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Elie Mystal on the Four Investigations into Trump & Why Progressives Should Push to Expand the Court

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A federal judge on Monday agreed with Donald Trump’s lawyers to appoint an independent arbiter known as a special master to review top-secret documents seized during an FBI raid on his Mar-a-Lago estate. U.S. District Court Judge Aileen Cannon, who was nominated by Trump while he was president, ordered the Justice Department to stop reviewing the documents. The move delays the federal investigation into whether he violated the Espionage Act and other federal laws. Elie Mystal, justice correspondent for The Nation, weighs in on the multiple open investigations of Trump and whether the media’s focus on them are actually helping his reelection for president. His latest article is titled “Trump Is a Criminal—Will Any of These 4 Investigations Snare Him?”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

We turn now to look at a possible delay, by months or even years, of the FBI’s investigation into whether former President Donald Trump violated the Espionage Act and presidential records laws, and whether he obstructed justice to cover up those crimes. The delay comes after a federal judge agreed Monday to appoint an independent arbiter known as a “special master” to review whether FBI agents properly seized thousands of classified documents from Trump’s Mar-a-Lago home on August 8th. U.S. District Court Judge Aileen Cannon agreed with Trump’s lawyers that the Justice Department must halt its review of the documents recovered by agents, many of which were marked “Top Secret.” The Washington Post reports some of the documents were so sensitive that even many senior national security officials would not normally have access to them. Judge Cannon was nominated to the U.S. District Court for the Southern District of Florida in 2020 by then-President Donald Trump. She was confirmed nine days after Trump lost the 2020 election.

On Tuesday, former Attorney General William Barr told Fox News the Justice Department should appeal Judge Cannon’s decision.

WILLIAM BARR: The opinion, I think, was wrong, and I think the government should appeal it. It’s deeply flawed in a number of ways. I don’t think the appointment of a special master is going to hold up. But even if it does, I don’t see it fundamentally changing the trajectory. In other words, I don’t think it changes the ball game so much as maybe we’ll have a rain delay for a couple of innings.

AMY GOODMAN: This comes as the House Select Committee to Investigate the January 6th Attack on the United States Capitol is set to resume hearings later this month.

For more, we’re joined by Elie Mystal, The Nation's justice correspondent, whose recent piece looking this and several other investigations into Trump is headlined “Trump Is a Criminal—Will Any of These 4 Investigations Snare Him?” He's also author of the best-selling book Allow Me to Retort: A Black Guy’s Guide to the Constitution.

Elie, welcome back to Democracy Now! Why don’t you start off by laying out these four cases or investigations into Trump? Because I think many people — there’s so much that’s happening, it’s very hard for people to figure out what is going on right now, and maybe even why he hasn’t been charged.

ELIE MYSTAL: OK, Amy. Let’s do this lightning round style. Case number one is the one that you’ve been talking about. It’s the espionage case. Trump stole documents, top-secret documents, classified documents, from the National Archives, put them in his basement. That is straight-up illegal. The Justice Department is investigating him for that theft. Doesn’t matter if he declassified the documents or not, because he had sensitive national defense information. We’ll see how that goes, now that he’s gotten it in front of his handpicked justices who are biased for him, right? So, that’s bucket number one.

Bucket number two is the one that we’ve been talking about since January 6, 2020. It’s the insurrection that he probably should be held responsible for, if not leading, certainly encouraging. Right? We have the January 6th committee that’s investigating that, but we also know that the previous hearings over the summer from the January 6th select committee kind of lit a fire under the Department of Justice, pointed them in some new directions. We know that the testimony of former White House aide Cassidy Hutchinson was particularly explosive. So, the Justice Department is arguably continuing investigation into Trump’s role in January 6 and all the little tendrils of that, right? There’s the actual coup and insurrection. There’s the fake electors plot. There’s the obstruction of justice. There’s a lot of things wrapped up in January 6th.

