Like a Guilty Thing Surprised
Wall Street Journal, Justice Department Told Trump in May That His Name Is Among Many in the Epstein Files
N.Y. Times, Trump Administration Live Updates: Attorney General Alerted Trump His Name Appeared in Epstein Files
Jonathan Chait (The Atlantic), Trump’s Epstein Denials Are Ever So Slightly Unconvincing: The president is not behaving like an innocent man with nothing to hide
The two news articles are from this afternoon. The Chait opinion piece is from this morning.
So, here’s my top list of things I’d like to know.
- I’d like to see the whole 2003 Epstein birthday book. By the way, someone almost surely has the original. Who has it, how can we get it, whose messages does it contain, and what do the messages say? (And if, perchance, the original has been misplaced, there are bound to be copies of the book.)
- There are said to be thousands of pages of investigative files. Do those thousands of pages enlighten us about who, if anyone, other than Jeffrey and Ghislaine were using the girls? And, were there blackmail materials on these other people, if there were other people? Was blackmail being paid, and, if so, by whom?
- And was Trump among the customers, assuming there were any customers? (The FBI, we are told, has had a host of minions examine the files, marking references to Trump. What kind of work product did the minions produce? Just lists of references to specific documents and pages? Annotated lists? Memos? How can we get the work product, and what will we learn from it?)
In advance of knowing these things, I would like to know why, if Trump is not as guilty as homemade sin, why he is acting as if he were as guilty as homemade sin. Like a guilty thing surprised.
Jonathan Chait would like to know these things, too. He writes,
Imagine you were an elected official who discovered that an old friend had been running a sex-trafficking operation without your knowledge. You’d probably try very hard to make your innocence in the matter clear. You’d demand full transparency and answer any questions about your own involvement straightforwardly.
Donald Trump’s behavior regarding the Jeffrey Epstein case is … not that.
The latest cycle of frantic evasions began last week, after The Wall Street Journal reportedthat Trump had submitted a suggestive message and drawing to a scrapbook celebrating Jeffrey Epstein’s 50th birthday, in 2003. This fact alone added only incrementally to the public understanding of the two men’s friendship. Rather than brush the report off, however, Trump denied authorship. “I never wrote a picture in my life,” he told the Journal—an oddly narrow defense for a man reported to have written “may every day be another wonderful secret” to a criminal whose secret was systematically abusing girls, and one that was instantly falsified by Trump’s well-documented penchant for doodling.
On Truth Social, Trump complained that he had asked Rupert Murdoch, the Journal’s owner, to spike the story, and received an encouraging answer, only for the story to run. Under normal circumstances, a president confessing that he tried to kill an incriminating report would amount to a major scandal. But Trump has so deeply internalized his own critique of the media, according to which any organ beyond his control is “fake news,” that he believed the episode reflected badly on Murdoch’s ethics rather than his own.
Having failed to prevent the article from being published, Trump shifted into distraction mode. In a transparent attempt to offer his wavering loyalists the scent of fresh meat, Trump began to attack their standby list of enemies. On Friday, Tulsi Gabbard, the director of national intelligence, renewed charges that the Obama administration had ginned up the Russia scandal to damage Trump. None of the facts she provided supported this claim remotely. The entire sleight of hand relied on conflating the question of whether Russia had hacked into voting machines (the Obama administration said publicly and privately it hadn’t) with the very different question of whether Russia had attempted to influence voters by hacking and leaking Democratic emails (which the Obama administration, former Special Counsel Robert Mueller, and a subsequent bipartisan Senate-committee investigation all concluded it had done).
Why did Gabbard suddenly pick this moment to release and misconstrue 2016 intelligence comprising facts that the Obama administration had already acknowledged in public? Trump made the answer perfectly clear when he used a press availability with the president of the Philippines to deflect questions about Epstein into a rant about the need to arrest Obama.
“I don’t really follow that too much,” he said of the Epstein matter. “It’s sort of a witch hunt. Just a continuation of the witch hunt. The witch hunt you should be talking about is that they caught President Obama absolutely cold.” Trump has yet to specify why the “witch hunt” he’s been stewing over nonstop for nearly a decade remains fascinating, while the new “witch hunt” he just revealed to the world is too tedious to address.
In fact, Trump himself suggested that the two matters were related. He described the Epstein witch hunt as part of a continuous plot that culminated in Joe Biden stealing the 2020 presidential election. (“And by the way, it morphed into the 2020 race. And the 2020 race was rigged.”) You might think that this link would increase Trump’s curiosity about the Epstein matter, given his inexhaustible interest in vindicating his claim to have won in 2020. Not this time!
