The Weekend Wrap - August 20, 2023
The Weekend Wrap - August 20, 2023
Trump goes 4 for 4 on indictments
Welcome to the Weekend Wrap! Here are last week’s highlights:
Trump Prosecutions
Georgia State Case
The big news last week was the long-awaited Georgia indictment of Donald Trump and eighteen other defendants. The indictment charges a sprawling, multi-state RICO conspiracy. It’s the first case to charge those in Trump’s inner circle who were involved in the efforts to overturn the 2020 election, including attorneys Rudy Giuliani and Sidney Powell and his chief of staff Mark Meadows.
If you missed it last week, you can find my breakdown of the indictment here:
Fulton County District Attorney Fani Willis has said she would like to try all nineteen defendants together and go to trial on March 4. With that number of defendants and all the pretrial motions and other maneuvering that will take place, both of those seem extremely unlikely.
Trump and the other defendants have until Friday to turn themselves in for booking and processing at Atlanta’s Fulton County jail. That promises to be an experience Trump will not enjoy.
Removal – Speaking of pretrial maneuvering, Meadows has already filed a motion to remove the Georgia state prosecution to federal court. The federal removal statute allows an “officer of the United States” who is prosecuted in state court to have the case transferred to federal court if it arose from the exercise of his or her official duties.
The removal statute is designed to protect federal officials carrying out federal policy from prosecution by state authorities who may not like that policy. The charges remain the same and the case would still be handled by state prosecutors; the theory is that being in the federal court system will provide some degree of insulation for federal officials from potentially inappropriate state actions.
Trump is widely expected to seek removal as well. An additional reason he might prefer federal court is that the jury pool drawn from the entire federal Northern District of Georgia likely will be more sympathetic than that in heavily Democratic Fulton County. In federal court Trump also would have a shot at drawing a judge he appointed to the bench, as he did in Florida.
Trump tried this same move in his New York state case. A federal judge in New York rejected his removal petition, finding that the hush money payoffs to Stormy Daniels and the related false business records charges that form the basis of that indictment had nothing to do with his official duties as president.
Trump arguably has a stronger case for removal in Georgia. This time at least he actually was president when he engaged in the relevant acts. He will claim he was exercising his official duties to ensure the integrity of the election. Prosecutors will respond, in effect, that engaging in a coup typically is not considered part of a president’s job description.
In response to Meadows’ removal petition, a federal judge in Georgia has ordered a hearing on August 28. A response from Willis is due next Wednesday.
Even if the case ends up being tried in federal court, it is still a state law prosecution. Among other things, that means Trump still could not pardon himself if he wins re-election.
The Sentence for RICO – You might recall that in my post about the Georgia indictment I noted there was some uncertainty about whether Georgia RICO really carries a five-year mandatory minimum sentence, as some were claiming. It turns out the answer is no. The statute provides that a defendant convicted of RICO “shall be punished by not less than five nor more than 20 years’ imprisonment.” But despite that phrasing, Georgia law still gives a judge discretion to suspend that sentence and put the defendant on probation.
It's still a hefty potential penalty. But the RICO charge does not mean Trump must be sentenced to prison if convicted – although he certainly could be.
New York State Case
On Monday Juan Merchan, the New York state judge overseeing Trump’s hush money case, rejected Trump’s request that he recuse himself. Trump had argued the judge should be disqualified based on a $15 donation he made to the Biden campaign in 2020 and two even smaller donations to political organizations that oppose Republicans. Trump’s lawyers also argued the judge’s adult daughter stood to profit from the case because she works for a marketing agency that works for Democrats.
The judge found there was no reason for the public to question his impartiality and that the public interest would not be served by him stepping aside. A judicial ethics board had also issued a written opinion saying there was no basis for recusal. This is clearly correct. If minor things like this were a basis for recusal, no judge who belonged to one political party could ever preside over a case involving a public official of the other party.
The judge’s ruling was not a surprise. This long-shot move by Trump’s attorneys was probably designed less to win and more to shape public opinion and falsely suggest the judge is biased.
D.C. Federal Jan 6 Case
The next date coming up in the D.C. federal case charging Trump in the efforts to overturn the election is a status hearing August 28, a week from Monday. That hearing should include setting a motions schedule and trial date. Special counsel Jack Smith has proposed starting the trial next January. Last week Trump’s lawyers filed a response proposing that the trial take place in April . . . of 2026.
This is not a serious request. I’m pretty sure Judge Chutkan is not going to be impressed – or amused.
Credit: Bob Mankoff - The New Yorker Collection
Florida Federal Case
In the Florida Mar-a-Lago documents case the third defendant recently added to the indictment, Carlos De Oliveira, has been arraigned. His attorney, John Irving, also represents several individuals who may be government witnesses at the trial. As with co-defendant Walt Nauta’s counsel (who also represents several potential witnesses) the government has asked the court to hold a hearing to determine whether Irving’s representations pose any conflicts of interest.
In the meantime, Judge Cannon has canceled the hearing that was set for this Friday to discuss the protective order for discovery. She said she will reschedule and that the hearing will now take place under seal.
This is probably in part to give Oliveira and his new counsel time to participate in the protective order arguments. But it’s just one small sign of how the issues concerning handling classified information have the potential to delay this trial.
The Effect on State Cases if Trump is Re-elected
There were some interesting discussions in the comments last week on my post about the Georgia indictment. One topic was the effect on the state prosecutions if Trump somehow manages to win re-election.
