A Leak & A Disaster In The Making

While there are reports the grand jury is working late, there is no indictment yet from Fulton County. But there was an intriguing, apparently accidental, leak. The clerk’s office briefly posted what appears to be a normal grand jury scheduling document, reflecting the charges prosecutors would ask a grand jury to return against a defendant. The defendant is Donald Trump. The document shows RICO charges along with a series of conspiracies, a charge of soliciting a public official to violate his oath of office, and three charges involving false documents.

The numbers running down the left hand side of the document are likely the count numbers, which makes it interesting that they aren’t consecutive. That suggests there are additional charges related to additional defendants, since this document is limited to Trump. But we can see that if this is what the real thing looks like, it’s a major indictment, with at least 39 counts.

Running down the right hand side of the document are a series of dates. The most industrious among you may try to match up the dates with the specific conduct that is charged for each of these counts. I’m going to wait for the indictment to clarify that; it won’t be long now, perhaps tonight. But, for instance, the conduct charged as “solicitation of violation of oath by public officer” on September 17, 2021, could relate to this letter, which asks Georgia Secretary of State Brad Raffensperger to decertify the election results in Georgia based on Trump’s false claims of fraud.

Even if this document is accurate, it at best reflects the charges the district attorney will ask the grand jury to vote on. Whether or not to charge Trump or anyone else is entirely up to them. The grand jury will decide which, if any, of the charges proposed by the district attorney’s office it believes there is sufficient probable cause to indict on. So, while conservative media is likely to be rife with complaints that this document shows the DA prejudiced the grand jury’s work, blah, blah, blah, this is the sort of scheduling document prosecutor’s offices use to help lawyers know when to show up in the grand jury to present their cases and to help grand jurors follow along.

No explanation for how or why it happened, but given the information the document contains, it was a major breach of security by the clerk’s office. Still, there’s no reason to believe this was anything other than inadvertent. clerk’s office employees are human, and although prosecutors’ tempers flare when this happens in a highly sensitive case—and I’m sure that was the case here—mistakes happen and the clerk fixed it quickly. Just not quickly enough.

The plot thickened late in the day when the clerk’s Office cautioned against relying on the document, calling it “fictitious” without explaining how it got posted on their website. There’s obviously a lot of water between “oops, we made a mistake” and “it’s fictitious.” This still sounds more like the former than the latter to me, especially with the apology in the concluding paragraph. The clerk seemingly admonishes the media for not realizing that a document that does not “bear an official case number, filing date,” etc. is not an “official filing.” And yet, there is both a case number and a date on the screen grab above, as well as the assignment to Judge Rachelle Carnesale, an experienced child abuse prosecutor before she was appointed to the bench by Georgia Governor Brian Kemp in 2019. The Judge is supposed to be randomly selected after an indictment is returned, so we’ll see if she turns out to be the judge.

It’s a fair assumption that when the clerk’s office dockets a document, it’s official. It probably would have been better to just take the lumps for the mistake and move on, unless there’s something very odd at work here we don’t know about. And the information is still intriguing.

Tomorrow morning while we’re waiting on or discussing the indictment, Planned Parenthood will be under attack in a Texas courtroom. You’ll remember the Judge, Matthew Kacsmaryk, who entered the order banning the abortion drug mifepristone nationwide in April of this year and who seems to have been put on the bench (by Donald Trump) to execute a strong anti-abortion agenda. This new case is a frontal attack on Planned Parenthood, and it could have dramatic consequences for women who rely on its health centers for their medical care.

The case is Doe v. Planned Parenthood Federation of America, an action brought by the state of Texas and an anonymous plaintiff. They are suing Planned Parenthood Federation of America and Planned Parenthood affiliates that provide sexual and reproductive health care services like birth control and cancer screenings in Texas and Louisiana. The plaintiffs allege Planned Parenthood violated the federal False Claims Act, a civil statute, not a criminal one, that the government uses to recover money from those who defraud the government. Presumably, the anonymous plaintiff is a whistleblower who wanted to raise the fraud allegations.

Individuals can bring actions called qui tams under the False Claims Act. Qui tam means “in the name of the king.” So, the qui tam provisions of the False Claims Act allow whistleblowers to report fraud on behalf of the US government and receive a share of the recovered funds. Typically, the government steps into the whistleblower’s shoes in the promising cases, so it’s somewhat telling that the United States is not a party to this case.

The plaintiffs seek damages of approximately $1.8 billion—enough to force centers across the country to shut down. If the plaintiffs win, access to affordable sexual and reproductive health care for those most in need will be seriously undercut. Planned Parenthood filed a motion for summary judgment, asking the court to dismiss the case because it lacked any legal or factual merit. Judge Kacsmaryk will hear oral argument on those motions Tuesday morning in his Amarillo courtroom.

There is some indication his mind is already made up though, and that he intends to let the case go to trial. In setting the summary judgment motion for argument, he directed the parties to brief:

Those are the kinds of concerns about striking a fair jury that judges don’t need to consider unless they’re preparing to try a case. The Judge has also ordered all sealed documents made public, an extremely unusual move, since it includes highly sensitive and confidential information about Planned Parenthood and its Texas affiliates. 

The lawsuit is more political ploy than anything else, starting from the failed premise that Planned Parenthood engaged in fraud when it failed to repay Texas for reimbursements the state gave it under Medicaid for services it actually performed. That’s all they’ve got. In 2015 and 2016, Texas tried to kick Planned Parenthood’s affiliates out of its Medicaid program, but a federal court enjoined them from doing it. Under court order, Planned Parenthood’s Texas health centers provided thousands of Texans with care like birth control, STI testing and treatment, and life-saving cancer screenings until March 2021. Texas reimbursed them, like it would any other in-state provider. But after the Fifth Circuit vacated the order all of this was happening pursuant to, Texas rounded on Planned Parenthood with this crazy scheme to put them out of business nationwide. Most judges would have already dismissed this meritless case.

A recent study ranked Texas 50th among all states in access to high-quality prenatal and maternal care. But sure, go ahead and make it more difficult for women to access medical care. Spare some attention for Texas tomorrow as you consume the news from Fulton County. In the Mifepristone case, Judge Kacsmaryk tried to prevent or at least delay his hearing date from becoming public. That’s not how our judicial system works, and the media took him to task for it, forcing him to make the date public. Make sure you share information about this case with those around you who may be unaware of it. The Judge may be allergic to sunlight, but democracy thrives on it.

We’re in this together,

Joyce

p.s. Every time I add the share button to one of these posts, I really hope you will share. This morning, I received an email from one of my husband’s law partners from years ago, before Bob became a judge. Our friend had shared the newsletter with many of their partners and some other friends. I was touched and also honored that he recommended the newsletter, and I hope you’ll do the same. Whether it’s the discussion on our forum, or the sharing of information that I hope you find useful in the newsletter itself, democracy really does depend on civil discourse, and we’re doing our part here.