By invoking 2020, Trump managed to make the Epstein conspiracy theory sound moreworld-historically important—while attaching his protestations of innocence to claims that were hardly settled in his favor. Again, imagine you were in Trump’s position and were completely innocent of any involvement with Epstein’s crimes. You would probably not try to compare the Epstein case to the scandal in which eight of your associates were sentenced to prison, or to the other time when you tried to steal an election and then got impeached. Instead, Trump is leaning into the parallels between the Epstein case and his own long record of criminal associations and proven lies, arguing in essence that the Epstein witch hunt is as fake as the claim that Biden won the 2020 election (i.e., 100 percent real). …
Perhaps Trump is simply so habituated to lying that he has no playbook for handling a matter in which he has nothing to hide. Or maybe, as seems more plausible by the day, he is acting guilty because he is.
What Trump Means When He Says “It’s a Hoax”
I was writing this post in my head when the Wall Street Journal served up this treat today at dinner time.
Donald Trump is, and has been for a long time, a bully, a liar, a con man, and a sociopath. Now he is something else as well—a doddering old fool. Whatever coherence his ramblings once had is disappearing fast. That said, one can construct something out of his disjointed utterings.
When Trump says that Thing X is a “hoax,” he means that
- Thing X actually occurred or is now occurring, and that
- Public knowledge about Thing X would reflect very badly on him—worse even than public knowledge that he routinely grabbed adult women by their genitalia, and bragged about this behavior.
I won’t regurgitate the whole sordid business. But it seems clear beyond peradventure of doubt that Trump is in the voluminous Epstein investigatory files, and that he is drenched in flop sweat.
To address this predicament, Trump now wants everyone to believe that Epstein was not in fact a pedophile; that he should not have been prosecuted (during Trump’s first administration) because Epstein did nothing wrong; and—by implication—that Epstein’s lover and co-conspirator, now in jail, did nothing wrong either; and that these wrongful prosecutions were the result of evil Democrats, just like the January 6 prosecutions.
To this end, Trump will cast James Comey’s daughter and career federal prosecutor, Maureen Comey, as chief villainess in the purportedly unjust prosecution of Jeffrey Epstein and Ghislaine Maxwell. That’s why he fired her yesterday.
From Team Trump’s perspective, firing Ms. Comey was a very bad idea.
As a former corporate advisor, I always told people to be careful about firing unsatisfactory employees who had dirt on you.
Firing Ms. Comey is mistake number 796. She has dirt on Trump.
Meanwhile, In Late Evening Developments
Trump says he is suing the Wall Street Journal, and all its corporate uncles, cousins, and aunts, for publishing the Epstein birthday letter.
It is widely reported that MAGA influencers—trying to play both ends against the middle—are asserting that the WSJ story about the birthday letter is fake news.
And Trump says he’s ordered the Justice Department to go to court to seek public disclosure of grand jury materials relating to Epstein.
And a final nightcap:
Trump, the Supreme Court, and Government Employee Firings: Let Us Now Rend Our Garments and Clothe Ourselves in Sackcloth and Ashes!
I’m Sorry, but to Understand Anything About What’s Going On, You Need to Know a Little Something About Preliminary Injunctions
Smith sues Jones, and asks the court for a preliminary injunction, claiming that Jones is quickly, and illegally, creating “facts on the ground” that cannot easily be reversed after a final decision finally arrives. How does the court decide whether to grant the preliminary injunction? Answer: by trying to answer four specific questions:
1. Which side is more likely to win the case, on the facts and the law?
2. If there is no injunction, and if the plaintiff, Smith, ultimately wins the case, can Smith still get justice, for example, by collecting damages? Or are Jones’s current actions doing harm to Smith that is “irreparable”?
3. If Smith is going to suffer “irreparable harm,” is that harm nevertheless outweighed by the harm that Jones will suffer if the court forbids acts that may ultimately be found to be lawful?
4. Apart from Smith’s interests, and apart from Jones’s interests, what is the public interest?
Whenever a legal rule requires a court to pour a bunch of factors into a pot, stir them around, and then see what the resulting brew tastes like, the process is likely to be somewhat messy and somewhat unpredictable. That said, most lawyers understand that the first factor—we call it “likelihood of success on the merits”—tends to be dispositive.
Trump v. American Federation of Government Employees
In this case, decided a week ago, eight of the nine justices joined in a short opinion saying that the government employees union should not get a preliminary injunction, because it was unlikely, at the end of the day, to prevail on its claim that Team Trump was illegally planning to fire lots of workers. I wrote about the case last week.
