The Week Ahead

September 10, 2023

Monday marks the twenty-second anniversary of 9/11. The three-year-old who sat on my lap and pointed tearfully, not fully understanding, to “my people, my buildings,” on the computer monitor in front of us just turned 25. Although she still remembers, many of my law students are now young enough that they have no memory of that day. Nor does my youngest son, born the following year. That feels like a substantial dividing line between generations to me. An older generation that remembers the two days of empty skies that turned into weeks of looking up every time you heard a plane. And a younger generation that has always taken for granted long security lines and shoe removal at airports.

September 11 and the terrorist attack on our country, which shaped so much of our lives in the following years and continues to, to this day, is now history. We were unprepared, but we responded and came together in remarkable, heartfelt ways. A Boston-based flight attendant who had to drive from Chicago to get home told the New York Times a few weeks later that as she drove, “people had put American flags up on every single overpass all the way from Chicago to Boston.”

That history has a sad echo today. We have not come together. We are deeply divided as a country that has come under attack and continues to be threatened by the tide of Trumpism that continues to have a hold on something like 30% of the country and the white supremacist domestic terror groups that Trump has embraced into the fold. We did not unite during a global pandemic or following an attack on our Capitol itself. It is as if a third of the country approved of the attacks the felled the Towers and carved a cleft into the Pentagon. It’s as if a third of the passengers on Flight 93 supported the hijackers, not their fellow passengers who downed the plane in a field in Somerset County, Pennsylvania, so that no one else—other than themselves—would die.

It is unthinkable. It is the ongoing peril that Trump has opened the country up to, bringing the worst, the fringe groups that serious Republican leaders would not have tolerated a decade ago, into the mainstream. But it is the persistent drumbeat of misinformation that fuels the country’s failure to come together. After the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, committed by homegrown domestic terrorists, the country did come together. We watched as the number of dead grew to 168. We covered our mouths in horror when we learned there was a daycare, and children were among the victims. But while no one in the mainstream condoned the act of terror, it was seen as a one-off, not as part of a dangerous development in our country. It’s clear in hindsight we have never taken the risk seriously enough. We must do so now.

We are in a pivotal moment in this country. It comes at a time when Trump fatigue is high. And yet, it has never been more important to keep events in focus. Democracy truly could die in darkness. We must continue to shine light and find ways to share details. Facts have a way of rippling quietly across the surface and finding a home. Although the popular mythology says Trump supporters are lost, again and again I hear stories—we have some among our own friends and family—of people who began to rethink because a kernel of truth got through to them. That’s what we need at this point, not agreement on everything, just a commitment to the ongoing American experiment.

So, we head into another important week, with four criminal prosecutions and numerous civil cases proceeding against the former president. In a sign of his break with reality, he still refuses to acknowledge that he lost in 2020, and reporting just today on a story about his government-provided post-presidential office in Florida underscores that the people around him still hesitate to refer to him as the former president. The charade that he didn’t lose has to be maintained. With Trump, the ridiculous becomes the expected.

Speaking of ridiculous, George Santos is still a member of the House of Representatives. That, despite the fact that he has been indicted on federal fraud charges. The situation goes to demonstrate the depths of House Speaker Kevin McCarthy’s desperation to hold onto his slim majority as he contemplates impeachment and the impending government shutdown.

A scheduled pre-trial conference in the case set for last week has been rescheduled for late October. The government wrote in a letter to the court that “the parties…continue discussing paths forward in this matter. The parties wish to have additional time to continue those discussions.” That’s prosecutor speak that means, we’re talking about a guilty plea with the defendant. It would be remarkable to have a sitting member of Congress who has acknowledged his guilt and is on the path to pleading guilty still part of the caucus and able to vote. 2023.

There is no indication at present that the former president is contemplating even a remote possibility he might plead guilty. And, in the Fulton County case, a federal judge has rejected Mark Meadows’ bid to remove the case to federal court. Meadows’ failure would seem to doom efforts by Jeff Clarke and some of the fake Georgia electors. Evidentiary hearings on those motions are set for the week of September 18, but it’s likely all over but the shouting. Ditto for Trump if he proceeds, although the cautionary tale of Meadows’ difficult turn on the witness stand should cause other defendants to question the wisdom of this path beyond merely suffering a loss.

Here’s why a motion by Trump would be substantively weaker than what Meadows was able to put forward: Meadows argued that even when Trump was off and acting in his personal capacity, he, Meadows, as the chief of staff, was still acting in his official capacity as advisor. That’s true. If the president decides to go see a football game, he still has to be staffed by people who are at the ready in case of national emergency or more routine business that must be handled. The flaw in Meadows’ argument was that this was not a football game, it was an effort to steal an election, and he was not involved in official duties when he tried to interfere in Georgia’s vote count. The possibility of success for Trump is even more remote. He was acting as candidate Trump, whose case must be tried in state court, not President Trump who would have an argument for removal.

