Former President Arraigned (Again)

Happy Wednesday! After hearing about an Ecuadorian woman mistakenly declared dead—and returned to the hospital after knocking from inside her coffin at the wake—we think it’s time to bring back safety coffins.

Quick Hits: Today’s Top Stories

• Former President Donald Trump pleaded not guilty Tuesday to 37 federal charges alleging he illegally retained classified documents at his Mar-A-Lago property and conspired to conceal them from federal authorities. The judge presiding over the arraignment ordered Trump not to speak to his aide and alleged co-conspirator in the case, Walt Nauta, regarding the details of the indictment except through attorneys.
• The Consumer Price Index rose 4 percent year-over-year in May, the Bureau of Labor Statistics reported Tuesday, after climbing 4.9 percent in April. Consumer prices on all goods rose 0.1 percent month-over-month. Core inflation, which removes volatile food and energy prices, rose 5.3 percent yearly in May but ticked down from its 5.5 percent yearly increase in April. The inflation numbers—which show the CPI roughly halved from inflation’s recent peak of 9.1 percent last June—were better than expected but still exceed the Federal Reserve’s 2 percent target, though the central bank uses a different inflation index. The Fed meets this week to decide whether it will increase interest rates again, but the central bankers signaled earlier this month they may temporarily pause their rate hike campaign.
• The Office of the Special Counsel (OSC), an independent government watchdog, found White House Press Secretary Karine Jean-Pierre violated the Hatch Act—which bars federal employees from certain political activities—when she used the phrase “mega MAGA Republicans” from the White House Briefing Room podium before the 2022 midterm election. The OSC did not recommend any punishment for Jean-Pierre.
• The Pentagon announced Tuesday it will send Ukraine 15 more Bradley fighting vehicles plus additional anti-aircraft systems, troop carriers, and munitions for long-range missile launchers to replenish Ukrainian losses in the ongoing counteroffensive against Russian troops. It’s the 40th use of the presidential drawdown authority to supply Ukraine with equipment from U.S. stockpiles since the beginning of the invasion. Meanwhile, the Wall Street Journal reported Tuesday the U.S. is also preparing to send Ukraine depleted uranium ammunition rounds to arm Abrams tanks it supplied Kyiv. The rounds are effective at penetrating the armor of Russian tanks at long distances but may carry environmental and long-term health risks.
• U.S. Central Command said Tuesday that 22 service members—who the New York Times reported were U.S. Army Delta Force commandos—were injured in a helicopter “mishap” in northeastern Syria Sunday. Fifteen of those injured in the incident, which CENTCOM said did not involve enemy fire, were evacuated to a U.S. military hospital in Germany for treatment. In April, the Army put a temporary ground stop on all helicopter flights after two crashes killed 12 service members.
• Republican Sen. J.D. Vance of Ohio vowed Tuesday to put a procedural hold on all nominees to the Department of Justice in retaliation for Trump’s indictment. The hold prevents the Senate from confirming nominees by unanimous consent, forcing time-consuming individual votes.
• A Manhattan judge ruled Tuesday that Trump’s recent comments about New York writer E. Jean Carroll during a CNN town hall event could be added to her existing defamation case against him—separate from another case brought by Carroll in which a jury found Trump liable for sexually abusing her in the 1990s and defaming her in his denials. During the CNN event, just a day after the jury’s finding, Trump called Carroll a “wack job” and accused her of fabricating her rape accusation. Carroll originally filed this defamation lawsuit in 2019. 
• Pulitzer Prize-winning fiction author Cormac McCarthy died Tuesday at 89 years old. Known for often graphic depictions of violence, he lent his distinctive voice to diverse genres from neo-western crime novels like No Country For Old Men to dystopian fiction, including The Road—his story of father and son trudging across a post-apocalyptic United States.
• The Las Vegas Golden Knights bested the Florida Panthers in a decisive 9-3 home victory to claim the Stanley Cup Tuesday. Their title in just their sixth year of existence makes them the fastest team to win the Cup in modern history.

Miami Courthouse Blues

Somehow, even a bog-standard arraignment hearing becomes a theater of the absurd when former President Donald Trump is involved. 

Roosters wandering the courthouse grounds? A man dressed in prison stripes arrested for chasing Trump’s motorcade? A protester’s pig head on a pole turning several shades darker as it cooked for hours in the Miami sun?

Check, check, and here’s the photo evidence:

Even without props, this arraignment was remarkable: For the first time in United States history, a former president is facing federal criminal charges. Trump pleaded not guilty to all 37 charges, including 31 Espionage Act violations for willful retention of national defense information, one count of conspiracy to obstruct justice, three counts of concealing or withholding documents in a federal investigation, and two counts of making false statements and plotting to conceal that he still had documents.

