it in his power to comply. That he was just being ass rather than hiding a criminal act or gross negligence.
No one is obligated to speculate why Trump didn’t hand over the documents, but it is certainly reasonable and appropriate to do so in a criminal case.
@MarkedMan: I read Romney’s statement as indicating that the problem is an easy one to make go away, rather than refusing to make it go away is out of arrogance or hubris. But I can see why people who are invested in “Trump MUST BE PUNISHED for his crimes” don’t want to see this turn into another (ETA:) unhappy nothing burger meal.
@Kathy:
And if there was any way we could find out for sure, I would gladly take that bet. While I would never disagree with the proposition that Trump is an idiot, I also know that in forty years of legal wrangling he has been cunningly cautious when under oath or complying with court orders. It is fair to argue that his mental capacities have decayed or his hubris increased to the point he can’t control himself any longer or perhaps feels he is untouchable, but my money is that documents had gone missing and he was desperate not to have that come out.
@just nutha:
It is only easy to make go away if Trump still had all the documents. It’s not just Romney, virtually all talking heads are spouting off as if it is certain that Trump is only guilty of hubris or malignancy or stupidity, and there is no use in even contemplating criminal negligence or worse. Why is it that when we have any other alleged criminal it is accepted that we will try to understand their motives, but with Trump it is “we must assume the least damning motive and cannot even speculate about any other, unless or until it is brought up in court”?
@BugManDan:
I saw that, and I did a double-take. The lawyer in question isn’t barred from practicing, he’s barred in order to practice.
It’s a very confusing locution. Apparently, Trusty and Rowley, the two who resigned, are not barred to practice in Florida. Todd Blanche is.
Here’s a link to the unsealed indictment
@Kathy: LOL, beat me to it by 1 minute. Reading now.
https://twitter.com/AndrewFeinberg/status/1667225599994109963
Well, there was definitely a snitch. They’ve got photographs (altered to protect identity) of the boxes sitting in various highly unsecure places at MAL. Yikes.
@James
Let’s make a list of everything concerning the Republican Party that is NOT bizarre these days. It should only take a few minutes.
I’ve weighed in on the declassification debate before, and to me, it’s pretty clear the President has plenary authority here.
The question then becomes whether Trump will claim that he declassified all this stuff before he left office, and if he does claim that, whether a jury would believe him. He’s very unlikely to have any evidence to show that he declassified stuff. Those of us who have worked in government understand that often times we need to write a memorandum for record to document stuff we do for CYA if nothing else. There’s no evidence at present that Trump did that and that’s not his MO.
And then there is the transcript of him admitting he had classified documents that he didn’t declassify when he was President.
So given those two things, I find it hard to believe that a jury would find the claim that Trump declassified stuff before he left office credible.
But even if they were declassified, they are still government records. And I don’t see much room for Trump to avoid how he and his team obstructed the feds from trying to retrieve those records. So even if the classified information charges don’t stick, there are other things he is likely to be guilty of.
Wow. I think this actually could be the end for Trump. Nuclear secrets, asking lawyers to lie and destroy evidence. Very specific. I wonder how many immunity and plea deals went into this? Wow wow wow. Mark Meadows must be thinking of a witness protection program about now. Jack Smith is going to make a statement soon. Wow.
@Andy:
Reading the indictment it appears that Trump made statements that appear to suggest that he knew they were classified and that he shouldn’t be showing them to people.
Now some might argue that this is puffery (a legal term), but that seems pretty damning. Likewise his suggestions that his lawyers destroy documents.
Unfortunately the words “prison” and “jail” both begin with consonants, so there’s no good way to work them into and acronym for what should be the new deplorable slogan: Make Prison Great Again.
I am irritated.
Indeed, I’m verging upon being rather peeved.
@Matt Bernius:
Apologies Andy, I totally was distracted when I read your analysis (I was wrapping my mind around how detailed the indictment was and how much evidence they already have against the President) and missed this paragraph:
I agree across the board with the post.
Also, can someone with direct experience with classified docs explain the meaning of “Five Eyes” markings?
@Matt Bernius:
Apologies Andy, I totally was distracted when I read your analysis (I was wrapping my mind around how detailed the indictment was and how much evidence they already have against the President) and missed this paragraph:
I agree across the board with the post.
Also, can someone with direct experience with classified docs explain the meaning of “Five Eyes” markings?
@Andy: The problem Trump’s attorneys will face is that to make this defense they will have to put Trump on the stand. There is no way to make the defense of declassification without his testimony and he would be a sitting duck on cross.
@Kathy: “Incarceration”? MIGA?
