The Week Ahead

February 25, 2024

More happening in Alabama

This week, both houses of the Alabama legislature are expected to take up measures to exempt IVF treatment from Alabama’s constitutional provision that says life begins at conception. It’s happening because of last week’s decision by the Alabama Supreme Court that embryos are children. That led to a shutdown of IVF treatment because it involves post-conception embryos that may be destroyed once a family has the number of children it desires or in cases of genetic defects. Accidents can happen to the embryos, which is what led to the lawsuit that started all of this. The hope is that the new law, once passed, will permit IVF treatments in the state to start up again. Alabama’s attorney general, Steve Marshall, has already said he won’t prosecute providers or families over IVF treatment.

Alabama Democrats should stand up for women here and insist that the provision that is adopted also protects women experiencing ectopic pregnancies and clarifies that they can receive lifesaving medical care without risk of prosecution. It involves the same situation—an embryo that isn’t implanted in a uterus, which is the line Alabama Republicans have said they are drawing here. Ectopic pregnancies are not viable and pose a serious risk of death to the mother, exacerbated if prompt care following diagnosis isn’t available. And women who receive treatment can go on to have successful pregnancies. If Alabama is going to make an exception for one kind of embryo that is outside of the uterus, they should apply it across the board to protect women’s health and their ability to have a family. The Democratic legislative delegation should insist on a provision that does that in the new IVF law and offer amendments if it is not included. If Republicans won’t go along, there should be a national focus on their refusal, like the one that has consumed the country since the Alabama Court issued its decision.

On Friday, Former President Donald Trump said he would “strongly support the availability of IVF.” He called on Alabama lawmakers to guarantee access to the treatment. So, here we are. But once you make an exception that permits some embryos/fetuses to be discarded after conception, you’ve conceded that there can be exceptions to the fetal personhood law, and you’re only arguing over the details. Will we only protect the families who can afford highly expensive IVF procedures? What about protecting the lives and future fertility of women experiencing tubal pregnancies like the Texas woman who almost lost her life recently before she was able to get emergency surgery? What about victims of rape and incest? Or women, whose situations we followed, like Brittany Watts in Ohio, who couldn’t get an abortion despite her doctor’s advice and narrowly avoided prosecution following a miscarriage at home. Like Kate Cox, the Texas mom of two who was faced with losing her fertility if she couldn’t terminate a non-viable pregnancy and ultimately had to go out of state to receive medical care.

Uncertainty in state laws is a problem for women across the country. When it’s unclear whether state law authorizes an emergency procedure—and it almost always is—medical professionals err on the side of caution to avoid the risk of lawsuits and prosecution. That’s what happened in Alabama last week when IVF providers shut down. We need clear laws that authorize doctors to use their discretion to protect the health and lives of their patients under the new and restrictive laws adopted in much of the country.

There are questions here about whether simply adopting a new law would be enough to “re-legalize” IVF, since the part about life begins at conception is in Alabama’s Constitution. Leaving that aside, if the legislature moves forward, they could take an actual pro-life stance here. I won’t hold my breath, but a law that protects IVF, as well as women in similar situations where an embryo isn’t implanted in the uterus or to protect future fertility is a legitimate ask of conservative legislators. If you live in the state, call your representatives tomorrow as these bills circulate on Goat Hill.

Trump’s legal issues will continue to dominate the news this week. We’re still waiting on SCOTUS on the presidential immunity appeal. If, as seems likely, one or more Justices are writing dissents to a decision by the Court to deny the stay or decline to take the case, we won’t hear from the Court until they are done writing. It seems less likely a Justice objecting to a decision by the Court to hear the case would take so long to write a dissent, since their goal would in part be to avoid further delay.

There are big hearings related to Trump in both the Fulton County case and the classified documents case in Florida this week.

Fulton County

Judge Scott McAfee will pick this back up Friday, March 1, and hear arguments from the parties in the disqualification fight over Fani Willis’ continuing participation in the case. The evidence that Willis has a financial interest in the case that merits her disqualification—that’s the legal standard under Georgia law—is thin. If that was all this was about, the Judge might have already ruled.

But this has morphed into a controversy about whether Willis has lied to the court about the timing of her relationship with co-counsel Nathan Wade. Lawyers, and especially prosecutors, have a duty of candor with the courts. If anything Willis has said is untrue it could subject her to disciplinary action by the Georgia Bar. Lying under oath is covered by perjury statutes. Willis is, of course, well aware of all of this and has vigorously defended the truthfulness of her testimony.

Willis and Wade both testified that their romantic relationship began after she brought him on board to manage the prosecution and that it ended last summer. They pushed back against allegations Willis benefited financially from the hire, testifying the two roughly split the cost of time they spent together, including vacations.

Just when it looked like the matter might be coming to an end last week, lawyers for defendant Michael Roman came forward with Wade’s cell phone records, which they claim establish that he was in frequent communication with Willis and visiting her repeatedly before she hired him for the case using geolocation data. Trump’s lawyers got involved as did other defendants.

