Snarkier Takes Tonight

This morning at about 10:00 a.m. Central Time, I wrote this:

If you’re feeling like you can’t keep up, you’re not alone. There is an overwhelming amount of news about the Trump criminal prosecutions right now. Tonight, I’m addressing the Mar-a-Lago case and the Manhattan DA’s case, but tomorrow we expect Judge McAfee’s ruling on defense efforts to disqualify Fani Willis as well as who knows what else?

I’m going to try to limit myself to giving you the toplines tonight so you can feel like you’re staying up to speed in a time-efficient way. But I want to reassure you that it’s not just you—I’ve talked to any number of reporters and political and legal analysts who are exhausted by the pace of the news right now. Also, shouldn’t we take a moment to reflect that this is all happening because the Republicans have picked a crazy criminal to be their presidential candidate? Seriously, that’s worth taking a step back for, something we don’t do often enough.

After those two paragraphs, I got distracted as things started heating up and the day just kept getting worse. Trump is exhausting; the Republicans are exhausting. But this is, unfortunately, the world we are living in right now, and we cannot let anti-democratic forces win simply by exhausting us.

The hits kept coming all day, largely in the form of added developments in Florida and New York, but really across the board. So, let’s try to get caught up without getting worn out. You’ll forgive me if the takes are a little bit hotter (and probably snarkier) than usual, but it’s been one of those days.

Mar-a-Lago Hearing

There is still no firm trial date for the Mar-a-Lago case. The probability that Judge Delay can have this case ready to go to trial by the May date on her schedule is about the same as the probability Donald Trump has ever read the Constitution from cover to cover. Today’s hearing came and went without any clarification from the Judge as to when she intends to try the case. That’s probably because her ideal trial date is never.

But after her ruling today on the “unconstitutional vagueness” argument we discussed last night, there’s even more to worry about in this case than delay if she ever manages to get to trial.

The Judge’s ruling was virtually incomprehensible, even to those of us who speak “legal” as our native language. If you tried to write something that was deliberately dumb, this sentence would be it.

Trump’s motion didn’t raise any argument that warranted “serious consideration,” and the court’s determination was made before the “lengthy oral argument” she heard today, unless she typed her written opinion up on a 15-minute break. I don’t know for certain what this means: “the overall question presented depends too greatly on contested instructional questions about still-fluctuating definitions of statutory terms/phrases as charged, along with at least some disputed factual issues raised in the motion.” It looks like the kind of sentence a law clerk might decide was insufficiently precise for anyone to understand, which could be its appeal here for Judge Cannon. But I’m afraid of what I think it means.

The good news here is temporary. It’s what I’d call an ugly win for the government. The Judge dismissed the vagueness argument—but just for today. She did it “without prejudice,” which means that Trump’s lawyers could raise the argument again later in the case. In fact, the Judge seemed to do just that in her order, essentially inviting the defense to raise the argument again at trial. She says the motion turns at least in part on “disputed factual issues.” That’s significant because those disputed issues get aired at trial when the evidence is presented to the jury. If the Judge had ruled against the government today, the Special Counsel could have appealed. But that’s not the case if, after today’s ruling in the government’s favor, she permits Trump to resurrect the motion at trial. She could grant the motion to dismiss the case then and at that point, with very rare exceptions (that the Judge would be in a position to prevent), the government can’t appeal. That’s because once a jury has been empaneled, double jeopardy “attaches” and prevents the government from retrying the defendant on the same charges if he’s acquitted, which is what would happen if the Judge granted a motion to dismiss at that point and before a jury rendered a guilty verdict. That’s the nightmare scenario here.

If Trump is convicted but wins the White House again, he could tell his Attorney General to terminate the federal prosecutions or stop defending a conviction on appeal. But that would raise a lot of eyebrows. It would be much easier to have a district judge dismiss the case, which would lead to an acquittal on all charges. The theory for that acquittal here is crazy, but the Judge has been willing to give it far more credence than it deserves in the process of temporarily dispensing with it. Trump’s vagueness argument should, at best, apply only to the retention charges, not to the obstruction charges. But, this is Judge Cannon.

None of this makes any sense.

We do need to have a little legal background here, so bear with me (or just skip straight to the next section if you’ve had enough for one day). There is a strong presumption that criminal statutes are constitutional. In a 1983 case, the Supreme Court, relying on decades of precedent, held that in order to be constitutional, statutes need only state with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”

The statute Trump is charged with violating, 18 U.S.C. 793(e) makes it a crime for anyone who, “having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.” Trump is charged with the last clause, willfully retaining national defense information and failing to deliver it to the National Archives. Virtually everyone charged under this provision makes the vagueness argument—and loses.

Courts evaluate the constitutionality of statutes “as applied” to an individual defendant when they are challenged for vagueness—that means that the defendant challenging the statute has to show that it is vague as applied to him. Here, Trump was extensively advised about what the law meant by his own White House Counsel when he took office. He was told he needed to return classified material before he left the White House by that same office, and was subsequently told by the National Archives folks, DOJ in its subpoena, and his own attorneys that he had to return the documents. It’s hard to imagine a less vague scenario. Trump knew what the law was, he just didn’t want to comply with it. There was no reason for Judge Cannon to waste so much time entertaining this ridiculous motion.

