The Weekend Wrap: November 3, 2024

Steve Bannon released from prison

Welcome to the Weekend Wrap! It’s been a relatively quiet week as the election approaches. I hope you all either have voted or have made a plan to vote!

Here are the week’s white collar highlights:

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

On Halloween Jack Smith filed his opposition to Trump’s request to file a motion to dismiss based on the claim that Smith’s appointment was unconstitutional. This was the basis of Judge Cannon’s dismissal of the Trump prosecution in Florida. Judge Chutkan had told Trump’s counsel they could move for permission to file the motion, even though the deadline for filing motions to dismiss has long since passed. As we discussed last week, they filed a request for leave to file the motion combined with the motion itself, rather than waiting to see if the judge granted permission.

In his opposition, Smith argues that Trump has shown no good excuse for the late filing and that Chutkan should deny him the right to file now. He notes that Trump timely filed the same motion in his Florida case, which clearly shows that he was aware of the legal grounds for the motion. He filed multiple other motions to dismiss in DC but chose not to file this one. He should be bound by that tactical decision. 

Trump’s counsel argued that the return of a superseding indictment should give him a new deadline to file motions to dismiss. As Smith notes, that is not persuasive when the superseding indictment added no charges and the same legal theory has been available from the start of the case: “Nothing in the superseding indictment,” Smith writes, “provided any basis for his motion that did not exist before.” Nor do Judge Cannon’s opinion or Justice Thomas’s concurrence in the immunity case, neither of which bind Judge Chutkan, provide any basis for filing a tardy motion to dismiss.

Smith also argues that, if Chutkan does grant Trump leave to file the motion, the motion should be denied. He points to binding D.C. Circuit precedent that squarely rejects the same arguments (Chutkan has already noted this precedent as well) and the long practice of the Justice Department relying on the same statutory provisions when appointing special counsels.

It appears what really happened here is that Trump’s attorneys, recognizing that the D.C. Circuit law was squarely against them, decided it wasn’t worth filing this motion in D.C. After they surprisingly won on the issue before Judge Cannon and the theory received an unexpected boost from Justice Thomas, they realized their mistake. Now they are scrambling to try to get the motion on the record so they can preserve it for appeal, even though they know they won’t win before Chutkan. Judge Chutkan may well let them file it, just to bend over backwards to be fair, but she’d be well within her rights to say no. If she does allow them to file, she will certainly and quickly deny the motion on the merits.

In other news, Judge Chutkan granted a motion from the defense to extend some filing deadlines based on disruption of their Florida offices and ability to work that resulted from the recent hurricane. Trump’s response to Smith’s filing on presidential immunity is now due November 21, Smith’s reply is due December 5, and Trump’s sur-reply is due December 19.

NBC filed a motion asking Judge Chutkan for permission to televise any hearings and oral arguments regarding presidential immunity, citing the extraordinary public interest in the case. It had earlier filed a similar motion for permission to televise the trial. These motions are unlikely to succeed. Although criminal proceedings are televised in some state courts, such as Georgia, the Federal Rules of Criminal Procedure prohibit photographing or televising criminal proceedings in federal court. There’s no legal basis for Chutkan to disregard this rule and grant the motion.

New York State Case - Hush Money/False Business Records