There is significant dispute over what the records actually show, with Willis arguing the data doesn’t add up to the defendants’ claims. The pleading filed by the DA’s office suggests that even if the records are admissible, a point they dispute: “the phone records simply do not prove anything relevant. The records do nothing more than demonstrate that Special Prosecutor Wade’s telephone was located somewhere within a densely populated multiple-mile radius where various residences, restaurants, bars, nightclubs, and other businesses are located. The records do not prove, in any way, the content of the communications between Special Prosecutor Wade and District Attorney Willis; they do not prove that Special Prosecutor Wade was ever at any particular location or address; they do not prove that Special Prosecutor Wade and District 8 Attorney Willis were ever in the same place during any of the times listed in Supplemental Exhibit 38; and, in fact, on multiple relevant dates and times, evidence clearly demonstrates that District Attorney Willis was elsewhere, including at work at the Fulton County District Attorney’s Office AND VISITING THE THREE CRIME SCENES … ”

Judge McAfee will face the task on Friday of deciding whether the evidence is admissible and, if so, what it means. And ultimately, whether any of the details about Willis’ personal life that have been revealed have any bearing on her ability to stay with the case.

Part of the debate over admissibility centers on how the defendants got their hands on Wade’s cell data. It turns out that Roman’s lawyer was able to obtain the records by issuing a subpoena to AT&T, Wade’s cell phone carrier. While that may seem surprising to those used to the rules for prosecutors, who must obtain a search warrant for cell data because the Fourth Amendment prohibits the government from searches/seizures without a showing of probable cause, the rules are different for private parties. In an August 2022 letter to the Federal Communications Commission (FCC), AT&T set forth its “policies and practices regarding the retention and sharing of consumer location information,” which included this: “[U]nless a state law prohibits such disclosure, AT&T Mobility is required to respond to valid subpoena demands from civil litigants or criminal defendants for call detail records, which in the case of AT&T Mobility may include location information.” Roman’s lawyer obtained a subpoena and AT&T provided her with the data.

Whether or not the Judge believes that the details of the relationship are relevant to the disqualification issue, Willis’ personal life has become a distraction from the core allegations here, which are that Trump and his co-defendants tried to override the decision made by Georgia voters, acting illegally, as when Trump called Secretary of State Raffensperger to ask him to “find” him the number of votes he needed to be declared the winner of the election.

The case isn’t about Fani Willis. It is about election interference. But the defendants found this opening and are taking advantage of it. Prosecutors have to be scrupulous about their behavior—when we say they must avoid even the appearance of impropriety (as must judges and other public servants), this is why. All of this plays into Trump’s delay strategy. The best hope is that the Judge will resolve the issue one way or another promptly following the hearing.

Mar-a-Lago

Also on Friday, Judge Aileen Cannon will hold a scheduling conference with the parties in the Mar-a-Lago case, and she apparently anticipates it will take some time.

We may learn whether Judge Cannon is serious about the May trial date, which seems unlikely given her slow pace in resolving discovery motions, which remain pending. But whether she will set a new trial date or let the current one stay on the books, at least for now, remains to be seen. If she were to reset that trial for, say, July, that could interrupt the anticipated rescheduling of the federal election interference case before Judge Tanya Chutkan, even if the Supreme Court promptly resolves the immunity appeal. And even if Judge Cannon keeps the May date, that is no guarantee the case would go to trial then—nothing prevents her from deciding down the road the case isn’t ready for trial then.

That’s particularly likely after Trump filed a series of motions Friday asking her to dismiss the prosecution. One of them is based on presidential immunity. Although the argument is a tough sell in a case that is largely about what Trump did after he left the presidency, including obstructing justice, an appeal process could lead to a stay of any further proceedings in the trial court while it’s underway, and we know how delay works in Trump’s favor.

The motions aren’t particularly strong, many of them rehashing arguments we’ve seen Trump raise (and some courts reject) in other proceedings. Lots of motions, lots of smoke. Combined, what they add up to is an extraordinary vision of an all-powerful presidency that would permit a former occupant of the White House to walk off the lot with highly classified secrets and no limitation on what he could do with them in the future. While this cannot be what the Founding Fathers intended, in the hands of Judge Cannon, there is the potential for more delay and perhaps, more bad rulings and appeals. Trump’s strategy of preventing trial before the election seems to be well underway here, unless the Judge does an abrupt about-face this week.

More

The Senate is expected to start impeachment trial proceedings against Homeland Secretary Alejandro Mayorkas after senators return to Washington on Monday, with House impeachment managers presenting the article of impeachment to the Senate. Senator Patty Murray (D-Washington) will preside. Democrats control the house, meaning there is little chance the impeachment will succeed. In fact, a group of Republican senators wrote to Mitch McConnell, warning him they thought Democrats would try to short-circuit the process, perhaps with a vote to table the articles of impeachment and end the trial without evidence and a vote. The group signing the letter included Senators Mike Lee, Ted Cruz, J.D. Vance, Josh Hawley, Tommy Tuberville, and Marsha Blackburn.

Lots of balls up in the air, and we are now less than a month out from Trump’s first criminal trial in Manhattan. Hunter Biden is still scheduled to testify before the House Oversight Committee on Wednesday. And a partial government shutdown could begin Friday, with the remainder a week later, unless House Speaker Mike Johnson kicks the can down the road again, or manages to pass a budget—something he was supposed to do by October 1 of last year. It’s going to be a busy week. As they say, may you live in interesting times.

We’re in this together,

Joyce