A Bombshell in Manhattan

After today’s events, it’s very unlikely that the hush money payments as election interference case will go to trial on March 25 as scheduled. That’s not the result of anything the District Attorney is responsible for. Instead, it involves the U.S. Attorney’s Office for the Southern District of New York, which turned turned over about 31,000 pages of records to Donald Trump’s lawyers, pursuant to their subpoena, just yesterday.

That’s a lot of pages, and the U.S. Attorney’s Office has said there are still more coming. Trump’s lawyers have asked for a three-month delay to get their arms around this volume of new material. The DA agreed that a delay of one month was necessary. He advised the court that he had asked DOJ for the material a year ago, but they declined to provide it. Trump’s lawyers issued a subpoena for it more recently and when the U.S. Attorney’s Office asked for repeated extensions, Trump’s folks agreed—no surprise.

The U.S. Attorney’s Office has declined to comment about the situation.

Here’s the technical legal position the case is in right now: Trump has asked for a dismissal of the case, or at least a continuance, because of discovery violations. BUT, it’s the DA who owes Trump discovery, not the U.S. Attorney’s office. And the DA is not part of and has no control over the federal prosecutors across town and what documents they give up when requested to. So the DA’s argument, that they’ve done nothing wrong but are willing to agree to a 30-day continuance, seems like an appropriate concession, especially given their assessment that only an extremely limited amount of the documents have bearing on this case.

We don’t really know what’s going on yet. Why didn’t the U.S. Attorney’s office turn over the documents when the District Attorney asked for them a year ago? Why didn’t they act promptly when Trump subpoenaed them instead of leaning into the delay? It’s not like federal prosecutors across town in Manhattan didn’t know there was a March 25 trial date and realize that this would interfere with it. So, we’re left with more questions than answers. There may be fair answers to these questions. Given the gravity of the matters at stake here, it would be nice if DOJ came forward with an explanation. It wouldn’t be surprising if the court demanded one.

Manhattan DA Alvin Bragg has done the right thing here, really the only thing he could do, offering additional time for Trump to review the new documents but trying to limit the amount of delay. Trump will contest Bragg’s suggestion that only a very limited amount of what has been turned over is relevant to the case. Bragg told the court that it’s just 172 pages of witness statements, which suggests there may be material with bearing on the veracity of some of the DA’s key witnesses—Michael Cohen or Alan Weisselberg for instance. Expect Trump to contest that. The timing of trial is now up to Judge Merchan.

Trump gets all the breaks. It’s frustrating.

And this is also a reminder that completely unexpected delays come up even when trials look like they are good to go. The Supreme Court may well get its apparent wish—letting the voters decide whether Trump will be the next president with no Trump matters progressing to a verdict before the election.

Tomorrow: Trump’s advice of counsel defense in Manhattan

Also in the Manhattan DA’s case, Trump had filed a motion styled, “PRESIDENT DONALD J. TRUMP’S NOTICE CONCERNING HIS INTENT TO RELY ON AN ADVICE-OF COUNSEL DEFENSE.” But then, in the next breath, he told the court it wasn’t really his intent to rely on the advice of counsel defense. You’ll be shocked to learn that Trump wanted all the benefits of the defense, but none of the consequences. The benefit is the ability to argue to the jury that your lawyers told you it was okay to do whatever you did, so you lacked the state of mind necessary to commit the crime and they shouldn’t convict you. The consequence is that to put on that defense, a defendant has to waive the attorney client privilege, so the prosecution gets access to all of the defendant’s communications with their attorneys. Trump wants to argue the former without turning over the later.

Trump’s lawyers argued that “we emphasize that there is a marked difference between the commonly referred to “advice-of-counsel” defense and the defense that President Trump expects to raise at trial—part of which will be that President Trump lacked the requisite intent to commit the conduct charged in the Indictment because of his awareness that various lawyers were involved in the underlying conduct giving rise to the charges.” That’s some mighty fine needle threading they’re doing, and it will be interesting to see if the Judge permits Trump to argue that the presence of his lawyers kept him from having the intent to commit a crime without requiring him to waive the privilege. Feels like having your cake and eating it too, something Trump has all too frequently gotten away with in court.

In addition to not wanting to pay the freight, Trump might also have a problem making out the elements of an advice of counsel defense. To get that benefit, a defendant has to establish that he:

• disclosed all of the material facts to his attorney

• obtained advice that the specific conduct he now argues he can’t be criminally charged with was legal or appropriate

• can prove he relied on the advice in good faith and that he followed it

The Judge gave the DA until this past Wednesday to respond to Trump’s motion, but because there is a two-day period to review pleadings for redactions, it will only become public tomorrow. We’ll learn what the DA has to say then.

Also Tomorrow

The Supreme Court will issue opinions in the morning.

Trump

Trump attended the Mar-a-Lago hearing today. Defendants are entitled to do that, but you don’t typically see the client in this sort of preliminary motion involving purely legal arguments. Trump has been far less likely to attend his own legal proceedings than most litigants, even staying away from his first defamation trial with E. Jean Carroll although he showed up for the second one. He’s repeatedly skipped proceedings in the criminal cases too. It’s unclear why he decided to show up in court today, but it’s hard to avoid the sense that he wanted to make sure the Judge had a stark reminder of what this case is about—as if she needed that.

There was also good news today. The Boss endorsed Joe Biden. File that under the category of things that make you smile, and hope that there’s a Taylor Swift/Bruce Springsteen crossover song about getting out the vote in our future!

We’re in this together,

Joyce