In the indictment there is a recounting, with a photograph(!), of how Trump employees discovered a big spill of documents all over the floor of the storage room, including very sensitive ones.
There’s also a photograph of ALL the boxes sitting on the stage in the ballroom at MAL. All of them.
[Gasps, blinks, shakes head]
@Kathy:
Well, there’s “Make Arrest Great Again” or “Make Apprehension Great Again.”
@mattbernius: I know that in general, “Five Eyes” refer to the countries Australia, New Zealand, Canada, United Kingdom, and the US, who have a very, very close intelligence cooperation/sharing agreement.
@MarkedMan:
While I agree with you that the docs trump no longer has are those that he’s sold or given away, I can’t disagree with Mitten’s framing, since that is suspicion without evidence.
Note that among the ongoing investigations by the special counsel, is a recent subpoena covering trump’s business activities during his prez term.
@Jay L Gischer:
I’ll speculate that there is more than one snitch. The people closest to trump are likely the ones that are flipping. It is pretty clear, to anyone with a pulse, that his orangeness will throw anyone under the bus, no matter how loyal.
@MarkedMan:
There are photocopiers. In the hypothetical where he was handing documents over to foreign powers for money, he wouldn’t hand over the originals. What if he wanted to sell the information to someone else?
We all have our pet theories for his motivations*, but this doesn’t support yours.
——
*: my pet theory is that Trump embodies every flaw in humanity, from the most trivial to the most awful, and that motivations are a frothy mix of the petty, plotting, spiteful and hubris.
He kept the documents because he wanted insurance, he wanted money (he’s repeatedly said that Nixon was paid for his documents), he was angry he lost, he couldn’t be bothered to have stuff sorted, he didn’t care, and god damn it no one was going to tell him what to do. All of it, all at once.
@Sleeping Dog:
It is the most normal thing in the world to speculate why a criminal committed a crime. If the talking head class suddenly don’t want to do that, fine. But they are going further, they are accepting that there is nothing beyond Trump’s personality at work here and repeatedly stating that. I would consider that “exoneration without evidence”.
@Gustopher:
A fair point, inasmuch as we are talking about Trump selling the documents or giving them away. I could make the argument (and give the advice) that a criminal would be very stupid to copy a document on a modern digital copier and thinking there would be no record of the that, but Trump is a moron, after all. But in any case it doesn’t address my actual bet, which is Trump panicked when they started asking for the documents because he doesn’t have all of them. Aside from him selling them or giving them away, there remains keeping them so insecure that others were able to steal them, or keeping them so haphazardly that some went out with the trash.
Look at page 46 of the indictment. It lists the types of criminal charges, along with maximum sentences.
The first type (counts 1-31), Willful retention of national defense information, carries a max sentence of ten years (presumably for each count).
The second (count 32) Conspiracy to obstruct justice, carries a max sentence of 20 years.
This totally first Benito’s pattern. He finds a way to make a bad situation worse.
You know, I feel like the person who spilled all the documents in the storage room is likely to be Trump himself. It it was some foreign agent, I would think they would be more careful.
@MarkedMan:
I don’t know, but then again, I’m not big on playing that particular card except as a sentencing tool or a situation where understanding motive might legitimately play into acquittal. Either way, “I think he lost/sold the documents he doesn’t have” is going to be a steep climb even assuming that the National Archivist can point to specific documents that have “gone missing” and were in Trump’s possession.
ETA: Moreover, Romney’s statement–or at least, the part you cited makes no assertions/speculations about any conditions that would complicate “simply” returning them. But as I also noted in my previous comment, I get why you keep punching this particular strawman. It will be sad that Trump simply becomes another “government person who gets away with stuff.”
And I hope it doesn’t go that way.
@CSK: Ah, thanks.
I have since seen that Trusty & Rowley resigned rather than were fired.
Why are folks still hungup on the documents’ classification when Trump is not being charged with mishandling classified materials? The charges are 31 counts of “willful retention of national defense information” + 6 other obstruction-and-conspiracy related counts.
Early on, I read a few legal analyses that argued the documents’ classification status would end up being largely moot except as a potential aggravating factor (for the prosecution to raise at trial) — or a mitigating one (for the defense, if jurors will buy “plenary” declassification-by-thought lol).
@just nutha: The intruder was captured carrying a knife into Mrs. McGillicutty’s bedroom as she lay sleeping. “I can’t believe how stupid he was to think there was a roast to be carved in the bedroom! But isn’t that just the way?!”, says the pundit. (Any talk of other reasons is “suspicion without evidence”.)
@Jay L Gischer: Sure, but what’s the point in caution when the aim is vilifying Trump. Where are your priorities?
