Not a quiet Thursday
A surprising number of things happened today for what should have been a quiet Thursday in October. That seems to be true more days than not with a former president, his party’s frontrunner presidential candidate, facing four criminal indictments and mid-trial in a civil fraud case that will end his ability to conduct a real estate business in the state of New York. But today was different—not only were there a lot of developments, they were highly significant. Trump has asked a federal judge in Washington, D.C. to dismiss the criminal prosecution against him there. He asked Judge Aileen Cannon to delay his criminal trial in Southern Florida until after the election. He moved to dismiss the New York state criminal case against him, the one that involves payments to Stormy Daniels, and indicated he would move to stay the ongoing civil fraud trial in New York while he takes an appeal.
We’ll focus primarily on the motion to dismiss the District of Columbia case tonight, but today’s developments were, to put it mildly, significant.
Trump files a motion to dismiss Jack Smith’s election interference case
If this is Trump’s legal team’s best shot, it’s likely to be a swing and a miss, at least in the district court. Trump filed a motion to dismiss the criminal prosecution based on “presidential immunity.” It’s not a frivolous argument, but it’s a flawed one. Leaving the merits of the argument aside for the moment, Trump’s lawyers’ endgame here is to posture the motion so they can take an appeal in advance of trial, an “interlocutory” appeal, if Judge Chutkan denies their motion. That would delay the trial during the time the appeal took. So, unless the Court of Appeals for the District of Columbia, and the U.S. Supreme Court are prepared to move extremely fast, this motion could mean the trial wouldn’t occur before the Republican nominating convention or even before the election itself. The best we can hope for if this happens is that the courts, appreciating the significance of the moment, will act speedily.
Normally, a defendant doesn’t get to appeal a ruling against them on a preliminary motion until after a conviction (if there’s no conviction, no need for the appeal). But immunity issues are one species of issue that are different, and there is substantial case law supporting an interlocutory appeal here. In Nixon v. Fitzgerald, the Supreme Court noted that the Court had twice permitted defendants to take an interlocutory appeal where a claim of absolute immunity was denied. They also noted that “in previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable (on an interlocutory basis).” So, be prepared for delay here.
Aside from the pure value of delay for Trump here, there is a core conservative ideological principle at stake here that Trump’s Federalist Society lawyers may hope will gain traction with the Court. That’s the conservative view that it’s desirable to expand the powers of the presidency at the expense of the other two branches. You may recall that was at the heart of the audition memo Bill Barr wrote when he wanted Trump to make him his attorney general—he made a previously fringe argument about a powerful “unitary executive,” concluding Trump could not be prosecuted for obstruction of justice, not matter the outcome of the Mueller investigation. Of course, Trump liked the bottom line. But the principle has become increasingly popular in some conservative circles. Whether it continues to have currency with Joe Biden in office and the prospect he might win again remains to be seen.
As to the merits of the argument itself, I’ve read the fifty-two page motion, and am not compelled. No matter how Trump’s lawyers try to dress up their argument, at bottom, it is that a president is above the law. And that’s not how our criminal justice system is meant to work. Trump’s lawyers make arguments about what the Founding Fathers intended, about history, tradition, and the text of the Constitution. But they ignore the inexorable fact that the Founding Fathers, while contemplating the need for a system that could deal with a corrupt leader, clearly stated that no man was above the law.
The conduct Trump is charged with does not fall within the core functions of the presidency or even within the remote edges of its periphery, as Trump’s lawyers argue. Trump has relentlessly used privileges and immunities to try and set himself above the law ever since becoming president. It shouldn’t work here.
You can get a sense of the argument Trump’s lawyers make from the outline in their table of contents:
They have to make two basic arguments to succeed. The first is that presidential immunity applies in criminal cases as well as in civil ones. This is an open question that the courts will have to resolve as a matter of law. Trump’s lawyers acknowledge this, writing, “No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act. The question remains a ‘serious and unsettled question’ of law.”