McMahon v. New York
The McMahon Supreme Court ruling came a few days later, on Monday of this week. As in the American Federation case, the Court ruled for Team Trump. (The case was about whether mass firings at the Department of Education could continue, while the courts were dealing with the case on the merits.) Unlike the American Federation case, this was a 6 to 3 decision, not an 8 to 1 decision. And, unlike the American Federation case, the majority offered no explanation whatsoever about how it applied the four factor test, and about why it reached the result that it reached.
In many quarters, McMahon engendered a noisy wailing and gnashing of teeth, and a call for all law-abiding citizens to rend their garments and dress in sackcloth and ashes—because the Supreme Court has gone over to Darth Vader.
They may be right. But my view is that the catastrophists are a little premature. I shaved with Occam’s razor this morning, and Occam and I both submit that, having explained their reasoning in the union case, the majority probably acted differently in McMahon because there were not six justices who were willing to say in black and white that they thought the government would be proven right on the merits.
And, if Occam and I are speculating correctly, the assumed caution is a reason for cautious optimism. And the assumed caution would be fully justified. Certainly, as to the massive government firings, there is one hell of a lot of litigation yet to come.
Justice Sotomayor’s Dissent in McMahon (Joined by the Other Two Liberals)
I promised a friend that I would reproduce the dissent. So here it is.
How’s That Epstein Coverup Workin’ Out for Ya, Mango Mussolini? Tonight’s Headlines Would be a Clue
From the Guardian:
As Predictable as Day Follows Night, As Friday is the Day After Thursday
I had already written this post in my mind before I read the Politico story, published about an hour ago.
Trump Has Scored a Famous Victory Over the MAGA Influencers. Or Has He?
Today, the talking heads are talking nonstop about how Trump seams to have beat the Epstein conspiracist MAGA influencers into submission—and how they’re singing a different tune from the one they sung on Friday, Saturday, Sunday, and part of Monday.
And whether or not Trump’s effort to tell his base to forget about Epstein will work or not.
The answer is that it all depends. It depends on whether the lunatic part of our American brethren and sistern will choose to believe Trump or whether they will choose to believe what they have believed about the pedophile ring coverup for the past decade. And a basement full of trafficked children in a Washington pizza restaurant that doesn’t have a basement.
That’s because the term “influencer” is inaccurate and misleading. The MAGA influencers don’t really influence. What they are good at spouting back to their listeners and viewers what their listeners and viewers want to hear.
As I would have said back when I was practicing antitrust law and relying on forensic microeconomists, the influencer competition for market share is fierce, the market is dynamic, and entry is easy. Just video yourself on your smartphone, post the video on YouTube, and start making money.
Given the market structure, given the incentives, and given the Zeitgeist, it is inevitable that some would-be influencers are going to come along spouting the theory that the pedophile ring has got to Trump and that he has gone over to the dark side.
I didn’t predict—though I should have predicted—that Nikki Haley would be among the first to stride across the stage in her high heels and begin the competition to sell alternative conspiracy theories.
Others will follow. Many others.
Game on. Now it’s up to the base to see which competing conspiracy appeals to their deformed, paranoid minds.
He’s Releasing the Files! To Catch All the Pedophiles!
I fear this post will ruin my chances of being hired by the FBI.
Rick Wilson Explains How Trump is Losing His Superpower This Weekend
The N.Y. Times Finally Catches Up on Trump v. CASA, “Nationwide” Injunctions, and Class Actions
Adam Liptak (N.Y. Times), Trump’s Birthright Citizenship Ban Faces New Peril: Class Actions: In last month’s decision limiting one judicial tool, universal injunctions, the court seemed to invite lower courts to use class actions as an alternative.
And, While You’re Over at the Gray Lady, Check Out:
N.Y. Times Editorial Board, ‘I Am Not an Idiot’: Dozens of Federal Judges Have Had It With Trump
The U.S. Justice Department normally employs about ten thousand lawyers. When you fire all the competent ones and replace them with hacks who were lucky to survive the first week of law school, this is what you get.
Chicken Little Clucks Again: The Supreme Court and the Federal Employees’ Lawsuit
A couple of days ago, on July 8, the Supreme Court issued its ruling in Trump v. American Federation of Government Employees. There was a two-paragraph unsigned decision by eight of the nine justices, there was a short concurring opinion by Justice Sotomayor explaining why she went along with the conservatives on this one. (Justice Kagan, who also went along with the conservatives but didn’t say anything on her own, presumably agreed with Justice Sotomayor.) And there was a lengthy and strong dissent by Justice Jackson.
