The Weekend Wrap: December 3, 2023
Judges reject Trump's immunity claims
Welcome to the Weekend Wrap! Here are the week’s white collar highlights:
D.C. Federal Case - January 6 Allegations
Trump’s Immunity Claims Denied - It was a big week in Jack Smith’s election interference prosecution. On Friday, Judge Tanya Chutkan denied Trump’s motions to dismiss based on presidential immunity and other constitutional grounds.
Judge Tanya Chutkan
Trump argued he had absolute immunity from criminal prosecution for any actions taken within the “outer perimeter” of his official duties while president, including his efforts to challenge the election results. Judge Chutkan wasn’t having it:
The Constitution’s text, structure, and history do not support that contention. No court—or any other branch of government—has ever accepted it. And this court will not so hold. Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.
She ruled that a former president enjoys no “divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Judge Chutkan also denied Trump’s motions to dismiss on other constitutional grounds, including that the double jeopardy clause bars his prosecution because he was already impeached for the same conduct and that the indictment violates his First Amendment rights.
These rulings were expected, but Chutkan’s forceful and stirring rejection of Trump’s immunity argument was still good to see. It’s also important because it starts the clock ticking on Trump’s expected pretrial appeal of the immunity and double jeopardy claims. Because these defenses assert a right not to be tried at all, defendants usually are entitled to appeal a denial of their claim before the government may put them on trial.
That means that right now the single most important factor that will determine whether this case gets to trial before the presidential election is the willingness of the appellate courts, including the Supreme Court, to put any such appeals on a fast track and resolve them quickly.
I had a piece about this in the New York Times last week. Here’s a free link if you missed it earlier:
Earlier the same day, the D.C. Circuit also denied Trump’s claim of immunity from civil damages in lawsuits filed by police officers and lawmakers injured during the January 6 Capitol riot. Presidents (and former presidents) do enjoy immunity from civil lawsuits (as opposed to criminal prosecution) for their official actions while in office. But the Court of Appeals drew a sharp distinction between actions taken as president and those taken as a political candidate - even if that candidate happens to be the incumbent president: "When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. . . . campaigning to gain that office is not an official act of the office."
The unanimous Court of Appeals panel held that Trump’s actions on and leading up to January 6 were all acts of Trump as a political candidate, not as president. Accordingly, he enjoys no immunity for those actions and may be sued for damages. He will still have an opportunity to argue as the cases proceed that his actions were official and thus protected, but the Court ruled he cannot get the cases thrown out on a motion to dismiss.
In a single day, Trump went 0 for 2 in his efforts to place himself above the law. Friday was a huge step forward in the justice system’s efforts to hold Trump accountable for January 6.
Trump’s Motions for Discovery - On Monday, Judge Chutkan denied Trump’s motion for permission to subpoena records from the House January 6 Committee. His lawyers had claimed the Committee has withheld or suppressed certain records that were favorable to Trump. They also claimed there were a number of “missing records” from the investigation and that they were entitled to subpoena information about what happened to them.
Chutkan wrote that Trump had failed to meet the legal requirements for issuing a subpoena. She noted that the supposed “missing materials” apparently either don’t exist or have already been produced, and characterized the requests as a “fishing expedition.”
Undeterred, on Monday evening Trump’s attorneys went fishing again. They filed another motion, this time seeking permission to compel prosecutors to turn over vast amounts of information related to the 2020 election and the Capitol riot. They are seeking information from multiple government agencies, including the FBI, Homeland Security, Defense Department, Capitol Police, and the National Guard. They claim prosecutors have withheld information that would be favorable to Trump’s defense that his actions were justified because the election actually was fraudulent and he was the rightful victor.
These motions make it clear that at trial Trump intends to go all-in on the big lie, continuing to claim that the election was stolen and that the Biden administration is suppressing the evidence that would prove it. Many of the claims echo common Trump-world conspiracy theories about the election and debunked claims about January 6.
Again, this motion seems more like a political document than a legal one. I expect it will also be denied.
Gag Order Appeal - On November 20, the D.C. Circuit heard oral arguments on Trump’s appeal of the limited gag order Judge Chutkan imposed to prevent Trump from going after witnesses, prosecutors and court personnel. It was a lively argument — a “hot bench” — with good questioning from the judges, and lasted for several hours. Expect a ruling any day on whether the temporary stay of that order should remain in place while the court considers the merits.
