☕️ SLEEPING GIANTS ☙ Thursday, January 18, 2024 ☙ C&C NEWS 🦠

American Cancer Society's 2024 Report raises questions; good news in Trump classified docs case; good news in Trump J6 insurrection case; legal momentum; new OMG exposé video; and more.

Good morning, C&C, it’s Thursday! I make a little progress this morning on our topics checklist with highly-encouraging updates on the Trump cases. In the roundup: The American Cancer Society’s long-awaited annual report manages to say nothing about the last three years; good news in the Mar-a-Lago classified documents case appears in a blockbuster new motion; good news in the Trump J6 insurrection case from an unrelated J6 Supreme Court appeal; Twitter’s lawsuit helps Trump; Trump getting the mo’; and new James O’Keefe exposé video sheds more amusing light on dark shenanigans on the border.

🗞💬 WORLD NEWS AND COMMENTARY 💬🗞

🔥 The American Cancer Society’s 2024 Annual Report came out this week, and it is a sick joke. Again and again, the authors cited cancer data only through 2020, cutting off any more recent analysis and otherwise bypassing the last three years, poof!, gone, vanished, down the memory hole. The Society relied only on pre-2021 data to predict 2024. Even when it did provide comparative data, the report misleadingly used different units for its 2024 estimates versus the figures it charted for pre-2021.

For example, while the report estimated the numbers of projected 2024 cancer victims, it only provided the rates of pre-2021 cancers. There’s no easy way to compare numbers versus rates; so good luck.

Presumably attempting to explain the shocking failure to give any insights into the last three years of cancer, a note on the Society’s website claimed that current cancer data is lagging two to four years. Uh huh. For whatever reason, that claim was omitted from the 2024 Report, which doesn’t even try to explain the omission.

Non-mathematicians have zero chance of comparing figures based on the Report. But Ethical Skeptic, a statistics expert, did crunch the Report’s cancer numbers and concluded it shows a +12.7% excess in cancer deaths over the pre-jab baseline, extending 2023’s excess and showing an excess growth rate of around +3% a year.

Apart from that, there were a couple other buried headlines in the Report. Unsurprisingly, the 80-page report included a woke 20-page insert — one quarter of the whole report — on cancer in LGBTQ+ people — the only demographic subgroup enjoying separate treatment. At first, I rolled my eyes at the obvious pandering, but scanning the LGBT section turned up some fascinating information that really should be more widely known.

Apparently, one’s atypical sexual lifestyle choices have a measurable effect on cancer risk. And it’s not a good effect. Being gay or trans increases the risk of several types of cancer.

After stripping out all the hedged qualifications and implicit apologies, here’s what the 2024 Report said about “Disparities in Cancer Occurrence” between gay/trans people and heterosexuals:

Lesbian and bisexual women likely have a higher risk of breast cancer due to higher prevalence of risk factors, including fewer childbirths, higher alcohol use, and excess body weight. One modeling study found a +10% higher breast cancer risk among bisexual women and +6% higher risk among lesbian women compared to heterosexual women.

Transgender women (biological males) appear to be at an increased cancer risk during hormone treatment compared to cisgender men. Transgender men (biological females) appear to have a higher risk of breast cancer compared to heterosexual men. Although women receiving gender-affirming hormone therapy are at lower risk for prostate cancer than cisgender men, there is some evidence of a higher prevalence of more aggressive disease.

Hormone-taking women are getting more aggressive prostate cancers than men do. How about that — hormone treatments appear to increase cancer risks. But you don’t hear too much about it, now do you?

🔥 I have quite a bit of good news in the Trump Cases to share with you. There are so many case that it can be hard to keep track; I came up with a little quick-reference case caption to help.

CASE: U.S. v. Donald Trump
COMMON NAME: “Mar-a-Lago Raid / Classified Documents Case”
COURT: Southern District of Florida
JUDGE: Aileen Cannon
PROSECUTOR: Special Counsel Jack Smith
TRIAL: May 20, 2024

MOST RECENT ACTIVITY: Two days ago, Trump’s legal team filed a beefy 68-page Motion to Compel Discovery against the government, including a detailed, two-page table of contents. The Motion alleged that the government — i.e. the special counsel — has been playing games with discovery, has withheld documents, has over-redacted, and has not handed over exculpatory evidence.

Takes on the Motion vary. The New York Times’ article about the Motion was headlined, “Trump Signals Plans to Go After Intelligence Community in Documents Case.”

I suppose that’s partly right. But at its core, the Motion is about one of the essential requirements in criminal cases: the government must hand over all “exculpatory” evidence, which is any evidence supporting the accused defendant’s case. If the government fails to do that, the case can be dismissed or a conviction can be overturned on appeal.