The second one is that if the immunity doctrine does apply in criminal cases, Trump is eligible for its application. This argument is in some way akin to the argument in the removal cases—it’s an argument about whether the conduct Trump is charged with fell within the scope of his duties as president. His lawyers argue that virtually anything a president does qualifies (as opposed to the DOJ view in the E. Jean Carroll case that defaming a private citizen isn’t part of a president’s job—hard to see how trying to steal an election falls within the scope any more than that conduct did), suggesting that what Trump did was within the periphery, perhaps the outer periphery of his duties, but that it still qualifies. Here’s how they headline their argument, “The indictment is based entirely on alleged actions within the heartland of President Trump’s official duties, or at the very least, within the “outer perimeter” of his official duties. As President Trump is absolutely immune from criminal prosecution for such acts, the Court should dismiss the indictment.”
That argument should fail. When Trump discussed the fake electors scheme with his lawyers, made his call to Georgia Secretary of State Brad Raffensperger, and pushed Mike Pence to violate the law and interfere with the Electoral College vote, he was not acting as President Trump, but rather, as candidate Trump. And in the role of candidate, Trump is not entitled to presidential immunity. Presidents have no role in administering state elections. That conduct was criminal election interference, not official duty.
Trump’s lawyers use a curious strategy to try and head off that argument when prosecutors make it. They argue that even if Trump had “malicious or corrupt” motives, that doesn’t serve to deprive him of immunity. They write, “as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide. Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution.”
Perhaps they viewed this as a technical legal argument, a way to keep their client out of prison, but it’s not exactly a rousing endorsement for a political candidate seeking to become the next president of the United States. Next time someone tells you how great Trump is, let them know his lawyers argued he’s immune from prosecution even if he had “malicious or corrupt motives” for what he did. Wow.
Trump’s lawyers characterize the conduct he is charged with in a benign way, as though he was having normal conversations, not ones where he, for instance, asked Georgia Secretary of State Brad Raffensperger to find additional votes for him, just the number he needed to win. To hear Trump’s lawyers tell it, all that “the indictment alleges [is that] that President Trump, while he was still President: (1) made public statements about the administration of the federal election, and posted Tweets about the administration of the federal election; (2) communicated with senior Department of Justice (“DOJ”) officials about investigating election fraud and about choosing the leadership of DOJ; (3) communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it; (4) communicated with the Vice President, in his legislative capacity as President of the Senate, and with other Members of Congress about the exercise of their official duties regarding the election certification; and (5) authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.” Put that way, it all seems trivial and banal. But their hollow rhetorical choices ignore that this is a former president, now charged with conspiracies to defraud the United States, interfere with an official proceeding, and deny people their civil right to vote and have their vote counted.
Trump’s lawyers neglect the fact that when he did these things, he was trying to enlist people in his conspiracies. No matter how Trump’s lawyers try to dress it up and normalize it, it’s criminal conduct. Sure, Trump can have conversations with people, but when they’re about trying to change the results of an election he’s lost, they cross the line and are no longer within the official governing duties of a president, not even within the outer edges of its periphery.
Trump’s lawyers also argue that impeachment is the only remedy that can be taken against a president, contorting the text of the Constitution to suggest a president cannot be prosecuted unless articles of impeachment result in a conviction in the Senate. Even Senate Minority Leader Mitch McConnell noted the fallacy in the argument that impeachment is the sole remedy for presidential misconduct. Following January 6, in a fiery speech laying responsibility at Trump’s doorstep, McConnell noted "President Trump is still liable for everything he did while in office. He didn't get away with anything yet. We have a criminal justice system in this country.” Impeachment or not, while DOJ policy (not law or Constitution) prohibits prosecution of a sitting president, that prohibition does not apply once a president leaves office.
Also today in the District of Columbia case, a group of media organizations including the New York Times, the Washington Post, C-SPAN, Politico, and others asked Judge Chutkan to televise the trial. In their motion, they wrote, “As the U.S. Supreme Court observed over four decades ago, in recognizing a First Amendment right for the public to attend criminal trials, ‘[t]o work effectively, it is important that society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing people to observe it.’…Since the founding of our Nation, we have never had a criminal case where securing the public’s confidence will be more important than with United States v. Donald J. Trump. The prosecution of a former President, now a presidential contender, on charges of subverting the electoral process, presents the strongest possible circumstances for continuous public oversight of the justice system.” No word yet on how Judge Chutkan will proceed.
