The Week Ahead

September 24, 2023

There will be a lot going on this week. Some of the key things I’ll be watching for and updating you on include:

• Fulton County District Attorney Fani Willis’ 11th Circuit brief is due Monday in Mark Meadows’ appeal of his failed effort to remove the case to federal court. Meadows lost his attempt to get out of state court in a hearing before federal Judge Steve Jones and filed his appellate brief last week. He will have two days to reply to Willis’ brief once it’s filed. Expect the court to schedule oral argument promptly in this case, although it’s possible for them to rule without it. In a case of such significance, though, they are likely to take the extra time in order to thoroughly review the issues before ruling. The losing party could ask the Supreme Court to hear their case, but unless something unusual happens, look for them to decline.

• Trump owes the court in the District of Columbia a response to Jack Smith’s motion to impose a limited order that would restrain him from talking about the election interference case in ways that could prejudice the jury pool or harm those involved. You can read the government’s full motion here. It includes a fascinating layout of Trump's public statements. Seeing them together gives you the sense that the total patterns adds up to more than just the outrageousness of the individual statements. The government wrote, “The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Trump has relentlessly attacked witnesses, judges and prosecutors. He appears to be doing everything he can to try and speak to what he hopes will be that one future juror who will hold out and prevent him from being convicted.

If granted, a “gag order” might benefit Trump, who apparently can’t listen to his lawyers’ certain advice to quit discussing the case in public. Every time Trump makes a public statement, he seems to be walking a perilous tightrope between confession and additional obstruction of justice. And it’s the public who he continues to place in peril.

• Hunter Biden will have his initial appearance in court on Wednesday in the firearms cases filed against him in federal court in Delaware. Although his last appearance in court, the one where his plea deal with the government blew up, did not go as expected, arraignments are typically routine. Expect him to enter a not-guilty plea to one count of possession of a firearm by a person who is addicted to drugs and two counts of “lying (on the ATF purchase form and to the gun seller) and buying” a firearm. He is represented by experienced criminal defense lawyer Abbe Lowell who has had some successes in obtaining favorable results for his clients.

• Also on Wednesday, newly-indicted New Jersey Senator Bob Menendez will be arraigned on federal public corruption charges in the Southern District of New York. He too has retained Abbe Lowell, who helped him avoid conviction in a 2015 on unrelated charges. Lowell will have a busy day.

• There will be a government shutdown at 12:01 a.m. October 1, the first day of the new fiscal year, if Congress does not pass a new budget before then. Shutdowns are usually about brinksmanship, with continuing resolutions passed hours in advance to keep things moving. Even so, they involve a lot of dislocation of resources and wasted time, as every agency and every office of government engages in planning and the painful process of designating which employees are “essential” and will remain at work, albeit without receiving a paycheck, until Congress does its job, and which are “nonessential” and must cease work. This go-round, it looks like we may be on the verge of a real shutdown. Approximately four million Americans work as either civilian or military employees of the government. Most can look forward to not receiving paychecks until the shutdown is over. Everything from financial markets to your ability to get a passport in time for your next trip may be impacted. Interestingly, though, the work of Attorney General-appointed special counsels, including both Jack Smith and David Weiss, should continue unimpeded because their funding is from a permanent, indefinite allocation that has not been affected during past shutdowns.

• Looking for reason to believe that while the wheels of justice can grind slowly at times they ultimately have impact? Fifty years ago Vice President Spiro Agnew was throwing a fit about members of the press accusing him of misconduct and saying he was unfit to remain in office. He disparaged witnesses against him and maintained he would not resign if indicted. Of course, we all know how that ended. He resigned on October 10, 1973, and pled guilty after DOJ charged him. It seems unlikely Trump will ever have either the decency or shame to plead guilty, but justice is coming for him.

  

With so much going on, seemingly every day, I’m tempted to start writing about “one thing you need to know today.” Unfortunately, most weeks it’s hard to narrow it down, but today I’m going to try it out, because there really is one thing you absolutely must know about coming out of last week, and it involves Trump’s prosecution for mishandling classified documents at Mar-a-Lago.

Molly Michael was a Trump aide who stuck with the former president as his personal secretary after he left the White House. But she quit her job shortly after the FBI searched Mar-a-Lago. She told investigators that the way Trump handled the National Archives’ efforts to obtain the presidential records he retained made her “uncomfortable.”