Georgia State Case - January 6 Allegations
It was also a busy week in the Georgia case. Judge McAfee held a marathon motions hearing on Friday with lawyers for Trump and a number of the other 15 remaining defendants. They have filed a large number of motions arguing that various charges in the indictment are defective and should be dismissed.
Judge McAfee already denied some of these claims, such as challenges to the RICO charge and those based on the First Amendment, in connection with the earlier proceedings involving Kenneth Chesebro and Sidney Powell. But he allowed the attorneys for the remaining defendants to renew the arguments and try to persuade him to reconsider. The lawyers for different defendants also raised challenges to state law charges including forgery, filing false documents, and seeking to persuade a public official to violate their oath.
There were so many motions and lawyers that McAfee wasn’t able to finish them all and will have to schedule another hearing. He didn’t rule from the bench, but I expect most or all will be denied. Most of the defense arguments sound like they are more appropriately made at the close of the government’s case, in a motion for a judgment of acquittal. They aren’t likely to succeed at getting the charges thrown out before trial.
The more interesting details to come out of the hearing had to do with scheduling. The DA has proposed an August trial date for all the remaining defendants. No one at the hearing suggested the trial could take place any earlier than that. Judge McAfee said an August trial date might be feasible, but he thought it was too early to be certain. He also expressed skepticism, as he has in the past, about the DA’s proposal to try all fifteen defendants at the same time. Without ruling, he floated the idea of splitting the defendants into two groups, the “A team” and the “B team,” and letting prosecutors decide which group would go to trial first.
Trump’s attorney opposed the August trial date. He argued that Trump, as the likely Republican nominee, would be in the heat of a presidential campaign, and forcing him to go to trial would amount to election interference. He also said that, in his view, if Trump were to win the election his trial would likely have to be postponed until he left office in 2029. (I think that’s clearly correct - there’s little chance the Supreme Court would allow a state to put a sitting president through a criminal trial.)
For his part, defendant and former Trump attorney John Eastman has filed a motion urging that “Defendants who do not have lifetime United States Secret Service protection and who are not running for election to an office” be allowed to complete their trials in 2024. He suggested splitting all defendants but Trump into two groups and letting them go to trial, arguing that without the presence of Trump and the Secret Service the trials could proceed more quickly. (Trump, of course, would be fine with this plan, because it means postponing his own trial until after the election.)
We will have to await rulings on all of this from Judge McAfee. For now, there is no set trial date for any of the remaining defendants.
Florida Federal Case - Mar-a-Lago Documents
There was not much news from the court in the Florida prosecution, but there was some interesting news about a potential trial witness. ABC news reported that, according to sources, Trump attorney Jennifer Little has told Jack Smith’s investigators that she informed Trump failing to turn over classified documents in response to a grand jury subpoena would be a crime, and that Trump “absolutely” understood her message.
The warning reportedly took place during a meeting between Trump, Little, and Evan Corcoran, another attorney retained by Trump to handle the documents dispute. Corcoran also reportedly warned Trump about the need to comply. According to the indictment, Trump instead hid more than 100 classified documents from investigators and his own attorneys. The documents were recovered only when the FBI executed a search warrant at Mar-a-Lago.
This testimony from Trump’s own attorneys will negate any potential defense that he honestly thought he was entitled to keep the documents. If and when the Florida case goes to trial, Trump is toast. It’s the strongest of the cases against him and there is no viable defense. His only hope will be for a holdout juror leading to a hung jury — or to win re-election and order the case dropped.
New York State Case - Hush Money/False Business Records
No real news out of New York on the criminal prosecution (the New York state civil fraud trial is continuing, and Trump’s gag order in that case was reinstated by the state appellate court). The next court date is February 15. It still looks like the trial in this case will be pushed back to follow the federal cases, so likely will not be in 2024.
Other White Collar News
Santos Expelled from Congress
On the third attempt, the House of Representatives finally voted to expel Rep. George Santos (R-NY) from Congress. Santos is currently under indictment for 23 felony charges related to fraud involving his campaign finances. This motion to expel him followed the release of a House Ethics Committee report of its own investigation that found Santos had engaged in serious misconduct. The vote was 311-114, with a number of Republicans finally turning against him. He is only the sixth Member in history to be expelled from the House.