Key Witnesses emerge in the Fulton County DA’s case
Unlike federal cases where prosecutors have nationwide subpoena power, state prosecutors have to jump through extra hoops to obtain testimony from out-of-state witnesses who don't cooperate voluntarily. And we learn some very interesting details because they have to do this. Fulton County prosecutors had to apply for a “certificate of need” to request the testimony of six out-of-state witnesses for the upcoming trial of Kenneth Chesebro and Sidney Powell. They include Lin Wood, Boris Epshteyn, and four lesser known individuals, James DeGraffenreid, Greg Safsten, Lawrence Tabas, and Aaron Vick. A certificate of need has to be approved by a judge in the witness’s state of residence. Once approved, it functions just like a subpoena, securing the witness’s presence for testimony at trial. Resorting to this process suggests these individuals are not cooperating and will be hostile witnesses at trial.
In requesting the certificates of need, prosecutors revealed some of what they expect these witnesses to be able to testify to. They expect Epshteyn to testify about a November 2020 press conference with Powell, Rudy Giuliani and others in which Powell claimed Dominion voting machines could flip Trump votes to Biden. Epshteyn was also in communication with Chesebro, as well as with John Eastman and Giuliani ahead of January 6. Lin Wood and Aaron Vick are expected to testify about a meeting at Wood's plantation where Powell drafted a memo that called for seizing Dominion voting machines. And prosecutors said DeGraffenreid and Tabas will testify that Chesebro was involved in coordinating fake electors in Nevada and Pennsylvania.
Jury selection starts in just over two weeks.
A smoking gun in the NY AG’s fraud case
An interesting document was introduced into evidence today in New York Attorney General Letitia James’ fraud case against Trump and the Trump Organization. It was a marked-up version of the Trump Organization's 2014 statement of financial condition. The document included a handwritten notation by Trump Organization controller Jeff McConney: "DJT TO GET FINAL REVIEW." That notation will make any effort by Trump to suggest he was not responsible for final approval of the statements implausible. It’s an excellent piece of evidence.
Trump can’t cheat in New York
As Forbes removes Trump from the list of most wealthy Americans, a position he coveted, the evidence that’s unfolding in the New York Attorney General’s fraud case against him confirms his supposed wealth was…well, dramatically inflated.
In an effort to prevent Trump from trying to protect some of his assets so they won’t be available to pay the judgment against him that’s coming, the Judge quietly entered an order, with no public fanfare. The order requires additional inspection of Trump’s finances, and prohibits any of the defendants from moving assets without first disclosing their intentions to the court. Trump and his co-defendants must provide the monitor in the case, a former federal judge, with “advanced notice” prior to “any anticipated transfer of assets or liabilities to any other entity.” They must also give her notice of any new business certificates, modification of any existing contracts, or plans to create a new business entity that isn’t a defendant in the case or distribute rights from any existing entity. It’s a full oversight plan that the Judge appears to believe is merited, given the expansive evidence of ongoing fraudulent conduct by the defendants in the case.
A footnote here: Trump claimed Mar-a-Lago was undervalued by the Palm Beach County property appraiser, who set its taxable value at $18,000,000, a number that has surfaced in the fraud case. Trump claims it’s actually worth $1,000,000,000. Jared Moskowitz, who represents Palm Beach in the House of Representatives, wrote a letter to the county appraiser, requesting that Trump pay taxes on his self-described “real” value of the property.
Trump tries to delay his trial in Florida
Trump has asked Judge Aileen Cannon, in the Mar-a-Lago documents case, to delay his trial until after the 2024 election. He has complaints about the classified discovery process, and claims the special counsel was not candid when he said everything was ready for prompt turnover.
It’s not unusual for discovery issues to arise. But the notion that Trump is somehow entitled to nine extra months—giving him a trial date in December of 2024—because of an issue that is known in October of 2023 is right on the edge of frivolous. There is plenty of time to resolve any issues that actually exist. We’ll see how Judge Cannon handles the request.
The outstanding question in the Mar-a-Lago case
Even following Trump’s indictment on charges of mishandling classified information and obstructing the investigation, there is a major question we don’t know the answer to: what did Trump do with the documents he retained? There could be good reasons for the government to avoid public revelations in this area. The intelligence community might prefer some opacity about the potential compromise of any classified information. Or perhaps the government had no evidence of Trump acting to pass on documents or information.
