The Weekend Wrap: February 11, 2024
No immunity for Trump, and no charges against Biden for classified docs
Welcome to the Weekend Wrap! Here are the week’s white collar highlights:
D.C. Federal Case - January 6 Allegations
The big news in the D.C. case was the long-awaited decision from the D.C. Circuit denying Trump’s claims of presidential immunity. The three-judge panel was unanimous and wrote a per curiam, or “by the court,” opinion, which means it is not signed by any individual judge but is considered the voice of all three of them together.
The decision is emphatic and well-reasoned in rejecting all of Trump’s claims. The fact that it was per curiam, with no dissents or concurring opinions, makes it even stronger. The judges also gave Trump a quick deadline if he wants to pursue further appeals: he must seek a stay in the U.S. Supreme Court by tomorrow, February 12, or the case returns to judge Chutkan and she can move forward to get ready for trial.
This ruling dramatically increases the odds that the D.C. case can actually get to a jury before the November election. I think there’s a decent chance that the Supreme Court won’t even take the case.
I wrote a detailed analysis of the decision and what happens next on the day it came out. If you missed that you can find it here:
Georgia State Case - January 6 Allegations
Most of the action in Georgia continued to center on the motion filed by defendant Mike Roman to disqualify the district attorney, Fani Willis, because she is romantically involved with the special counsel she hired to prosecute the case. Trump, Rudy Giuliani, and several other defendants have also joined in the motion.
Judge McAfee set an evidentiary hearing for the motion this Thursday, the 15th. Roman has subpoenaed Willis, the special prosecutor Nathan Wade, and a number of other people to testify at that hearing. Willis has moved to quash the subpoenas and has urged McAfee to cancel the hearing and deny the motion. She claims there is no legal basis for disqualification. She also says that as far as she knows, Roman’s counsel has made no effort to interview any of the people she has subpoenaed to see whether they would in fact provide relevant and useful information. Willis claims the motion is a “fishing expedition” more geared towards public relations and generating salacious headlines than it is to legal relief.
I tend to agree with Willis. This is what I posted on the Platform Formerly Known as Twitter:
This doesn’t mean I condone Willis’s behavior, which as I’ve argued before was incredibly reckless and showed a terrible lack of judgment. But although Roman filed the motion, he hasn’t produced a single witness affidavit or other piece of evidence to back it up. Criminal defendants don’t get to put the prosecutor on the stand and examine her every time they make a claim of misconduct.
I think McAfee has enough information to decide the motions without taking live testimony. He may still hold the hearing to listen to arguments from the attorneys, but I don’t think he should let Roman put the prosecutor and other witnesses on the stand.
We’ll see what happens Thursday.
Florida Federal Case - Mar-a-Lago Documents
There’s been some skirmishing in Florida regarding discovery, and in particular regarding Jack Smith’s desire to safeguard witnesses.
Without getting too far down in the weeds: in a motion they filed to compel additional discovery, Trump’s attorneys attached (under seal) some materials prosecutors already turned over in discovery but that were subject to a protective order. They simultaneously filed a request to have those materials unsealed, arguing that now that they were part of the court record the presumption is that the public should be able to see them.
Smith opposed the request to unseal the documents. He argued that some of them revealed sensitive government information about classified operations. He also argued that many of the materials revealed information about the identity and potential testimony of government witnesses and that unsealing that material could expose those witnesses to harassment and threats.
On Tuesday Judge Cannon granted the defense motion in part. She agreed with the government that certain sensitive intelligence information could remain sealed, along with personal identifying information about witnesses such as dates of birth and social security numbers. But as to witness identities and statements, she held that the government had not met its burden of establishing that the records should remain sealed. She said the concerns about harassment were too vague and speculative.
On Thursday Smith filed a motion asking Judge Cannon to reconsider. He argued that she had committed a clear error by applying the wrong legal standard to determine whether the documents could remain under seal, and that the government had clearly met its burden under the proper standard. He said the concerns about witness security are real, providing a number of examples from other cases: “There is a well-documented pattern in which judges, agents, prosecutors, and witnesses involved in cases involving Trump have been subject to threats, harassment, and intimidation.” He also filed another document under seal that he said describes threats to a witness in the case that are under investigation by the FBI.