But those two buckets are at the federal level. At the state level, he has more legal exposure. There’s the New York state investigation that is led by Attorney General — state Attorney General Tish James that’s looking into financial crimes and misdeeds from Trump Organization. There are allegations dating back to Michael Cohen, Trump’s former fixer, about when Trump devaluing assets when it comes time to pay taxes and inflating assets when it comes time to get a loan. So, that investigation is ongoing.

And then, finally, we have the state of Georgia investigation, led by Fulton County District Attorney Fani Willis. She is looking into Trump’s apparent attempt at election fraud and obstruction of justice in Georgia specifically. We’ve all heard the incriminating phone call, Donald Trump asking Secretary of State Brad Raffensperger in Georgia to find him 11,000 votes. We know Lindsey Graham has been asked to testify. We also know that the judicial system is protecting Lindsey Graham, as well. But we know that investigation is ongoing. And as you pointed out this morning, there’s even new evidence implicating Sidney Powell in some stuff. So, that, I think, is still maybe the most likely thing to land Trump in serious legal trouble, just because we literally already have him on tape committing the election crime, if I can say it that way.

But those are the four kind of main ones — that I know about. Let’s never forget that, you know, Trump commits crime like other people breathe, and so who knows what else is lying just beneath the surface? Those are the four that are kind of most furthest along in terms of investigating the former president.

JUAN GONZÁLEZ: But, Elie, isn’t there a danger because, as you mentioned, all of these different investigations, one, that it feeds into a narrative by many Trump supporters, and even some who may not be that supportive of him, that the government is out to get him? And also, isn’t the issue that all of these investigations and, before that, the two impeachments, they keep Trump in the news, so that he’s constantly the story, whether or not he’s actually officially running for office, and the danger of a backfire, come the next presidential election, about these investigations, that all operate at a snail’s pace because of the ability of anyone with a lot of money to gum up the works in terms of legal challenges? Your thoughts about the potential backfire of so much effort but no real indictments yet?

ELIE MYSTAL: Yeah, Juan, well, number one, I don’t really concern myself what cultists say in defense of their cult. Right? Like, I get that the cult of personality that is Donald Trump creates various false narratives about what’s happening and the persecution that’s happening to their dear leader. And they’re all wrong. They’re all dumb and wrong, and so I don’t worry myself with what dumb and wrong people think about these investigations, I mean, because we can’t, because we can’t live at their speed. Right? We have to, like, do what is right regardless of what the cultists say, right?

In terms of doing what is right, that’s kind of how I get to your second point. Yes, there is a lot of investigations going on, and, yes, that creates almost a spigot of potential criminality, but what’s the alternative? The problem here is that Trump potentially committed many, many, many crimes. And allowing him to get off scot-free for any of the crimes, much less all of the crimes, is the bigger danger to democracy and to kind of faith in American government. If a person like Trump can get away with stealing an election in Georgia and committing financial crimes in New York and leading an insurrection and putting forward fake electors and violating the Espionage Act, if he can get away with all of that, then we are not a nation of laws. We are a nation of power. We are a nation that exists on the whims of the powerful people and their judges. So it’s almost like we have to pick which nation we want to live in. If we want to live in a nation of laws, then we have to — it’s not an option — then we have to prosecute Trump for the crimes he appears to have committed. There is no other option that still involves us living in a nation under the rule of law.

JUAN GONZÁLEZ: And speaking of a nation under the rule of law, in your book, Allow Me to Retort, you write about the structural problems of our Constitution that, to you, raise serious questions about the ability of our nation to function as a democracy. I’m wondering if you could talk about some of those structural issues.

ELIE MYSTAL: Well, I think, look at what the Trump judge did in the espionage case, right? Look at Aileen Cannon. The idea that judges are apolitical, impartial arbiters is wrong. It’s always been wrong. It’s always been a legal fiction. We know that judges are political actors. If they weren’t, you wouldn’t have wildly different judges nominated by each of the different political parties, right? We know they’re not impartial. We just haven’t been told that, because, for the most part, their bias and their prejudice has been towards white, cis, hetero, male people, right? And so we act like that’s not a bias. But that is a bias. And that’s kind of baked into the system.