Meadows has appealed to the 11th Circuit Court of Appeals. Local rules in the 11th Circuit permit an appeal to be expedited for “good cause shown.” That means it’s up to the judges. I’d expect the Court to act quickly, as it did when it considered Judge Cannon’s rulings limiting DOJ’s access to evidence following the search at Mar-a-Lago. The 11th Circuit process will be facilitated because Judge Jones ordered a full briefing schedule and held an evidentiary hearing, which gives the Court of Appeals a lot of factual detail they can rely on to make their ruling.

On Tuesday, Fulton County district attorney Fani Willis owes Judge McAfee, the state court judge who will be trying the case, post-hearing briefs from last week’s severance hearing. MSNBC anchor and legal analyst Katie Phang, who was in the courtroom for the hearing, tells me that the judge has questions about the intersection of the removal issue with double jeopardy. In other words, we’re now in the weeds of some incredibly complicated legal minutiae.

There are potential complications because the district attorney still wants to try all 19 defendants together on October 23. The Judge asked how that would play out if some of the defendants had removal petitions pending on appeal on that date. Here’s the heart of the matter: once a jury has been sworn in, double jeopardy “attaches.” Willis only gets one bite at the apple—prosecutors don’t get to try their case a second time, say, because a court of appeals orders a case to be removed to federal court. That’s obviously unlikely here, but it’s not beyond the pale. There are other possible complications as well. The Judge gave Willis the weekend to contemplate the different ways different rulings could impact the proceedings before getting back to him.

Ultimately, it makes sense to sever the 17. It’s a complicated case, and they’re not getting discovery until this week. To avoid due process problems that could make any convictions Willis obtains susceptible to reversal on appeal because defendants were forced to go to trial on such a short timeline, a short delay makes sense. And, as a practical matter, the Judge might be unable to rule on the flurry of pre-trial motions that would have to be resolved for all defendants to proceed in October, with only six weeks between now and the start of trial for the defendants who made speedy trial requests.

We’ll keep our eyes on Georgia this week, while anticipating the possibility of more developments with Jack Smith’s grand jury in Washington, D.C. Recently, they appear to be looking at Trump’s Georgia co-defendant and Kraken lawyer Sidney Powell over allegations of fraudulent fundraising after the 2020 election, based on some of the reporting.

Finally, I can’t close out tonight without thanking all of you who reached out here or on social media when Trump, apparently feeling the heat of the the steady drumbeat of losses in both criminal and civil cases against him, took a cheap shot at the Deputy Attorney General, Lisa Monaco, and included my friend and colleague Andrew Weissmann and me in his post on Truth Social.

It unconscionable for any former president to do this, let alone one who knows there are people in his army of followers who react unpredictably and sometimes violently to his ranting. The Republican Party that continues to condone it is complicit.

It is impossible to see Trump calling the Justice Department “injustice” and baselessly attacking the Deputy Attorney General, the number two official at DOJ, without wondering whether there is any bottom for the party that used to bill itself as the party of law and order, the party that supported law enforcement. Now, it’s a party that condones attacks by its front runner for the presidency in 2024 on private citizens.

Sometimes, and especially with the daily barrage of inane behavior from Trump, it’s easy to lose sight of the forest for the trees. But Trump continues to show us who he is. He is still the person who rode down an escalator and dubbed Mexicans criminals and rapists. He is still the man who made fun of a reporter with a disability, criticized a federal judge over his ethnicity, and stood by, heartless, after he put policies in place that ripped babies from their mothers’ arms at the border. He might as well have been the one wearing the “I really don’t care, do u?” jacket Melania sported on her visit to the border.

I’ve lost track of all the times Trump named, implicitly targeting, people who served our government, like Colonel Alexander Vindman and FBI agent Pete Strzok. Trump relentlessly attacked people who should have been his political partners from the loyal opposition. His refusal to refrain from doing so led to the brutal attack on Speaker Pelosi’s husband. Yet Trump stood silent as an attack was launched on the Capitol with members of the Congress, including those from his own party, inside. And his comments, his unfair, untrue, comments about Georgia election workers Ruby Freeman and Shaye Moss damaged their lives and for what purpose? So Trump could hold onto power. That’s what all of this is about. It’s never about service, and it’s not about making America great. It’s about Trump and only Trump.

There will be verdicts forthcoming in his criminal and civil cases. But there should be no doubt about the verdict in the court of public opinion. Trump wasn’t worthy to serve in the first place and shouldn’t be returned to office. He keeps telling us. The question is whether, when it counts, when they vote, enough Americans will believe him.

We’re in this together,

Joyce

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