Trump rode to the courthouse with body man and co-defendant Walt Nauta, facing six charges of his own for allegedly helping to hide documents. Nauta hadn’t obtained local counsel so didn’t enter a plea—he’ll have another arraignment in two weeks. Law enforcement skipped taking Trump’s headshot—at this point, we recognize him—but fingerprinted both men. Trump’s no stranger to this process after his recent arraignment on state charges in Manhattan for alleged business records fraud to cover up hush money payments.

The Department of Justice recommended both defendants be released without any special conditions, noting they’re unlikely to skip town. But Magistrate Judge John Goodman ordered prosecutors to submit a list of witnesses the defendants shouldn’t discuss the case with except through attorneys. That restriction includes Trump-Nauta discussions, though Goodman noted Trump and Nauta will likely speak daily on other topics, given Nauta’s work for Trump.

Special counsel Jack Smith—who attended Tuesday’s arraignment—promised a “speedy trial” upon indicting Trump. But speed also depends on Trump’s legal team, which could file nigh-endless pre-trial motions in a bid to push the trial date until after primary elections, or even the 2024 general election. And Trump might hope he or another newly elected Republican president could scrap the case.

The trial’s speed also depends on U.S. District Judge Aileen Cannon, assigned to oversee it. A Trump nominee, Cannon issued a quickly overturned ruling in Trump’s favor in a dispute during the Justice Department’s investigation. Her decision fueled speculation of pro-Trump bias—though, as Sarah argued in yesterday’s edition of The Permanent Campaign, “being wrong isn’t the same as lacking impartiality.” Cannon’s not all-powerful—as Sarah noted, many of her decisions will still be subject to appellate review—but she can influence factors like jury selection and instruction and how much time is spent investigating the defense’s likely pre-trial claims of prosecutorial misconduct.

Trump’s legal strategy isn’t yet clear, but his political tactics were on full display last night during a speech at his Bedminster, New Jersey, club. He kicked off with unproven allegations that President Joe Biden directed the prosecution. “A corrupt sitting president had his top political opponent arrested on fake and fabricated charges,” Trump claimed. “Today we witnessed the most evil and heinous abuse of power in the history of our country.”

Next, Trump indulged in a hearty dose of legal misanalysis. He insisted the Presidential Records Act justified his actions, blurring its distinction between “purely private or nonpublic” records and the type of highly classified defense information he’s accused of retaining after leaving office. He also complained that Biden and other political figures had gotten away with retaining classified information—though the president is still under investigation, and other officials cooperated with the National Archives and federal officials to return the documents, while Trump is charged with lying and moving documents to prevent their confiscation. 

Trump also attacked special counsel Smith as a “raging lunatic” and disparaged Smith’s wife before promising widespread retribution after reelection. “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden,” he said. “I will totally obliterate the deep state.”

It’s still unclear how all this is playing to Americans who weren’t in the cheering, jeering crowds outside the Miami courthouse and at his Bedminster event—early polls suggest unswayed Republican support, but the dust hasn’t settled. And some Republican lawmakers have edged away from Trump. “I think it’s obvious what the president did was wrong,” Rep. Don Bacon of Nebraska told NBC. “There’s no way to defend that. And I just think the emperor has no clothes.” Rep. Tim Burchett of Tennessee told CNN he wouldn’t support Trump’s candidacy if the former president is convicted, though added he would “have to read the conviction” to be sure of that stance.

Others leaped to Trump’s defense. “Even if you read the indictment, nowhere does it say ‘and as a result the national security of the United States was harmed in this way,’” Sen. Marco Rubio told Fox News. “The next Republican president is going to be under tremendous pressure to bring charges and indict Joe Biden, his family.” Sen. J.D. Vance pledged to hold up confirmations of DOJ nominations in retaliation for the indictment, and Republican presidential candidate Vivek Ramaswamy appeared outside the courthouse to repeat his promise to pardon Trump if elected, calling on other candidates to join his pledge.

Some Republican presidential contenders have tiptoed toward criticizing Trump since the indictment dropped. Sen. Tim Scott of South Carolina told the Charleston Post and Courier Monday the indictment was “a serious case with serious allegations.” And on Monday former South Carolina Gov. Nikki Haley said “President Trump was incredibly reckless with our national security” after declaring on Friday that “this is not how justice should be pursued in our country.”

Haley still wasn’t quite ready to go all in, though—likely fearing blowback from Trump-loyal primary voters—and softened Trump criticism with other concerns on Tuesday. “I think it would be terrible for the country to have a former president in prison for years because of a documents case,” she said. “That’s something you’d see in a Third World country. I saw that at the United Nations, so I would be inclined in favor of a pardon.”

