The Great Irony Of The Rush To Try The MAL Case Before Election Day

INSIDE: Jack Smith ... Brian Kemp ... Mike Pence
TPM Illustration/Getty Images
Start your day with TPM.
Sign up for the Morning Memo newsletter

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

Damned Either Way

One aspect of the Mar-a-Lago case that hasn’t gotten much attention lately but deserves mentioning: The accommodations and multiple chances over many months for Trump to surrender the documents effectively narrowed the window for a prosecution and created the circumstances we’re in now.

I don’t think that was avoidable, but I also don’t think the government should be punished on both ends. Let me explain.

The government bent over backwards throughout 2021 and deep into 2022 to accommodate Trump and secure the missing classified documents. That all took time. The August 2022 search of Mar-a-Lago came almost 19 months after the end of Trump’s presidency.

I know you’re thinking: For chrissakes, why continue to accommodate Trump?!?! I think that was the right thing to do on the merits, but also practically. If the government hadn’t been deferential and accommodating, they risked getting beat up by judges along the way. It could have been hard to secure search warrants and possibly even subpoenas if the government hadn’t given Trump enough time to demonstrate his bad faith and unfair dealing over the classified documents.

But the effect is one that U.S. District Judge Aileen Cannon and judges on appeal should keep in mind. By doing the proper thing and giving Trump plenty of time to comply with the demand to return documents, the government is now in the position of having to deal with external consequences like: (i) Trump declaring his candidacy for president in 2024 before the government indicted him; (ii) Trump more effectively making the bogus claim that the government is interfering in the election; (iii) the Bragg prosecution in NYC beating the MAL case to the punch and creating new scheduling challenges; and (iv) narrowing the very tight window to bring the MAL case to trial before the 2024 election.

The government, unlike the defense, has to serve multiple masters: its own institutional imperatives, its own desire to win, the defendant’s rights, and the public interest. That makes things more complicated for prosecutors, as they should be. But it also means that prosecutors should be judged on their conduct in total, which in this case means giving them credit for the accommodations they made on the front end and not punishing them for it.

Aileen Cannon Is Gonna Be A Wild Card

The new trial schedule for the Mar-a-Lago prosecution of Trump is not on its face insane. I was hoping for a March or April trial date so that if it gets delayed again (which seems inevitable) there would be plenty of cushion to re-schedule it over the summer and still get it done before Election Day. The May trial date she landed on, though, still provides a little such cushion. So it’s not alarming.

Two things in her pre-trial schedule do jump out:

  1. Giving Trump a month to argue with prosecutors over a protective order over the classified information in the case. The law requires entry of such an order (i.e., it’s not optional), and it shouldn’t take that long for the parties to confer. It feels like she’s rewarding Trump for failing to confer with prosecutors in the first place. But it’s not the end of the world.
  2. On the back end of her schedule, there’s a tight crunch between when she will rule on the handling of classified information at trial and the start of the trial itself. It sets up a situation where any appeals of her ruling will likely delay trial. This is fixable, though, in future schedule adjustments. So again not the end of the world.

All of these little delays and accommodations add up, and the truth is if Cannon keeps making little concessions here and there, none of which on their own give grounds for appeal or provoke public outrage, then she can effectively delay the trial past election in a way that won’t be challengeable – and won’t even provoke much outcry if it’s too late.

The Meadows Texts Keep On Giving

The WaPo highlights a Mark Meadows text that the Jan. 6 committee had access to:

In a text message that has been scrutinized by federal prosecutors, Meadows wrote to a White House lawyer that his son, Atlanta-area attorney Blake Meadows, had been probing possible fraud and had found only a handful of possible votes cast in dead voters’ names, far short of what Trump was alleging. The lawyer teasingly responded that perhaps Meadows’s son could locate the thousands of votes Trump would need to win the election. The text was described by multiple people familiar with the exchange.

Jack Smith Talks To Brian Kemp

The Georgia governor confirmed he’s spoken with Special Counsel Jack Smith’s team as part of its Jan. 6 probe.

It Takes A Village

NYT: DOJ Pours Resources Into Scrutinizing Trump

Put Empower Oversight On Your Radar

The NYT looks into the group that is serving as a pipeline for supposed whistleblowers that Republicans are using to fuel their bogus investigations of Biden.

Put Them On The Spot

Even though they know it won’t pass this Congress, Senate Democrats are eager to get Republicans on the record voting against Supreme Court ethics reform.

Alabama On Collision Course With SCOTUS

GOP lawmakers in Alabama have jammed through another congressional map with a single majority Black district in defiance of the recent Suprme Court ruling.

In Memoriam

On Tueday, President Biden is expected to establish a national monument to Emmett Till and his mother, consisting of three sites in Illinois and Mississippi.

A Mixed Bag

Princeton historian Kevin Kruse on Florida’s new curriculum standards on African American history.

Passing The Buck

The Twitter X Files

Elon Musk attempted to rebrand Twitter as “X.”

It’s Hard Being Mike Pence

Mike Pence’s only chance of winning the GOP nomination in 2024 is if Trump is somehow knocked out of the race. Pence is positioning himself as the heir apparent were some misfortune to befall Trump. He’s Trump without the baggage. Trump with honor, perhaps. But it requires Pence to thread an elephant through the eye of a needle, which is awkward and ends up looking like this:

Like Morning Memo? Let us know!

Latest Morning Memo
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: