The Weekend Wrap - August 13, 2023

Jack Smith wants to start 2024 with a bang

Welcome to The Weekend Wrap. Here are the highlights from the past week:

Trump cases

1) D.C. Jan 6 Case

Speedy Trial – Special Counsel Jack Smith has proposed that jury selection begin on December 11 and the trial on January 2, 2024, arguing this would preserve “the public’s strong interest in a speedy trial.”  He predicted the government’s case would take four to six weeks.

If his request is granted that would put the D.C. case ahead of the New York state case and Florida federal case – and Trump would be on trial during the Iowa caucuses and first presidential primaries. Judge Chutkan will likely set a trial date at a status conference set for August 28.

Judge Tanya Chutkan (AFP - Getty Images)

Chesebro memo - A story in the New York Times revealed a copy of what prosecutors call the “fraudulent elector memo.” Trump attorney Kenneth Chesebro, a/k/a “Co-Conspirator #5,” prepared the memo on December 6, 2020. It provided a detailed roadmap for what became known as the fake electors scheme.

As described in paragraph 54 of the indictment, the memo “suggested that the Defendant's electors in six purportedly contested states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin) should meet and mimic as best as possible the actions of the legitimate Biden electors, and that on January 6, the Vice President should open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president-elect.”

This memo is a key piece of evidence prosecutors believe ultimately led to the attempted execution of Chesebro’s scheme (although the plan was expanded to include New Mexico as well). We knew other details about that scheme from the January 6 Committee investigation and other sources, but this memo had not previously come to light.

Chesebro clearly had some doubts about his plan. He noted: “I recognize that what I suggest is a bold, controversial strategy.” He also wrote, “I’m not necessarily advising this course of action, and the Vice President need not make a decision on how to proceed until January 6.”

The legal term for this language is “CYA” – although if you end up being labeled a co-conspirator in a criminal case, it’s probably a good sign that your A wasn’t adequately C’d.

Protective Order - Judge Chutkan held a hearing on Friday on the government’s motion for a protective order covering the materials provided in discovery. Prosecutors are worried that Trump will use discovery materials, such as transcripts of interviews or grand jury testimony, to attack witnesses or try to influence public opinion and the jury pool. Trump protested that the proposed limitations infringe on his First Amendment rights.

Judge Chutkan did not agree to everything prosecutors wanted but did agree to enter a protective order governing particularly sensitive materials, including witness testimony. She impressed on Trump’s attorneys that Trump, like any criminal defendant, must abide by his conditions of release and that his First Amendment rights are not absolute. The purpose of discovery, she noted, is to help him prepare for trial, not to help him wage a political campaign.

“I caution you and your client to take special care in your public statements about this case,” she told Trump lawyer John Lauro. “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”

2) Florida Mar-a-Lago Documents Case

Not a good sign - There was a worrisome development in the Florida case. During a skirmish over whether a lawyer for defendant Walt Nauta should be disqualified over a conflict of interest (he also represents a number of potential witnesses), prosecutors noted they were using grand juries in both D.C. and Florida to investigate the Mar-a-Lago documents case and related crimes.

This led Judge Cannon, apparently on her own initiative, to order prosecutors to address the “legal propriety” of using a grand jury outside of Florida for part of the ongoing investigation.

When Jack Smith first began investigating the Mar-a-Lago case, he used a grand jury in D.C. This led many to speculate that the case might be indicted there. But shortly before the indictment he began using a grand jury in Florida, where the case ultimately was charged.

There’s nothing improper about this.  A grand jury may properly investigate any crimes over which it potentially has venue, meaning at least some portion of the crime took place in that district. Venue for many of the crimes related to the Mar-a-Lago documents could be proper in either D.C. or Florida. Many of the alleged criminal acts took place in Florida, but the documents originally were taken from D.C. and the investigations the defendants are charged with obstructing were based in D.C.

It's also not uncommon or improper for prosecutors to transfer evidence from one grand jury to another, if they decide another district is the better venue for the charges.