After the Mueller investigation we’re all familiar with the Justice Department policy that a sitting president cannot be prosecuted. But a re-elected president Trump wouldn’t need to rely on that policy. He could just order his Justice Department to drop all federal cases against him. He might even pardon himself, although his power to do that is a matter of debate.
But Trump can’t grant a state pardon or otherwise scuttle state prosecutions. So what effect would his re-election have on the Georgia and New York cases?
All of this is completely uncharted territory. That said, I think it’s extremely unlikely that state prosecutors would be allowed to pursue a criminal trial of a sitting president. The risks to national security and potential for chaos and political mischief are too great. I expect if it came down to it the Supreme Court would find that the Constitution prohibits a state from proceeding with a prosecution until after the president leaves office.
But as I said – there is no precedent for any of this, so no one knows for certain how it would be resolved. Let’s hope we don’t have to find out.
The Twitter Files (Cont.)
Last week I told you about how The Company Formerly Known as Twitter was found in contempt and fined $350,000 for failing to timely comply with Jack Smith’s search warrant for Trump’s Twitter account records. Last week we got to see an unsealed transcript of the court hearing related to the dispute.
As former FBI director James Comey might say, “Lordy, there are DMs.”
The hearing transcript revealed that Smith obtained a great deal of data from the search warrant, including direct messages and draft Tweets. We don’t know what they contained, but this could be a treasure trove of information.
There’s a reason prosecutors say “e-mail” stands for “evidence mail.” People say things in electronic communications that they would never put in a memo or say in front of witnesses. Even in this technological age, people still seem to think such messages will somehow remain confidential or can be easily deleted.
Trump does not use email. But if he was sending or receiving direct messages on Twitter, that could be just as valuable. It seems unlikely he would be thinking about the prospect that such messages might be stored somewhere and ultimately could fall into prosecutors’ hands. He’s hardly known for being restrained and circumspect in his public messages. Who knows what he might say if he thought a message was private?
The transcript of the hearing is also fascinating (and kind of amusing) because D.C. District Judge Beryl Howell completely raked Twitter’s counsel over the coals. She accused Twitter of taking “extraordinary” and “unprecedented” steps to seek to give Trump advance notice about the warrant, steps it had never taken for any other account holder. She questioned whether Twitter’s new owner, Elon Musk, was trying to “cozy up” to the former president and make him feel welcome. (After purchasing the company, Musk famously re-instated Trump’s Twitter account, which had been suspended after January 6.) The judge was pissed and she let it show.
Anyway – it was not a fun day to be Elon’s lawyer.
Kyle Cheney at Politico has been doing some great reporting on this story, if you want to read more.
“These jurors have signed their death warrant”
When the Georgia Trump indictment was released, I was startled to see listed on one of the introductory pages the names of the members of the grand jury. Apparently this is a legal requirement in Georgia, and an indictment will be deemed defective if the grand juror’s names are not included. (In the federal system the identities of grand jurors are protected).
The very next day, according to NBC news, Trump supporters posted the names and addresses of the grand jurors on a fringe right wing website that often features violent rhetoric. On another pro-Trump forum a supporter posted, “These jurors have signed their death warrant by falsely indicting President Trump." Some grand jurors have already received threats, and the Fulton County Sheriff’s department and FBI are investigating,
This was completely predictable. It’s outrageous that these names were made public. Even if it is the standard state practice, in this case there should have been an exception or a protective order. These grand jurors have now been put in danger of harassment or violence for doing their civic duty.
DA Willis could have seen this coming and should have tried to find a way to protect the members of her grand jury. Now they are probably going to end up needing security.
Meanwhile, a 43-year-old Texas woman, Abigail Shry, was arrested for threatening to kill Judge Tanya Chutkan, who is presiding over the Trump case in Washington, D.C., in a voicemail that also included racial slurs.
Trump led the way in normalizing violent rhetoric in our politics, culminating in the actual violence on January 6, 2021. We will be very lucky if we get through the next couple of years without someone being hurt or killed for doing their duty as a juror, witness, prosecutor, or judge.
Congressman and Serial Liar George Santos
George Santos Back in the News
Samuel Miele, a former aide to freshman Congressman George Santos (R – N.Y.) was indicted last week on charges of wire fraud and identity theft. He is accused of defrauding donors to the Santos campaign in 2021 by sending fundraising emails in which he posed as the chief of staff for House Speaker Kevin McCarthy.
Santos rose to notoriety shortly after his election in 2022 when news reports revealed that during his campaign he repeatedly lied about his work history, education, religious heritage, and other details of his background. As I wrote in a post last January, those lies, although sleazy, were probably not criminal.
But there were also questions raised about his suspicious personal and campaign finances, and last May those questions did result in criminal charges. Santos was indicted for wire fraud, money laundering, and other offenses for various financial misdeeds, including defrauding donors to his campaign. His case is pending; meanwhile he remains in Congress and is running for re-election in 2024.
Now Miele, his aide, has also been charged with defrauding Santos donors, in what prosecutors have called a related case. Using a fake email account to pose as McCarthy’s chief of staff, Miele allegedly solicited contributions from more than a dozen donors. His indictment alleges that during the scheme he sent a message to his boss, Santos, in which he admitted to “faking my identity to a big donor,” but said that he was “high risk, high reward in everything I do.”
Well, he was right about the high risk part, anyway. I’m not sure he’s going to be as excited about his reward.