The case involved Trump Executive Order 14210, dated February 11. You can read it here—and it might be a good idea to take a gander, because you will see that it orders the executive agencies to develop some plans, and to do so in accordance with applicable law.
Now Team Trump has some pretty screwy notions about what applicable law requires and doesn’t require. And the plans to be developed—essentially, schemes for a massive reduction in the federal workforce—would call for very unwise and very probably illegal actions to be taken.
Still, they were just plans. And the question before the Court was whether Trump was likely to win in his claim that the Constitution doesn’t prevent him from making plans—plans that he claims will be in accord with applicable law.
As I said, eight justices—two liberals, three wingnuts, and the three judges in what passes these days for the middle—all agreed that “The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order …, not on any assessment of the plans themselves. Those plans are not before this Court.”
In the Wake of the Decision
A number of lawsuits involving specific federal agencies remain ongoing. In a couple of cases, Trump’s plans have been blocked, and the validity of those injunctions was not before the Supreme Court this week. Much additional legal activity will surely follow.
Meanwhile, a plethora of catastrophizing headlines scream that the Supreme Court has given Trump the green light to fire federal workers.
True—but misleadingly incomplete. What they have actually done is to give Trump the green light to try to institute a massive reduction in force, and to do it as fast as they can, before litigation catches up with them. That said, there is also a green light for courts to enjoin the hell out of RIFs in specific agencies, if the RIFs don’t comply with a whole lot of legal rules, including the requirement that Congress be consulted on massive changes to the federal workforce.
The labor lawyers are going to have a good year.
I Told You So
What Just Happened
Contrary to the views of headline writers who did not go to law school and who suffer from chronic confirmation bias, in the recent case of Trump v. CASA, the Supreme Court opened the door to nationwide injunctions against Trump in cases where plaintiff classes have been certified according to Rule 23 of the Federal Rules of Civil Procedure.
Today, the first such injunction was granted, by a federal district judge in New Hampshire, in a case spearheaded by the American Civil Liberties Union and its allies.
The judge “ruled from the bench”—meaning that the formal text of most of his ruling isn’t available, at least currently. (The order certifying the class, however, is found here. As I predicted, Trump’s own executive order does a fine job of defining the class that is being certified.)
The ACLU’s press release reads in part,
CONCORD, N.H. — A federal court in New Hampshire today blocked President Trump’s executive order restricting birthright citizenship and certified a nationwide class that protects the citizenship rights of all children born on U.S. soil. The case is Barbara v. Donald J. Trump.
The ruling stems from a nationwide class-action lawsuit filed June 27, immediately after a Supreme Court ruling that potentially opened the door for partial enforcement of the executive order.
The American Civil Liberties Union, ACLU of New Hampshire, ACLU of Maine, ACLU of Massachusetts, Legal Defense Fund, Asian Law Caucus, and Democracy Defenders Fund brought the challenge on behalf of a proposed class of babies subject to the executive order. It seeks to protect all impacted families in the country in the wake of the Supreme Court’s recent decision in Trump v. CASA, which directed courts to consider narrowing nationwide protection that had been provided in the first round of challenges to the executive order attacking birthright citizenship.
The groups were in court today successfully arguing for a preliminary injunction and nationwide class certification. The ruling was made from the bench.
In granting the request, the court provided for a 7-day delay so that the government — which argued to the Supreme Court that a nationwide class was the appropriate way to seek nationwide protection in the birthright cases — could nevertheless try to get the First Circuit Court of Appeals to stay the relief, if it decides to pursue that option. Even with a 7-day delay, the ruling will go into effect well before July 27, when partial implementation of the unconstitutional order might otherwise have begun.
“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrant’s Rights Project, who argued the case.“We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.”
What Happens Next?
Team Trump could wait for more decisions along the same lines by district courts around the country, in order to forum shop for the best appellate court. More likely, I think, is that they will appeal to the federal appellate court in Boston, which will quickly rule in the ACLU’s favor, so that the Supreme Court will have to address the merits of birthright citizenship very soon.
And what will happen then?
Well, maybe Justices Thomas and/or Alito and/or Gorsuch will quibble with whether a class should have been certified—or raise some other arcane, pettifogging objection to jurisdiction. Or maybe one of them will receive a revelation from the Angel Moroni that all class actions are unconstitutional.
You never can tell. But I am confident that at least five of the justices will continue to adhere to language of the Fourteenth Amendment and to reject Trump’s interpretation, just as the Supreme Court ruled back in 1898 in the Wong Kim Ark case.
And what will happen after that?
What will happen after that is that large pieces of shit will hit the fan.
Facing MAGA 