On Friday Judge Cannon gave the defense until February 23 to respond to the motion to reconsider (two weeks! Way more time than necessary — more foot-dragging). She put all other deadlines on hold, so the documents will remain under seal for now.
If Cannon rules against the government and orders the witness information to be disclosed, we could see the first appeal by Jack Smith to the 11th Circuit. That, of course, means even more delays.
You might have seen some commentators last week suggesting this dispute might allow Jack Smith to get the 11th Circuit to kick Judge Cannon off the case. I think that’s largely a fantasy. You don’t get a judge disqualified just for making boneheaded rulings. Smith would have to show some actual bias unrelated to the legal merits of her rulings, and I don’t think Cannon has given him evidence of that — at least not yet.
In the meantime, Judge Cannon is set to meet tomorrow separately with defense counsel and then with prosecutors to discuss issues involving the use of classified materials under the Classified Information Procedures Act.
New York State Case - Hush Money/False Business Records
The New York case still remains the front-runner to be the first Trump criminal trial. There is a hearing this Thursday, the 15th, after which we should have a better idea of the status of the case and whether trial will actually begin as scheduled on March 25.
Other White Collar News
Biden Exonerated in Classified Docs Case
Special Counsel Robert Hur released a 344-page report of his investigation into Joe Biden’s retention of classified documents. As expected, he recommended no criminal charges. Hur, who served as the U.S. Attorney for Baltimore during the Trump administration, was appointed by Merrick Garland in November 2022 after classified materials were discovered in Biden’s former office space and home and voluntarily returned to the government.
Special counsel Robert Hur (Credit: Alex Brandon/AP)
Hur concluded that Biden had retained classified materials from his time as vice president related to the war in Afghanistan and other issues, but that pursuant to DOJ policy criminal charges were not appropriate. He said there was insufficient evidence that Biden acted with criminal intent. The evidence indicates that some of the materials were kept without his knowledge and that he honestly believed he was entitled to keep others.
The report also places great weight on Biden’s poor recall of events, concluding that his poor memory would make it difficult to convince a jury that he willfully retained classified materials: "At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," the report states.
Hur has come under a lot of justified criticism for taking gratuitous shots at Biden’s memory in his report. Mentioning Biden’s failure to recall particular events years related to the documents might have been justified, but Hur seems to go out of his way to repeatedly refer to Biden as having a poor memory and reduced cognitive abilities.
Predictably enough, the main headlines that emerged once the report was released were not that Biden had been exonerated but whether the report means he is too feeble to be president. Biden and his team are pushing back hard on that story and arguing that Hur’s report is a political hit job.
Trump and his supporters will undoubtedly try to draw comparisons between this investigation and the Florida Mar-a-Lago case to suggest that Trump has been unfairly singled out because “everyone does it.” But Hur himself recognized the important differences between the two cases:
It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump's case and Mr. Biden's are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts.
Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.
In contrast, Mr. Biden turned in classified documents to the National Archives andthe Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation.
It’s not that uncommon for former officials to end up inadvertently having classified materials. There’s even a term for it: “spillage.” The Trump Florida prosecution is not primarily about the fact that Trump had the materials. It’s about keeping the materials after repeatedly being told he needed to return them, hiding them from investigators, and obstructing the investigation.
Efforts to Keep Trump Off the Ballot
On Tuesday the Supreme Court heard more than two hours of arguments in Trump’s appeal of the Colorado decision to kick him off the presidential ballot for engaging in an insurrection under the 14th amendment. It’s often hard to predict how the Court will rule based on oral arguments, but not this time. It was pretty clear that virtually all the Justices, including the liberals, were very skeptical of the idea that an individual state could decide whether a candidate for president is constitutionally disqualified.
The Justices were clearly concerned with the implications if the Court were to uphold Colorado’s decision. For example, many other states would feel bound by the result, and that could mean Colorado’s decision ended up deciding the election for the entire country. Or suppose different states held similar proceedings and reached different conclusions, so some considered Trump disqualified and others did not? If only a couple of key swing states disqualified a candidate they could effectively tip the election for everyone, even for voters in those states that disagreed with that conclusion.
Justice Elena Kagan summed it up with this question to the lawyer for Colorado: “I think that the question that you have to confront is why a single state should decide who gets to be president of the United States.”