And these people are also careerists. People keep saying, like, “Oh, the point of lifetime appointments is that once a judge is in, they don’t have to concern themselves with the political machinations of the country.” We know that not to be true, right? Judge Aileen Cannon is a district court judge now. Does she want to be a circuit court judge someday? Does she want to be on the 11th Circuit Court of Appeals someday? Does she want to go on the Supreme Court someday? Well, if she does, which wouldn’t be surprising to me, well, making decisions in concert with the Republican agenda, especially given Trump’s, again, Svengali-like hold over the Republican Party, seems to make sense.

So, when you look at the structure of our judicial system, it is still primarily based on people, and those people can be biased. Those people can be prejudiced. Those people can be wrong. And we don’t do nearly enough within our system to hold our judges accountable, right? There’s no — they’re appointed for life. There’s no way to remove them, absent impeachment. Like, these are real problems that we have, when you run into clear cases of bias or unethical behavior, as I believe we’re seeing with Judge Cannon.

And look, Juan, let’s remember this. I am suggesting that Cannon is biased and corrupt, based on her opinion, which has no basis in law. The other option is that she has no idea what she’s doing. And I tend to give her the benefit of the doubt that she actually knows what she’s doing and has decided to help Trump, as opposed to, to me, what’s worse, that she truly, kind of honestly doesn’t understand how law works. Like, I don’t think she’s dumb. I think she is biased and prejudiced towards Trump. And the reason why I think that is that she said it in her opinion. She literally wrote that she was treating Trump differently because he was the former president, which is a kind of legal jargony way of saying, look, Juan, if you and I or Amy goes into the National Archives and steals documents, I promise you Judge Aileen Cannon is not slowing down the investigation against us for criminal liability in violations of the Espionage Act.

AMY GOODMAN: So, let’s talk about the latest news that NBC is reporting, that among those very classified documents are perhaps nuclear secrets of another nuclear-armed country, just among the classified documents. But The New York Times reports, in her Senate questionnaire — this is Judge Cannon — described herself as having been a member of the conservative Federalist Society since 2005. And you’ve done a lot of investigation into this and the power of Leonard Leo, now getting $1.6 billion to start a new organization, and how they have populated the courts, not just her court, but if the Department of Justice appeals this to the 11th Court of Appeals, that court, and then, of course, to the Supreme Court. Trump alone got three Federalist Society judges on the — justices on the Supreme Court. And in that answer, Elie, if you can talk about your call for adding more people to the Supreme Court?

ELIE MYSTAL: Yeah. So, let’s start with Leo. If you’re keeping tabs on what the new $1.6 billion man is doing, one of the first things he’s done with the money is file an amicus brief for the upcoming Supreme Court case, advancing this bonkers theory of an independent state legislature that is allowed to change election laws without regard to their own state constitution. It’s the biggest upcoming case in the Supreme Court docket this year, because it, essentially, will allow — could allow — state legislatures, red state legislatures, to simply throw away votes they don’t like. That’s what Leonard Leo is doing with his money.

That’s what the Federalist Society is about. That’s their kind of modus operandi, to infect democracy and to take it away from the people and put it behind closed doors. Aileen Cannon, obviously a part of that from her whole career. She wouldn’t have been appointed by Trump, who doesn’t know a lot about judges — he kind of outsourced his judicial picks to the Federalist Society. She wouldn’t have been appointed by Trump without Federalist Society approval. So, that’s on the one hand.

As you say, Amy, if the Department of Justice appeals this ruling, which they should, because it’s — again, there’s no basis in law for it, you go to the 11th Circuit, which is stacked with Trump judges. Then you go back to the Supreme Court, which also is stacked with Republican justices. We’ve seen what they’ve been willing to do, willing to do to precedent and the rule of law, just last term. So there are no good options there.