Congress Spook-ed

At a Senate hearing Tuesday, high-ranking American intelligence officials laid out the case for why they should be trusted with the continued use of a powerful surveillance tool. But Capitol Hill didn’t show much love to the Feds. 

Congress must reauthorize a key section of the Foreign Intelligence Surveillance Act before the end of the year, but agencies reliant on the surveillance authority face growing bipartisan distrust of their stewardship—particularly from Republicans who suspect political targeting.

First passed through the FISA Amendments Act in 2008 and reauthorized under the Obama and Trump administrations, Section 702 is known as the intelligence community’s “crown jewel” of collection authorities. It allows the government to surveil foreign individuals located outside the United States, including by compelling phone companies and internet service providers to provide federal agencies with data—including email, phone, and text records—on targeted individuals.

Leaders of federal law enforcement and intelligence agencies including the FBI, the DOJ, the CIA, and the National Security Agency (NSA) testified to the importance of the surveillance authority at a Senate Judiciary Committee hearing Tuesday. In a written statement, the spooks and G-men declared Section 702 “indispensable,” “critical,” even “elegant.” They argue that the surveillance system has helped disrupt kidnappings, prevent assassination attempts, and respond quickly to cyberattacks on critical infrastructure—59 percent of the president’s daily briefs include information sourced under Section 702, according to Director of National Intelligence Avril Haines.

But Section 702 doesn’t only affect non-citizens—its use often gathers Americans’ data, too. If an American is on the phone with a targeted foreign national, for instance, that call could get caught up in the data collection—and added to an intelligence database officials can then search using an American’s identifying information. “If the government’s intent were to eavesdrop on those Americans, it would have to get a warrant,” Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security program, tells TMD. “But the government certifies to the FISA court that it’s not intending to spy on Americans—that any collection of Americans’ communications is incidental. And it is supposed to minimize any use of those communications under the law.”

But intelligence agencies sometimes abuse their Section 702 privileges. Last month, the public got a rare look at the problem when the Office of the Director of National Intelligence (ODNI) released a memo from the Foreign Intelligence Surveillance Court (FISC), which oversees the surveillance authority. According to FISC, the FBI abused the system more than 278,000 times from 2016 to 2020, including to access information on 133 Black Lives Matter protesters arrested during the summer of 2020 and on 19,000 donors to an unnamed 2020 congressional campaign. Some searches lacked “‘any specific potential connections to terrorist-related activity’ known to those who conducted the queries,” according to FISC.

Some argue Section 702 needs congressional oversight and independent accountability, including warrants before searches of U.S. citizens’ data. “In my view, any reauthorization of this program must include 1) a forensic examination of the program by [the Government Accountability Office], 2) a probable cause-based warrant requirement to access U.S. person data, and 3) a sunset provision reauthorizing the program for no more than five years,” Patrick Eddington, a senior fellow in homeland security and civil liberties at the Cato Institute, tells TMD.

Meanwhile, the intelligence community argues adding warrant requirements would slow collection and overwhelm FISA with warrant requests. “Such an approach would be unworkable,” Matt Olsen, the assistant attorney general for national security at the Department of Justice, argued during the hearing. And some national security analysts agree. The stricter warrant requirements would “eliminate” important tools “that are of particular importance to the timely production of foreign intelligence for U.S. policymakers,” argued George Croner, a senior fellow at the Foreign Policy Research Institute.

But lawmakers don’t trust the intelligence community to fix Section 702 misuse on its own. Republicans are extra suspicious of Section 702 after its use by the FBI in the Trump-Russia investigation—Operation Crossfire Hurricane—as detailed in the Durham report. “Why should we ever trust the FBI and DOJ again to police themselves under FISA when they’ve shown us repeatedly over more than a decade that they cannot be trusted to do so?” Sen. Mike Lee asked Tuesday. 

Lawmakers floated a range of reform options, including codifying agencies’ new internal safeguards, beefing up FISC’s reviews of surveillance activity, and adding probable cause requirements for accessing U.S citizens’ information. The House Intelligence Committee formed a bipartisan working group in March to begin working on legislative reforms to ensure Section 702 is reauthorized, but draft legislation has yet to be released publicly.

FBI leaders acknowledged abuse but pleaded for more time to let internal reforms take root. “With regard to Crossfire Hurricane, what happened there was wholly unacceptable,” Paul Abbate, deputy director of the FBI, told lawmakers yesterday. “We’ve implemented very strong corrective actions.” Changes include requiring analysts to affirmatively opt into U.S. person searches—previously, such searches happened often by default in the system—requiring in-house attorneys to review any batch queries, and a “three-strike” accountability system for non-compliant employees.