We are not closer to answering that question tonight, but ABC has reporting, based on two confidential sources, that demonstrates just how careless Trump was with highly sensitive information he obtained while president. ABC reports that after leaving the White House, Trump allegedly discussed information about U.S. nuclear submarines with an Australian billionaire who was a member of Mar-a-Lago, in what sounds like an effort by Trump to impress him. Trump provided highly sensitive information about the number of missiles stored in the submarines and their range against Russia. The Australian billionaire is said to have shared the information with others, including more than a dozen foreign officials, his employees, and a number of journalists, according to the ABC report.
Trump, the terminally insecure bully, appears more careless and seeking to impress than intentional here. There is no suggestion he sold the information for profit or traded it for benefit. But as in other cases, his desire to show off is an ongoing danger to national security. The man simply does not belong in the Oval Office, or any place close to it. He cannot be trusted with the nation’s secrets.
The Speakership Debacle
As she does on an almost nightly basis, Heather Cox Richardson, the author of Letters from an American on Substack, cuts to the chase on the demise of Kevin McCarthy’s speakership and the coming race to replace him.
The issue here is about more than just the MAGA caucus that deposed McCarthy. It’s about who House Republicans pick as their next leader, and whether that person was complicit in events that resulted in January 6. Until the Republican party as a whole rejects insurrection and Trumpism, they are not entitled to any legitimacy in the public square of democracy. Too many people find it easy to engage in bothsidesism and convenient to treat them as though they are the Republican party of old—different policy ideas, but with principled views and ultimately willing to put country over party in a pinch. They are not that party. Republicans’ choice to lead them will be telling.
Politico is reporting that Trump is considering a visit to the Capitol early next week, and Trump himself has suggested he is open to taking on the duties of the Speaker, at least temporarily. The audacity that man displays in returning to the halls of Congress while he is under indictment for interfering with official proceedings should be shocking, but as with everything else Trump, it is merely commonplace. The Republican party that permits it to happen has no claim to American values.
Sweet Home Alabama
In 2024, the voice of every voter, every poll worker, every election official, every journalist and commentator, and in a very real sense, every American, will count as those who believe in free and fair elections work together to guarantee one. It’s one thing to choose between two differing points of view, two different policy perspectives. It’s an entirely different thing to be voting in an election where one party is committed to the future of the Republic, while the other has strong elements who are willing to burn it all down.
And of course, when it comes to voting, there are some Republicans who want to put their thumb on the scales by making it more difficult for people who they think will vote against them to vote. Or, as Alabama has done, to dilute Black voting power so that Black voters do not have the opportunity to elect candidates of their choice. Last term, the Supreme Court told Alabama that doing that was unconstitutional and it had to draw new maps for its House of Representatives races. As you know, Alabama declined to comply. The Legislature drew a new map that was as bad as the old one, thumbing its nose at the Justices.
Now, a three-judge panel consisting of two federal district judges from Alabama (both Trump appointees) and an Eleventh Circuit judge (who was a career DOJ prosecutor before taking the bench) has selected a new map drawn by a court-appointed expert that creates a second “opportunity district” that gives Black voters a realistic chance of electing a second member of Congress from Alabama—something the Supreme Court held was warranted by 2020 census statistics.
An interesting detail: The Eleventh Circuit Judge, Stanley Marcus, was appointed to the district court by President Reagan and to the Court of Appeals by President Clinton—echoes of a bygone era and a different political reality. But without regard to who appointed them to the bench, this panel of judges stood for a clear principle: that the rule of law requires a party that loses a case in the Supreme Court to follow the Court’s decision, whether they like it or not. Now, the case will proceed directly back to the Supreme Court on appeal, and it will be up to the Justices to ensure the Alabama Legislature gets the message. Meantime, unless the Court gives Alabama a stay (it did that with the original case), these new, fair maps will be used for the 2024 election. This is all happening just under the wire. Qualifying for the primaries opens in Alabama on October 16.
All of this means we have work to do. I’m committed to arming you with information and understanding you’ll need, here at the intersection of law and politics. Thanks for being here with me and subscribing to Civil Discourse.
We’re in this together,