If Smith is still using the D.C. grand jury for the Mar-a-Lago case, it’s probably to investigate potential perjury or obstruction related to the earlier phases of the investigation that took place there. 

There’s nothing suspicious about Smith using both grand juries. But the fact that Judge Cannon went out of her way to order prosecutors to explain is worrisome. It could just be a sign of her lack of experience – or it could be that she is looking for ways to make trouble for the prosecutors.

Trump wants his own SCIF - The parties in Florida are still wrangling over the production and review of all the classified material that will be evidence in the case. Last week Trump asked Judge Cannon to order that the SCIF that existed in Mar-a-Lago when Trump was president be re-instated so he could use that facility to review classified information with his counsel. (A SCIF – Sensitive Compartmented Information Facility – is a secure facility used to review sensitive classified information.)

The government is proposing Trump and his counsel use existing SCIF’s in the Florida federal courthouse to review classified materials. Trump’s attorneys argued that given the security logistics, Secret Service escort, and other expenses involved every time Trump has to travel, it would actually be faster and cheaper for the government to simply re-instate the SCIF at Mar-a-Lago and let them use that.

Smith’s prosecutors oppose the request. It has generated a lot of outrage on the left. Critics argue Trump is asking for special treatment, with the added twist that he would be reviewing the classified documents at the “scene of the crime.” Opponents claim that setting up the SCIF would take significant time and that this is simply another delaying tactic. Finally, critics have argued that a federal judge has no authority to order the government to set up a SCIF.

But I’m not sure Trump’s proposal is such a bad idea. It really shouldn’t take too long  – the Secret Service even sets up mobile, temporary SCIFs when a president travels, so it can be done quickly when necessary. The space at Mar-a-Lago that was used for a more permanent SCIF when Trump was president presumably could be converted back to that use pretty quickly. It could be guarded by the Secret Service to maintain the integrity of the classified materials.

Most important, agreeing to Trump’s request would help move the case along. It would eliminate a defense argument that it needs further trial delays because its request was denied and it is taking so much time to review the discovery. If Smith can give Trump what he wants here, while still properly safeguarding the classified information, it might be the smart move. Even if the judge can’t order it, prosecutors might consider agreeing to the proposal.

Sure it’s unprecedented, but so is this entire case.

3) Georgia State Case

We continue to wait on the Georgia state indictments. The latest stories are that they are really, really, REALLY likely to be issued this week, probably Tuesday, we mean it this time, honest, no fooling. Rumors continue to be that there may be as many as twelve defendants, including Trump and some of his attorneys, and that the charges may include state RICO charges.

4) New York State Case

Not much news last week out of the New York state hush money case (remember that one?)

Trump Defenses

As I mentioned last week, we are starting to hear a lot of commentary about Trump’s potential defenses to the January 6 indictment.

I’ll be writing more about some of these defenses in the weeks ahead, but here are some quick thoughts about a few of the most prominent ones:

Lack of intent: I wrote this post last week about why the claim that Trump really believed he won the election will not be an effective defense:

Advice of counsel: A variation on the lack of intent is the advice of counsel defense – the idea that Trump lacked criminal intent because his lawyers told him what he was doing was lawful. There are going to be several problems with this defense:

• The attorney had to actually be acting as Trump’s lawyer when they gave the advice, not acting as a lawyer for the campaign or Justice Department or in a non-legal capacity. That won’t be the case for at least some of the advisors.

• The defense doesn’t apply if your lawyers are also your criminal co-conspirators, as is alleged here. You don’t get to go criming with people who happen to be lawyers and then claim their advice protects you.

• The reliance has to be in good faith – if a dozen lawyers are telling you something is illegal, you can’t shop around until you find the one lawyer who will tell you what you want to hear and then claim you had no criminal intent.

• Raising this defense would require Trump to waive attorney-client privilege, which would mean prosecutors could then discover and use all communications from that attorney. It’s very unlikely he wants to do that.

