Catch Up

A few things to catch up on tonight. I’ll keep this brief because important things are coming at us from a lot of different directions this week. There are a few items tonight that deserve a flag.

First up, 14th Amendment challenges designed to keep Trump off the ballot. Last night we discussed the Colorado proceeding, which began today, and the Minnesota Supreme Court hearing later this week. While I continue to think courts will be inclined to let the voters decide the election rather than removing Trump from the ballot, there are a number of these pending, and it’s going to be important to stay on top of them and the reasoning courts use in deciding them.

Lawfare has created a tracker that lets you see the status of every case and get information on the proceedings. It’s a fantastic tool that you’ll find here. They write, “Beginning with a case in Florida in February 2023, voters and advocacy groups have brought many Section 3 challenges in state and federal courts across the country, attempting to block Trump’s name from appearing on ballots for state primaries and caucuses before the national election begins. This page is intended to track which states have active Section 3 litigation to remove Trump from the 2024 ballot. At the bottom is a selected reading of Lawfare's coverage on the issue. Note that the procedural posture and legal theories behind these challenges vary greatly, and a dismissal in any particular action does not necessarily bar other challenges from being brought in that same state.”

Second, an update on Texas Attorney General Ken Paxton, who managed to avoid impeachment earlier this year. We discussed him in May, when members of his own party became so outraged by evidence of his conduct that they brought articles of impeachment against him. Paxton used his office to help a political donor and asked state budget writers to take on responsibility for paying a $3.3 million settlement owed to former staffers who accused him of retaliation, among other incidents characterized as years of misconduct. The impeachment seemed to be on track in September, but Paxton was able to politic his way out of it.

Even as he avoided political accountability, we discussed one other problem Paxton faced, a state criminal prosecution alleging he duped investors in a tech startup. That indictment stems from 2015. (Yes, you read that date right!) Paxton has avoided trial all these years with a series of procedural maneuvers that make Donald Trump look like an amateur at the delay game. Now, state District Judge Andrea Beall in Houston has set an April 15, 2024 trial date.

The allegations that Paxton defrauded investors in a Texas startup called Servergy around 2011 are more than a decade old. The prosecution alleges that Paxton, a state lawmaker at the time, failed to disclose to investors that he was being paid to recruit them. Paxton would face a sentence of five to 99 years in custody if convicted. And, he is still under federal investigation in connection with some of the impeachment charges.

Eight years of delay, closer to nine by the time the case goes to trial, is a real miscarriage of justice. There were certainly some legitimate delays incurred by motions Paxton filed over issues like where in the state the case could be tried, but the snark in this exchange on X was satisfying:

Third and last for tonight is the prosecution of a Huntsville, Alabama, man that commenced in the Northern District of Georgia last week. Arthur Ray Hanson, II, was indicted for making threats against Fulton County District Attorney Fani Willis and Fulton County Sheriff Patrick Labat on account of their prosecution of Donald Trump.  Hanson had an initial appearance in Huntsville and will be arraigned in Atlanta on November 13, 2023.

The U.S. Attorney in Atlanta had this to say about the case: “When someone threatens to harm public servants for doing their jobs to enforce our criminal laws, it potentially weakens the very foundation of our society. Our office will labor tirelessly with our federal, state, and local law enforcement partners to help ensure that law enforcement officials are free to serve our communities without the threat of physical attack.” The Atlanta office prosecuted the case because the threat was interstate—made by Alabama resident Hanson against Georgia officials. Others inclined to make threats would do well to heed the commitment the federal government is making clear here, including a certain former president, who, while not (yet) subject to a gag order in Fulton County can still be charged with violations of law, as three prosecutors’ offices have now established.

Hanson threatened both Willis and Labat with violence in the voicemails he left for them. In his message for the Sheriff, Hanson said: “if you think you gonna take a mugshot of my President Donald Trump and it’s gonna be ok, you gonna find out that after you take that mugshot, some bad shit’s probably gonna happen to you;” “if you take a mugshot of the President and you’re the reason it happened, some bad shit’s gonna happen to you;” “I’m warning you right now before you fuck up your life and get hurt real bad;” “whether you got a goddamn badge or not ain’t gonna help you none;” and “you gonna get fucked up you keep fucking with my President.” His message to Willis included statements like “watch it when you’re going to the car at night, when you’re going into your house, watch everywhere that you’re going;” “I would be very afraid if I were you because you can’t be around people all the time that are going to protect you;” “there’s gonna be moments when you’re gonna be vulnerable;” “when you charge Trump on that fourth indictment, anytime you’re alone, be looking over your shoulder;” and “what you put out there, bitch, comes back at you ten times harder, and don’t ever forget it.”

Hanson is charged with violating 18 U.S.C. §875(c), which makes it a crime to transmit a threat to kidnap or injure another person in “interstate commerce”—the interstate requirement is satisfied here because the calls were made from Alabama to Georgia. As with most crimes, the elements the government has to establish, other than this jurisdictional requirement, involve the conduct the defendant committed (“actus reus”) and his state of mind at the time (“mens rea,” sometimes shorthanded as “intent”). The language the government uses for charging mens rea is instructive here. They allege the defendant: “consciously disregarding a substantial risk that his communication would be viewed as threatening violence, knowingly transmitted a communication…”

This helps us understand when a threat, at least an interstate one, crosses over the line between bad behavior and criminal behavior. Here, you see, the kind of statements Hanson allegedly made, coupled with the government’s allegation that it will prove he knew he was making the communications (there wasn’t a mistake or some sort of accident involved) and that he disregarded the risk they would be viewed as threatening violence. That’s the standard here—the government doesn’t have to prove Hanson intended his words as threats. They might well be able to prove that given their content, but they need only show that there was a “substantial risk” the recipients would view the messages as “threatening violence.”

Beyond the Hanson case, this helps us understand when, subject to a gag order or not, threats made to witnesses, court employees, politicians or what have you can amount to a crime. The threat must involve violence and the speaker must, at a minimum, disregard the risk that the recipient will perceive it that way. That sets the standard for evaluating comments the former president makes and helps us understand that while his comments about Joe Biden today were awful, they were also, at least evaluated against this particular criminal statute, lawful. For the moment.

Here is what Trump posted on social media after Judge Chutkan reimposed the gag order in the District of Columbia case. Trump threatened Biden with prosecution, should he win again.

This sort of comment certainly bears on Trump’s fitness for office. But it neither violates Judge Chutkan’s gag order nor qualifies as a criminal offense. However, the Hanson prosecution gives us a clear marker for what kind of conduct would cross that line and gives us a standard for evaluating future comments and posts the former president makes. It’s still hard for me to believe we’re talking about a former president of the United States doing this sort of thing.

Just think. It’s only Monday.

We’re in this together,

Joyce