ABC News reported the story exclusively, saying, “One of former President Donald Trump's long-time assistants told federal investigators that Trump repeatedly wrote to-do lists for her on documents from the White House that were marked classified, according to sources familiar with her statements.” REPEATEDLY WROTE TO-DO LISTS ON DOCUMENTS THAT WERE MARKED CLASSIFIED. I’m sorry to shout. But, the president of the United States used classified material as scratch paper, passing it on to someone who also lacked clearance to handle it. Michael said, “she later recognized those notecards as sensitive White House materials -- with visible classification markings -- used to brief Trump while he was still in office about phone calls with foreign leaders or other international-related matters.”

Interestingly, the FBI didn’t find these items when they searched. ABC reported that Michael turned them over the day following the search after “she found the documents underneath a drawer organizer.” It seems like she chose the role of witness, not a co-defendant. Her testimony is sure to be fascinating as she had personal contact with Trump during key periods of time. That’s more bad news for the former president.

ABC says they were told by sources that “after Trump heard the FBI wanted to interview Michael last year, Trump allegedly told her, ‘You don't know anything about the boxes.’"

That’s the leading candidate for the Republican nomination to become the next president of the United States. The next time someone tells you Joe Biden is old, make sure they know Trump kept stacks of classified notecards that he used for list-writing and, according to reporting, appears to have instructed witnesses to lie about what they knew.

The only real issue in this case is whether the Judge will proceed promptly to trial without entertaining unreasonable delays from Trump and whether she will permit the government to put all of its evidence in front of a jury. We’re still waiting to see if she will ever respond to the government’s request for a Garcia hearing to resolve issues about potential conflicts of interest between Trump’s co-defendants and their lawyers, which the judge continues to sit on.

Here’s what I’m not expecting in the week ahead: someone doing the right thing about Clarence Thomas and the ongoing ethics problem at the Supreme Court. ProPublica is out with new reporting, this time that Justice Thomas attended at least two Koch network donor summits, putting him in the extraordinary position of aligning himself with a political network that has helped to bring multiple cases before the Supreme Court. The Justice attended donor dinners, reportedly to help with fundraising, according to the article.

A spokesman for Koch responded that “The idea that attending a couple events to promote a book or give dinner remarks, as all the justices do, could somehow be undue influence just doesn’t hold water.”

The Justices have not moved to adopt the code of conduct that applies to every other federal judge nationwide to themselves. Congress has made some noise, but it’s clear that it would be difficult for measures to pass, although Democrats have measures in progress. Even if they do, it’s possible that there could be litigation over their constitutionality. In other words, we are nowhere close to restoring honor and ethics at the Court.

Justice Thomas has participated in cases where the network had an interest in the past, including Americans for Prosperity v. Bonta, where he wrote a concurring opinion that concluded the state of California could not collect information about the group’s donors because it would violate First Amendment rights. Thomas said the First Amendment guaranteed a right to associate anonymously. AFP is a powerful conservative/libertarian advocacy group funded by the Koch brothers.

Thomas has so far declined to recuse from this term’s Loper Bright Enterprises v. Raimondo case, in which Koch is involved. In their statement defending Thomas’ participation in their outings, they argued that “Loper Bright is a case seeking to restore one of the core tenets of our democracy: that Congress, not the administrative agency, makes the laws. Cause of Action Institute - which filed the lawsuit in 2020 – is representing family-run fishing companies that the federal government is forcing to pay a tax that Congress never authorized, and that violates our Constitution’s separation of powers.” The case is an effort to undo decades of precedent and limit “federal agencies’ power to issue regulations in areas ranging from the environment to labor rights to consumer protection.” Cases like this are an effort to shut down a regulatory environment that prevents business interests from acting with no checks whatsoever, as opposed to the balancing of interests that occurs in the regulatory process. Frequently, small “family-run” business are offered as sympathetic plaintiffs. But the merits of the case aside, Thomas has what certainly looks like a conflict of interest despite Koch’s disclaimers. In the absence of a code of ethics for the Court, no one can force him to step aside.

Want to do something about this? Vote. And demand ethics and responsiveness from candidates as a condition of getting your vote. The time to start educating ourselves is well ahead of primaries so we’re informed voters about every position on the ballot. Local government matters in our daily lives, and it also creates a pipeline for future top candidates. There’s still time to consider running yourself or to encourage good people to run. Don’t wait for an invitation!

Thanks for being here with me at Civil Discourse through all of this. If you aren’t already, please consider becoming a paid subscriber, which helps me devote more time and resources to this project. But please know that I’m glad you’re here, regardless, and hope we’ll have the opportunity to complete the work of securing the Republic from an audacious and still ongoing attack by people who see government as an opportunity for grift, not one to serve the American people.

We’re in this together,

Joyce