One interesting aspect of the arguments was that there was almost no discussion of the definition of an “insurrection” or whether Trump engaged in an insurrection. I think the Court does not want to venture into that political minefield and will find an off-ramp that allows it to avoid that issue. They may not all agree on the same rationale, but I think the decision could be 9-0, or at least 8-1.
The Court may rule that the disqualification provision in the 14th amendment cannot take effect unless Congress steps in to create some uniform national standards. Or it may end up ruling that the provision does not apply to the presidency at all. That’s what the lower court judge in Colorado initially held. It seems counter-intuitive, but based on various textual arguments I won’t go into here, it’s not crazy. And such a holding would have the benefit of heading off the constitutional crisis that could arise if, for example, Democrats in Congress refused to count electoral votes for Trump if he happens to win the 2024 election. (You thought January 6, 2021 was wild? January 6, 2025 could be really something.)
As I’ve mentioned before, I think this is probably a good result. The idea of state by state determinations on this issue does make me uneasy, and I think the Court is right to be concerned. It opens up a lot of potential chaos and mischief. Imagine Texas, for example, determining that Biden’s failure to secure the border amounts to an “insurrection” and running to a sympathetic judge to kick him off the ballot.
In the end it is better to let the voters decide. I expect that’s what the Court will hold, and probably fairly quickly so the country has the answer before Super Tuesday on March 5.
Judge Denies Peter Navarro’s Request to Remain Free Pending Appeal
On Thursday U.S. District Judge Amit Mehta denied Peter Navarro’s request to remain out of jail pending his appeal. Navarro, a former Trump advisor and chief architect of the plot to overturn the election, was convicted of two counts of contempt of Congress for ignoring subpoenas from the House January 6 Committee. Last month judge Mehta sentenced him to four months in prison.
Once a defendant is sentenced, the presumption is that they will begin serving that sentence even if they intend to appeal their conviction. Defendants can ask the court to make an exception and allow them to remain free pending appeal if they believe their appeal will raise a “substantial question” of law or fact that is “likely” to result in a reversal of their conviction or a new trial.
Navarro had claimed he was entitled to ignore the subpoenas based on executive privilege. Judge Mehta rejected that defense at trial, holding that Navarro had failed to demonstrate that former president Trump ever invoked executive privilege as to his testimony. Navarro now intends to make that argument on appeal, but for essentially the same reasons Judge Mehta held he had failed to show this was a “substantial question” that would likely lead to his success on appeal.
Unless the court of appeals intervenes, Navarro now must report to prison as soon as the Bureau of Prisons designates a time and location.
Navarro’s co-conspirator in the January 6 plot, Steve Bannon, was also convicted of contempt of Congress, but in his case judge Carl Nichols ruled he could remain free pending appeal. Bannon is arguing that he should have been entitled to present an advice of counsel defense to the jury. Although I don’t like it, I think Bannon may actually be right, as I wrote here:
Bannon’s appeal has been argued before the D.C. Circuit and we are awaiting the decision.
Massive New York Bribery Case
On Tuesday the U.S. Attorney for the Southern District of New York unsealed the indictments of 70 current and former employees of the New York City Housing Authority. This was the largest single-day takedown for bribery in the history of the Justice Department.
The NYCHA is the largest public housing authority in the country. When repairs and construction were needed on housing units, employees could award contracts on a no-bid basis if the amount was less than $10,000. Prosecutors charged that the defendants solicited bribes and kickbacks, typically between 10 and 20% of the contract value, in exchange for awarding these no-bid contracts. In total they allegedly received more than $2 million in corrupt payments in exchange for awarding more than $13 million in contracts.
Former Baltimore State’s Attorney Convicted
Baltimore’s former top prosecutor Marilyn Mosby was found guilty last week on one count of mortgage fraud. Federal prosecutors had charged her with making false statements about her finances in mortgage applications she used to purchase two Florida vacation homes. Mosby was also convicted of perjury in an earlier trial for lying about her finances to obtain an early withdrawal from her retirement account under a covid relief program. She had falsely claimed to be suffering financial hardship due to the Covid-19 pandemic, when in fact she was earning $250,000 a year as state’s attorney. She then used the $90,000 she withdrew to make the down payments on the vacation homes.
While serving as state’s attorney, Mosby gained national recognition for filing charges against the police officers involved in the brutal death of Freddie Gray in 2015. She lost her bid for re-election in 2022 after she was indicted.
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