And indeed, according to the ODNI 2023 Annual Statistical Transparency report, FBI U.S. person queries declined by 93 percent in 2022 compared to the previous year. A separate FBI audit found the percentage of searches compliant with FISA and FBI rules rose from 82 percent before the internal reforms to 96 percent after.

But for some, it’s too little, too late. “What they decided to do is just more of the same,” Goitein argues to TMD. “More of the same sort of tweaks to internal procedures that they’ve been doing for 15 years, which hasn’t prevented the massive violations we’ve seen.” 

Thanks, Houston! 

We appreciated the Texas-sized welcome from Dispatch members who joined Steve, Jonah, and Sarah in Houston last night—and we hope you enjoyed getting to know each other outside the comments section! 

Worth Your Time

• Cormac McCarthy—reclusive author of The Road, No Country for Old Men, and All The Pretty Horses—died Tuesday. For the New York Times, Dwight Garner reflects on the life of the Pulitzer Prize-winning chronicler of the darkest side of American life. “Mr. McCarthy’s fiction took a dark view of the human condition and was often macabre,” he writes. “He decorated his novels with scalpings, beheadings, arson, rape, incest, necrophilia, and cannibalism. ‘There’s no such thing as life without bloodshed,’ he told the New York Times Magazine in 1992 in a rare interview. ‘I think the notion that the species can be improved in some way, that everyone could live in harmony, is a really dangerous idea.’ His characters were outsiders, like him. He lived quietly and determinately outside the literary mainstream. Mr. McCarthy gave no readings and no blurbs for the jackets of other writers’ books. He never committed journalism or taught writing. He granted only a handful of interviews. In 2007, Mr. McCarthy took part in one of the most unlikely cultural collisions of the new century when he agreed to be interviewed on daytime television by Oprah Winfrey. She had chosen The Road for her book club. ‘I don’t think it’s good for your head,’ he told Ms. Winfrey about being interviewed. ‘You spend a lot of time thinking about how to write a book, you probably shouldn’t be talking about it. You probably should be doing it.’”
• If you played baseball or softball in school, you probably have a soft spot for the quirks of your home field. If you’re 22-year-old David Hrusovsky, you channel that affection into a quest to measure the relative quirkiness of every high school baseball field in the country. “Hrusovsky shuddered at the idea of a wacky field going unremarked upon because it was in the middle of nowhere,” Stephen Nesbitt writes for the Athletic. “So he created a spreadsheet with a row for each high school field in Ohio and opened Google Maps. ‘I just went down a rabbit hole,’ he says. By now, Hrusovsky has cataloged more than 1,800 high school baseball fields and worked his way through a quarter of U.S. states. Once he wraps up a state, he makes infographics to share on social media featuring the strangest fields in each state, pointing out abnormalities and calculating each field’s percentile rank in total area, average outfield length, and outfield variability. He also creates a visual overlaying all fields from a state and another combining them to make the longest and shortest possible fence distance combinations.”

Presented Without Comment

Rolling Stone: Fox News’ Graphic Labels Biden a ‘Wannabe Dictator’ During Trump Speech

Toeing the Company Line

• What’s the deal with Judge Aileen Cannon? What’s the political significance of Trump’s arraignment Tuesday? Where does Chris Christie stand on the issues? Price and Mike join Kevin to discuss all that and more on last night’s Dispatch Live (🔒). Members who missed the conversation can catch a rerun—with video or audio only—by clicking here.
• In the newsletters: Sarah looks at (🔒) the Trump trial from the defense’s point of view, Haley covers GOP lawmakers’ moves to cut funding to the DOJ and FBI, and Nick wonders (🔒) why Trump’s primary opponents are splitting the difference between “nothing to see here” and “threat to the republic” when it comes to criticizing the former president. 
• On the podcasts: On the Remnant, Jonah is joined by Jonathan Adler to talk Trump, RFK Jr., the decline of common good constitutionalism, and the rise of free market environmentalism. 
• On the site: Jonah looks at the whataboutism at play in the GOP’s reaction to the Trump indictment, while Audrey homes in on Republican Senators’ mixed responses to the charges. Plus, Kevin remembers the colorful life of Silvio Berlusconi, Price breaks down the controversy surrounding Judge Cannon, and Scott Winship and Kevin Corinth explain why the Census Bureau’s new inflation measure matters. 

Let Us Know

If Trump is eventually found guilty on federal criminal charges, do you think the next president should pardon him ‘for the good of the country’ à la Gerald Ford and Richard Nixon?