There will now be a special election to fill Santos’s seat. His district includes portions of Queens and Long Island. Biden won the district by 10 points in the 2020 election, but Santos flipped the seat to the Republicans in 2022. Democrats will have a decent shot at recapturing the seat, further narrowing the Republicans’ razor-thin majority in the House. Special elections are sometimes good barometers of how voters are feeling heading into the presidential election year, so this will be interesting to watch.
You can read my summary of the Santos indictment here:
And if you’re interested in my earlier discussion of why Santos’s lies about his personal background, although sleazy, were not criminal, you can find that here:
The Cheese is Cooperating in Nevada
According to a CNN report, former Trump attorney Ken Chesebro (a/k/a “The Cheese”) is now cooperating with Nevada state prosecutors investigating the 2020 Trump fake electors scheme in that state. Chesebro was a chief architect of that scheme, which involved slates of Trump electors falsely claiming to be the duly authorized presidential electors from seven states that Biden won. The plan was to use the fake electors to sow uncertainty about the election, leading to Vice President Pence refusing to count the votes or sending the issue back to the states.
Chesbro has already pleaded guilty in the Georgia state case, based on his role in submitting a slate of fake electors to Georgia state officials. Now apparently he is cooperating with Nevada prosecutors in hopes of heading off similar charges there.
Two states, Georgia and Michigan, have already charged a number of fake electors for their role in the scheme. In addition to Nevada, state investigations are reportedly ongoing in Arizona and New Mexico. Judge McAfee in Georgia recently modified Chesebro’s probation conditions to allow him to travel to Nevada, Arizona, and Washington, D.C. “to meet with counsel.”
SCOTUS Considers Reviewing Obstruction Law
During its closed conference on Friday, the Supreme Court considered whether to take up the appeals of three January 6 Capitol rioters charged with obstruction of justice under 18 U.S.C. 1512. This statute has been used to charge hundreds of the Capitol rioters, based on evidence that they corruptly sought to obstruct and delay the official Congressional proceeding to certify the electoral vote count on January 6.
Capitol riot defendants have challenged the use of the statute on various legal grounds. More than a dozen federal district judges in D.C. have upheld the charge, but one Trump-appointed judge, Carl Nichols, ruled the statute does not apply. Prosecutors appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, and that court reversed. The defendants are now asking the Supreme Court to intervene.
This decision will be closely watched because of its implications for the D.C. prosecution of Trump, in addition to the cases of hundreds of Capitol rioters. Two of the four charges in Jack Smith’s D.C. indictment rely on this same statute. If SCOTUS were to take the case, its ruling would have obvious implications for Trump’s prosecution. Judge Chutkan might even decide to delay the trial until the Court rules. (That ruling typically would come no later than June, so the trial could still begin prior to the election.)
As the U.S. Solicitor General pointed out when urging the Justices not to take the case, the defendants have not yet been convicted of this charge. Typically the Court will not review cases in that posture; if the defendant is convicted, he can challenge the statute on appeal at that time. If the Court reaches out and takes the case now, I think we’d have to consider that a bad sign for the government. We may know as early as next week.
If you are interested in a much deeper dive on this obstruction charge, how it applies to the Capitol riot, and why I think it’s a solid charge, you can check out my earlier posts:
Murdaugh sentenced to 27 years
On Tuesday a state judge in South Carolina sentenced convicted murderer and former lawyer Alex Murdaugh to 27 years in prison for stealing more than $12 million from his clients and law partners and evading taxes. About eight months ago, in a case that drew a lot of media attention, Murdaugh, a member of a prominent and well-connected family in South Carolina legal circles, was convicted at trial of murdering his wife and son at their rural hunting estate. He’s currently serving two consecutive life sentences without parole for those convictions, which he is appealing.
Murdaugh pleaded guilty to the thefts, which included stealing millions of dollars in settlement payments intended for personal injury clients. Twenty-seven years puts him in the top tier of sentences for white collar offenders – although if his murder convictions and life sentences are upheld, it’s not going to make any difference to him. He’s also awaiting sentencing in yet another case where he pleaded guilty to federal fraud charges for similar financial crimes.
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