First Amendment: Even Bill Barr has been going around on cable news trashing the idea that this indictment infringes Trump’s First Amendment rights. There’s no First Amendment protection for statements made in furtherance of criminal activity. After all, almost every fraud or conspiracy will involve some speaking. Trump is being prosecuted for his actions and conspiratorial agreements, not for what he said.

The only serious First Amendment issue might have arisen if prosecutors had based a charge of inciting an insurrection directly on Trump’s January 6 speech at the ellipse, as recommended by the House January 6 Committee. But Smith, I think wisely, chose to sidestep that issue by not bringing that charge.

I view all of these as more political defenses than legal ones. Trump will continue to argue these in public to appease his base and paint himself as a victim of political prosecutors.

At trial, however, it will be much more difficult for him to rely on these defenses and get them before a jury. And it’s hard to see how he could raise a defense based on his good-faith intent or advice of counsel without taking the stand. I can’t imagine he will do that — although I think the prosecutors would love it and he would become the government’s star witness.

The Twitter Files

We learned last week that back in January Jack Smith’s office obtained a search warrant directing The Company Formerly Known as Twitter to produce records related to Donald Trump’s account. It also obtained a nondisclosure order prohibiting Twitter from telling Trump about the warrant. The judge found there was probable cause to search Trump’s account for evidence of criminal activity. It also found that the nondisclosure order was justified because disclosing the warrant to Trump "would seriously jeopardize the ongoing investigation" by giving him "an opportunity to destroy evidence, change patterns of behavior, [or] notify confederates."

Twitter dragged its feet and failed to produce the records on time, although it did ultimately turn them over. It also filed a motion objecting to the nondisclosure order, claiming Twitter had a First Amendment right to notify Trump about the warrant. The district court rejected these claims, found Twitter in contempt, and fined it $350,000. The D.C. Circuit Court of Appeals upheld the contempt citation and the fine and just unsealed part of the record, which is how we learned about all this.

Twitter getting smacked down and fined for failing to cooperate in the criminal investigation of its most famous user is worthy of some schadenfreude. But the really intriguing part of the story is what Smith might have found as a result of this previously-unknown warrant. Prosecutors presumably were looking for records not of public Tweets, but for things like direct messages and drafts. Trump famously does not use email – but did he DM people on Twitter? If so, those records could be a real gold mine.

The fact that the warrant was issued does not, of course, mean that prosecutors found anything useful. We will have to wait and see.

Benghazi! – I mean, Hunter Biden

I discussed previously how Hunter Biden’s plea deal had broken down, but predicted the lawyers would probably work it out and be back before the judge soon.

That prediction was wrong. Apparently the attorneys are at an impasse and now believe the case will not be resolved without a trial.

In response, Attorney General Merrick Garland has named the Trump-appointed U.S. Attorney who is handling the investigation, David Weiss, as a special counsel. This was at Weiss’s request, and will give him an extra layer of independence from the Biden Justice Department. It will also give him the ability to file charges outside his home district of Delaware, which appears to be his plan.

It’s hard to imagine the case amounting to much. A few weeks ago Weiss was willing to resolve the five-year-old investigation with guilty pleas to a couple of misdemeanors. This seems like Garland recognizing the political whirlwinds surrounding the case, not a sign that there is something far more serious on the horizon.

Of course, the appointment did not help defuse the controversy. After previously clamoring for Weiss to be named a special counsel, Republicans immediately began complaining that Garland doing what they wanted was all part of a plan to torpedo the investigation and shield it from Congressional scrutiny.

Remember: no matter what happens, it’s part of the cover-up. As I said last time, Hunter Biden is the new Benghazi.

SBF Locked Up

I mentioned a couple of weeks ago that prosecutors were seeking to have Sam Bankman-Fried, the founder of the collapsed crypto exchange FTX, locked up pending his trial. Last week the judge granted that motion and revoked SBF’s bail. Prosecutors argued that SBF, who had been released on home detention at his parents’ house, was abusing the terms of his pretrial release by trying to intimidate or discredit witnesses and influence the potential jury pool through the media. The judge agreed.

SBF will now have to prepare for his October trial from a jail cell.