One of Trump’s prominent defenses is that his prosecution is really an improper political attack designed to stop him from being elected President. The Motion described extensive “evidence of collusion” between various Biden agencies, and accused the Special Prosecutor of failing to hand over that evidence of collusion. Here’s how Trump’s Motion described it:

Evidence scattered throughout more than 1.2 million pages of discovery reflects close participation in the investigation by NARA and Biden Administration components such as the White House Counsel's Office, as well as senior officials at DOJ and FBI. These revelations are disturbing but not surprising.

To be clear, the record strongly supports the existence of additional evidence of bias and political animus that is central to the defense of this case and must be produced promptly. This includes evidence of collusion between the Office and the White House, DOJ, FBI, and NARA to use the Presidential Records Act (“PRA”) as a law enforcement tool, and to abuse grand jury procedures, in violation of due process, other constitutional rights, and the executive privilege.

As I predicted last week, the new problems in the Fani Willis case in Georgia is already helping Trump’s other cases. Making a prominent appearance in the Motion to Compel was the Fulton County DA’s office and her high-priced “love bunny” Nathan Wade’s amateurish invoices reflecting his startling meetings with White House lawyers:

The Special Counsel’s Office must produce other evidence of bias, including (1) any communications with members, relatives, or associates of the Biden Administration; (2) communications between members of the Biden Administration and the Fulton County District Attorney’s Office during the course of the investigation that led to this case, including but not limited to records relating to meetings involving Nathan Wade that are substantiated by legal invoices appended to congressional filings; and (3) evidence relating to analytic bias harbored by the Intelligence Community.

Evidence of collusion with the Biden White House — if not outright White House coordination — would blow a crater-sized hole in this case, and probably the other cases, too.

It would make Watergate and even Russia Collusion look like rookie efforts.

As you can imagine, with 68 pages of argument, other potential game-changing claims were snuck into the Motion. One stand out was the apparent fact that Trump held a Q-level top security clearance through 2023 — after the FBI’s raid on his Florida home.  Around that time, in 2023, Biden’s administration quietly tried to revoke Trump’s clearance:

On August 15, 2023, the Special Counsel’s Office disclosed an exculpatory Department of Energy memorandum relating to President Trump’s security clearance. Weeks after the Office filed the Indictment, the Energy Department sought to "modify" the inconvenient truth that the agency possessed records showing that President Trump maintained a security clearance.

All information concerning President Trump’s security clearances … is discoverable in light of … charges relating to “unauthorized” and “willful” possession. At minimum, a valid security clearance undercuts that allegation.

In other words, how could Trump have illegally possessed classified materials if he held the highest possible security rating at the time? And then the government’s attempt to surreptitiously erase that inconvenient fact suggests consciousness of guilt.

There’s plenty more. For instance, the Motion complains that Prosecutor Smith’s office redacted thousands of the documents it did hand over, and Trump’s lawyers correctly argued redaction is improper under the rules without a prior enabling court order. So Trump wants unredacted copies, which Smith will not want to turn over.

Court watchers are opining that, at minimum, the discovery battles will result in the trial getting pushed back until after the election. That seems like a fair prediction. For Trump to get a fair trial, he needs the evidence to defend his case. So far, out of all the Trump judges, Judge Cannon has issued the decisions most favorable to Trump, even to the point the liberal media thinks she’s deliberately trying to help the President. For example, from Slate, two days ago:

But that’s not even close to all. Special Prosecutor Smith is also facing some horrible news in his second Trump case.

CASE: U.S. v. Donald Trump
COMMON NAME: “J6 Insurrection Case”
COURT: District of Columbia (DC)
JUDGE:  Tanya Chutkan
PROSECUTOR: Special Counsel Jack Smith
TRIAL: March 4, 2024

MOST RECENT ACTIVITY: Politico ran a revealing story yesterday headlined, “The ‘Sleeping Giant’ Case that Could Upend Jack Smith’s Prosecution of Trump.” Last month the Supreme Court agreed to hear an appeal of a January 6th case styled Joseph W. Fischer v. United States. Formally, the case has nothing to do with Trump; it argues that all January 6th defendants have been unfairly prosecuted for “corruptly obstructing an official proceeding,” because the DOJ incorrectly repurposed a white-collar Sarbanes-Oxley law intended to punish document shredding, like what happened in the Enron case.

So far, the DOJ has used the repurposed financial law to creatively charge over 300 January 6th defendants for Capitol insurrection. Over 150 of those folks were convicted of the reconditioned crime at jury trials, or have voluntarily pleaded guilty to avoid trial.