@mattbernius:
Hey Matt,
In terms of classification markings, “Five Eyes” means the information is releasable to the Five Eyes countries others mentioned earlier in the comments – The US, UK, Australia, Canada, and New Zealand. These countries have a standing agreement to share certain types of intelligence.
Intelligence of any classification level (Confidential, Secret, TS, SCI, etc.) can have Five Eyes releasability. In other words, Five Eyes is not a classification level, it’s a dissemination control marking that shows which governments have access to the information.
I’m surprised no one’s making a bigger deal over the choice of Aileen Cannon as the judge overseeing the case. Isn’t that like, I dunno, the fox in charge of the henhouse? Doesn’t this mean it will end disastrously for the prosecution?
I refuse to believe the prosecutors are incompetent enough to have been blindsided by this development. But I’m surprised how little comment there’s been about it so far. Everyone’s just noting it and moving on. That baffles me.
@just nutha: The reason I keep punching has nothing to do with what may be proven in court, as I admit that so far there is no evidence in the indictment pointing to it. So the reason I bring it up here is that this is a blog comment section where we discuss our opinions and speculations, not try a criminal case in court, and I sincerely believe that based on everything I know about Trump and how he has reacted in the past, I truly think one of the big reasons he obstructed was because he no longer has some of the documents and he can’t get them back. “Straw Man” implies I’m just putting it out there even though I don’t believe it. But I do, or at least I think it is likely enough that I would put money on it, and I rarely, rarely bet.
@DK:
Because trump has harped on declassification and the early coverage focused on classified docs. Taking classification out of the arguments, on either side, changes the arguments in a manner that makes them null and void.
@CSK: And to clarify further (because I still wasn’t sure of the distinction–and so will assume others may not be also) “Barred to practice means you can practice. Disbarred means you are not allowed to practice (i.e. Barred from practicing).” [emphasis added]
And to further clarify why the locution is so convoluted (in Florida):
@Kylopod:
From the info I’ve gathered, it is not set that she will be the presiding judge beyond the initial hearing.
@DK:
To put it simplistically, “classified information ” is a subset of “national defense information”
The guy (Texiera) from the Air National Guard who leaked classified info to gaming servers was also charged under this statute. Texiera was also indicted under the classified info statutes, Trump was not. I don’t know why Trump wasn’t, but I’d speculate that it was to avoid the issues of Presidential classification authority discussed above. “National Defense Information” does not have to be classified, it is a more broad category than classified information.
@Sleeping Dog:
And if Cannon does something Trump doesn’t like, he’ll be at her throat in a flash.
@MarkedMan: Argumentum ad absurdum much? (And yes, I DO know that partisan hacks do that type of stuff. On the other hand, it’s how we know they’re partisan hacks.)
@Jay L Gischer:
Another possibility is that the Feds are trying to turn him. Even him taking a plea deal with guilty plea looks very bad for his co-defendant.
If Walt Nauta flips on Trump, that’s it for Trump.
A lot hinges on the nature of the docs he tried to keep. I suspect Trump’s best shot is having a reason for retaining those docs the jury will buy and forgive. Misc BS that can be claimed to be momentos? Maybe. Nuke secrets, war plans and things useable for extortion? Not so much.
Jack Smith said his team would seek a speedy trial.
That’s not good enough. The Cheeto deserves the speediest of trials. Nothing else will do. It should all be wrapped up by October 31st 2023 at the latest.
BTW, the title for the movie based on this prosecution is soooo easy: Mr. Smith Goes to Mar-a-Lago.
@MarkedMan: It turns out we’re BOTH not understanding what a strawman is. So I’ll abandon the argument, noting that I’ve commented enough on how hyperbolic I see your assertion to be (which is what I should have been
assertingsaying all along, but I’m losing my edge now that I’m six years or more away from my career as a corrupter of young minds).Having skimmed the indictment with its many photographs of the boxes in many places (in MAL), I fully expect an Internet meme of the boxes at tourist destinations around the world. I will be disappointed with the Internet if they are not already being posted.
Having skimmed the indictment and its several photos of the boxes of documents in different places (all at MAL), I will never forgive the Internet if pictures of the boxes at various famous tourist destinations does not become a meme. I need to see them at the Eiffel Tower and Mount Rushmore.
@Joe: I can see them now–The Eiffel Tower, Angkor Wat, The Hagia Sophia, in a canoe going over Niagara Falls, photobombing a group visiting Willamette Falls, the opportunities are truly endless.
ETA: Mount Rushmore is a genius move. Maybe also one with the stack of boxes looking like they’re bracing up the Leaning Tower of Pisa?
@just nutha: Are you calling me a partisan hack? If so, you are way off on the wrong track.