And that’s something that I think liberals and progressives need to understand more generally. There is nothing that you can do to get around six conservative justices on the Supreme Court and a Republican justice — judges stacked up and down through the judicial system. We’ve already seen, with the Biden administration, they will block executive orders. They will issue stays and injunctions against moves made by Biden and this Congress. And they will seek to overturn laws passed by this Congress.

So, we saw last term, the Clean Air Act, yeah, that doesn’t really matter to the conservatives on the Supreme Court when it comes to regulating the environmental pollutants in our air. The Supreme Court just basically ignored the Clean Air Act. And that’s what they’re going to do again if — if, by some miracle, Democrats hold onto the House — they’ll probably keep the Senate, because the Republicans have nominated some terrible candidates — and they pass a nationwide abortion rights protection, the Supreme Court will overturn that before breakfast. Like, as long as you let the Republicans control the Supreme Court, there is no progressive agenda. There is no Democratic agenda that gets through these conservatives on the Supreme Court.

The only rational play — this is beyond politics, this is beyond reform — the only rational play for any Democratic administration, for any Democratic candidate who wants to get anything done for the next 30 years, is to add justices to the Supreme Court. Now, I have a lot of actual reform reasons why we should add justices. In my book, I talk about how, beyond the politics of it, more justices are better. It leads to more moderate decisions, because it’s harder to get a majority when you have more people. It leads to more diversity, more diversity of thought, and to say nothing of racial, ethnic and gender diversity. There are lots of good reform reasons to add more justices to the Supreme Court.

But as a practical political matter, if Democrats want their agenda to be upheld, they need to counteract the power of conservative justices that have been sent in there specifically to put a stop to progress — to not just the progressive agenda in terms of left-right, a stop to progress, to bring us back to — as Sam Alito did in the Dobbs decision overturning Roe v. Wade, bring us back to a time when women were not considered full citizens and full people. Like, that is the goal of the conservatives on the Supreme Court. And as long as we let them have power, that is what they will be doing.

JUAN GONZÁLEZ: Elie, I wanted to ask you — we only have about a minute or two, but voting rights. Considering all of the state efforts in the past few years to limit and restrict voting across the country, your concerns about what’s going to happen in the upcoming election and, of course, in the presidential election in a couple of years, in terms of the ability of the majority of the American people to elect representatives that represent them?

ELIE MYSTAL: Yeah. So, this goes back to Chief Justice John Roberts on the Supreme Court. John Roberts has been an enemy of voting rights, and specifically an enemy of Black people voting, for his entire career. His first real job out of school was to work against the 1982 amendments to the Voting Rights Act. He gutted Section 5 of the Voting Rights Act in 2013’s Shelby County v. Holder. And he was part of the majority that gutted Section 2 of the Voting Rights Act in 2021’s Brnovich v. Arizona. John Roberts is the real bad guy here when it comes to voting.

Now, how does that play out on the ground? Well, one thing that I have learned — you know, my mother was born in 1950 in Mississippi, so my people go back a long way on this. One thing I’ve learned in my travels is that when you tell people they can’t vote, that makes them want to vote more. And so, there is the opportunity, the possibility, that all of the efforts to suppress the vote backfire on people who have been historically challenged in their ability to vote. It could lead to a higher — more dedication to go out and have that right, that people are — that Republicans are so desperately trying to take away.

But that’s where this critical Supreme Court case, Moore v. Harper, that I’ve been talking about, comes into play, this independent state legislature theory, this Leonard Leo ploy, that would allow states to throw away votes that have already been duly cast and counted. So, Republicans are both trying to suppress the vote and, if that doesn’t work, trying to put themselves in a position where they can overturn the vote and throw away votes they don’t like. We are in a crisis of democracy. We are not approaching a constitutional crisis; the crisis is upon us. And the question is: What do we do about it?

AMY GOODMAN: Elie Mystal, we’re going to have you back on to talk more about what we do about it and your book, The Nation's justice correspondent, author of the best-selling book, Allow Me to Retort: A Black Guy's Guide to the Constitution.

Next up, we continue to remember the life and legacy of author, activist Barbara Ehrenreich. Back in 30 seconds.

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