The nettlesome problem is that the DOJ’s lawyers were possibly too creative, twisting the financial crimes law into a pretzel-like legal weapon against ordinary citizens who entered the Capitol, and also against Trump for allegedly coming up with the riot idea in the first place. Fischer’s lawyers reasonably argued that an earlier part of the very same Sarbanes-Oxley statute specifically defined the word “corruptly,” limiting that word’s statutory definition to actions that result in the “alteration” (as in shredding) of a document,  record, or other object.

Whoops. None of the J6 defendants altered any documents, records, or other objects. They just walked around taking selfies.

If the Supreme Court decides that prosecution under this document shredding law requires proof of alteration of a document,  record, or other object, hundreds of J6 convictions would get tossed, and it would rip the beating heart out of Special Prosecutor Smith’s J6 case against Trump. Politico neatly summarized the effects like this:

The impact of Fischer on the Jan. 6 trial against Trump might not be known until after the Supreme Court wraps up its term in June, at which point it could knock out half of Smith’s counts against Trump. And it could also disrupt the convictions of many Jan. 6 defendants already serving time for their role in the insurrection.

The bare fact the Supreme Court is now considering Fischer means Judge Chutkan must make a difficult decision about her upcoming Trump trial. Should she go forward and hold the trial as scheduled, or push it back to see how the Supreme Court rules on the key claims?

So far, judges in two of the other ongoing January 6th cases have delayed defendants’ sentencing hearings until after the Supreme Court rules on Fischer. We’ll see what Judge Chutkan does.

👨‍⚖️ In other news from the same case, the DC Circuit Court of Appeals just denied an appeal filed by Twitter, which is in the case thanks to a subpoena for Trump’s posts and messages that was originally issued to Twitter without Trump’s knowledge.

The social media giant sued the government over the subpoena, and the suit appears to help Trump so much that one woke appellate judge recently actually asked Twitter’s lawyers if they were trying to “cozy up” to the President. Yesterday’s denial of the Twitter appeal wasn’t bad news for two reasons. First, the denial cleared the way for Twitter to petition the case to the Supreme Court. The case may have legs since it involves pretty serious issues about Presidential Executive Privilege.

Second, the denial included a separate opinion written by the DC Circuit’s minority of five Republican judges, who tore Special Prosecutor Smith a new one. They also heavily criticized their fellow judges for ignoring Presidential privilege. The dissenting opinion has no legal effect, but it strongly suggests how a conservative Supreme Court might be likely to view the case.

Which brings us to the momentum issue.

👨‍⚖️ As an experienced litigator, I’ve learned that, like football games, lawsuits have momentum. The momentum’s hazy outlines become evident not just in the way judges rule, but maybe more so in how the judges talk about the case during hearings. The momentum ponderously swings along the path of how the evidence develops, what mistakes the other side makes, and possibly involves a thousand other intangible elements that good lawyers develop a kind of spider sense about.

Whenever I get involved in a new lawsuit, I usually feel anxious or unsatisfied until I can finally sense the momentum shifting in my client’s direction, and then I can start to relax and enjoy the case. Less often, I sometimes feel the momentum swaying against my client, and then I move fast, trying to change something up and get the momentum back.

All that to say, I’m having that tingly sensation telling me the momentum either has shifted or is shifting toward Trump in all his cases, such as these recent developments plus the way Fani Willis’s Georgia Racketeering case is melting down. Taken all together, it’s all extremely encouraging. Except, of course, to the left. From the Hill, yesterday:

Uh-oh. All the headlines about the Fulton County Racketeering case similarly suggest the Left thinks the claims against DA Fani Willis are deeply problematic. The embattled District Attorney didn’t help herself any last weekend blaming the criticism on racism.

How do you think you would you feel if all these Trump lawsuits wind up badly backfiring on the government? That outcome is looking more and more possible.

🔥 James O'Keefe published his latest exposé video on the border problems. This time his team trailed one of the migrant buses and discovered another link in the underground railroad, not to mention more surly, resentful “charity workers” who lie and refuse to answer questions, since the whole thing is totally legit.

By the way, I’m really enjoying how O’Keefe is developing a sense of humor in his reporting, which makes several appearances in this current video clip. To keep people’s eyes on the prize, it’s not enough to just tell them what’s happening. And while it helps a lot to entertain folks, it’s even more important to avoid being so relentlessly negative it creates psychological avoidance.

Enjoy the new OMG report! And take heart; there are signs all the attention on the border is starting to turn the giant cruise ship of disaster around. If you get a chance today, tell your congressman: fix our border first.

Have a terrific Thursday! You won’t need an undercover car to follow the Coffee & Covid bus. Just come right back here tomorrow morning for more.

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