@CSK:
She has a lifetime appointment and he’s going to jail. Not much of a threat.
The earlier court of appeals reversal was pretty humiliating. I suspect that she learned a hard lesson that simply because a prez appoints a judge that those judges, will look out for him. Of the 3 judge panel, 2 were trump appointees and I believe the writer of the opinion was one.
If I was running the sound system at Mar A Lago now I would be concerned about the owner’s stress level, and would select a bit of soothing music.
Trial, followed by prison. SATSQs.
@Sleeping Dog:
I meant that Trump would attack Cannon the way he’s attacked Alvin Bragg and Judge Merchan and E. Jean Carroll–verbally.
@dazedandconfused:
😀
@Sleeping Dog:
As John Maynard Keynes famously said in response to critics of the evolving nature of his economic theories, “When the facts change, I change my opinion.” It seems they were right, the legal nerds who pointed out all along the documents’ classification status would probably not matter so much one way or another.
One, he’s not being charged with mishandling classified materials as others have been.
Two, it appears his “willful retention” and storage of sensitive documents — and obstruction of attempts to recover them — is still illegal despite his magical-mind-declassification of them (another likely reason why his lawyers have yet to raise this defense in court filings, on top of its ridiculousness).
Three, per the unsealed indictment, nuclear secrets were among the documents, and as political junkies have learned by now, these are classified by statute and outside the purview of the president’s plenary powers of declassification-by-paranormal-thought.
So…what’s with our failure to change our opinions re: all this (de)classification chatter now that the facts have changed? I don’t get it. And hat tip to the legal nerds.
@Andy: Dankeschön!
@just nutha: Oh, I’ll be disappointed as hell if the internet doesn’t do better than that and put signatures on all the boxes. “To Vlad, with Love, your friend forever, Trump”…..”To my Dearest KJU, Frenz Forever, Love, DJT”
Talking points on the right is that Biden has indicted Benito for political reasons. You know, Biden’s afraid of facing him in 2024, and/or he’s going after his political rival, yadda, yadda, yadda, like in a banana republic.
Odd that politicians in the country that originated so many banana republics have no clue how these work.
Past the obvious that it was the DOJ through a grand jury and not Biden who issued the indictment, in a banana republic El Cheeto would have been arrested and thrown in jail days after Biden took over. the show trial, conviction, and incarceration would have been done by mid-2021.
BTW, this is how conspiracy theories get started these days, by mere assertion. Later they may get added embellishments and rationalization. But for now, “everyone knows Biden indicted Benito for political reasons.”
@MarkedMan: No, I was simply noting that people who ARE partisan hacks make the kind of argument that you were using in your ad absurdum example of “what pundits say.” Now, if what I replied to you triggered your conscience, I would suggest that you might want to take some time to be introspective. But, if what I replied triggered your outrage, you should consider dialing back a notch or four. We had a similar “ARE YOU SAYING THAT …” event [emphasis to indicate the tone in which I heard your question] when I noted that whether cultural outsider readers are capable of reading literature from foreign (to the outside readers) cultures* was a topic that my MA thesis needed to address.
*I will note, in passing that another respondent to that comment asked “what was your conclusion” in response rather than “ARE YOU SAYING…” Either way, we all have to be who we are, and seeing who we are is a challenging task most of the time. Robert Burns wrote a stanza in a poem (or was it merely a pithy aphorism?) about it.
@dazedandconfused: Bwahahahahahahahahahaha! LOL! ROFLMAO! I thought of a different song. Not as soothing, but just as heartfelt.
@Jax: Your comment is an example of why I’m not in charge of creating internet memes. Great addition! I don’t think that would have occurred to me.
@Just nutha ignint cracker:
Ha! You are completely misreading the situation. Not a bit of outrage on my part. You think I’m hyperbolic in this, I think you are naive to a fault, but in the end it’s unlikely we will ever know. But if something comes out and it shows I was wrong, then I was wrong. I’ll be fine with that and I’ll buy you a virtual beer.
@James Joyner: It seems to me the only evidence that Trump declassified any of these documents, or believed he had a right to retain them, could be in the form of Trump’s own sworn testimony. In the E Jean Carroll case, similarly, he was the only person who could swear prosecution witnesses were lying – and he chose not to do it. Judge Cannon’s special master gave him the opportunity to assert through counsel that he’d declassified these documents – and he passed. At heart Trump is a coward who fears not being in absolute control, so he would refuse to submit to cross-examination in open court no matter how crucial his testimony was to his defence.
Consequently I believe the jury will be presented with a mass of documents with classification markings and zero evidence to suggest they are anything but what they appear to be. They will presumably reach a verdict accordingly.