The Week Ahead

Year's End December 31, 2023

It’s hard to believe that we’re at the end of 2023, a year where so much happened. After the early years of shock over Donald Trump’s anti-democratic behavior, followed by anguish over whether anyone—other than voters who performed magnificently at the polls in 2020—would try to hold him accountable, 2023 was the year when he was finally indicted. Not just once, but four times. Trump was also held accountable for defamation of E. Jean Carroll, whom a jury concluded he sexually assaulted in a department store dressing room. He faces other civil suits including one by the New York Attorney General that seeks to dissolve the Trump Organization in New York and another brought in connection to January 6. It has been a year! Now we’re on to 2024.

This week, I’ve been reflecting on all of it and on where we go in the year ahead. Most importantly, I want to thank you for being here—for reading my newsletter, for joining the Civil Discourse community, and for taking our values with you and putting them into action. As we close the year, there are now more than 200,000 of you here. The average post gets read more than 250,000 times. I continue to believe we can make a difference. When we look back on 2024, I want to see it as the year we held the line and kept Trump from ending democracy.

Sometimes, with so much going on all at once, it's hard to keep the big picture in focus. But as we head into the new year and also, a week ahead, that is going to be full of legal developments for Trump, it's important to keep in context who he is and what he has done. He is not some benign, doddering guy with an orange spray tan. He is a former president who tried to overthrow American democracy. That's not hyperbole. That's what he did.

When Trump’s third attorney general, Bill Barr, resigned just ahead of Christmas in 2020 to “spend more time with my family,” he left the Justice Department in the hands of two acting officials, acting attorney general Jeff Rosen and acting deputy attorney general Richard Donoghue. Their testimony under oath to the January 6 committee was that Trump ordered them to "just say the election was corrupt and leave the rest to me and the Republican Congressmen.” Even Barr testified under oath that Trump's fraud claims were "BS." But Donoghue told Congress that Trump urged him “to tell people that this was an illegal, corrupt election.”

In Trump’s mind, DOJ was just a political tool he could use to steal the election with some help from buddies when all of his lawsuits failed. When DOJ held the line, Trump resorted to pressuring Pence with the fake elector scheme and ultimately, the violence of January 6, which he refused to put a stop to. Trump was a man intent on only one thing, staying in power at all costs.

Now, he seeks a return to power. And it’s absolutely insane that anyone, let alone half the country, would take him seriously. That’s how we start the new year.

This week there are two major Trump legal issues on the horizon.

Immunity Appeal

The immunity appeal is important because, if Trump wins, the January 6 prosecution in D.C. is over. But that’s not going to happen. Trump’s arguments are weak and grasping. Instead, our focus should be on how quickly the appellate courts will get the case back to Judge Chutkan, so she can move on to trial.

We’ve now seen Trump’s opening brief and the Special Counsel’s opening brief, filed Saturday afternoon. Trump gets to reply by January 3 and then there will be oral argument on the 9th. Of course, whoever loses—and it will be Trump—can appeal to the Supreme Court.

Trump’s argument is precisely what we expected: my four years in the White House turned me into an emperor-king, and I’m untouchable for anything I did during that period of time. The Special Counsel’s brief doesn’t mince words in explaining what a world where Trump wins this appeal would look like. The examples are horrifying:

Trump’s argument is that a president can do anything he wants to do while he’s in office and as long as he says it’s part of the job, there’s nothing anyone can do about it. That includes, as the Special Counsel points out, bribery, false arrests, murder, and ultimately, decimating our national security.

The Special Counsel brief also tags Trump with an inconsistency between this position and the argument he made in an earlier case to avoid the reach of the law. In Trump v. Vance, where Trump sought to avoid a grand jury subpoena issued by then-Manhattan DA Cy Vance while he was president. The Special Counsel reminded the Court of Appeals that in that case, Trump argued he sought only temporary immunity that “‘would expire when the President leaves office’ and therefore would not place the President ‘above the law.’” The tone is gentle, but the argument is strong. The Special Counsel tells the court, “indeed, the Executive Branch and multiple Presidents, including the defendant, have consistently acknowledged that any criminal immunity ends once a President leaves office.”

So, how does the Court of Appeals decide whether Judge Chutkan’s decision denying Trump immunity from prosecution was correct? We’ve discussed standards of review in the past and here, because Trump’s claims of immunity and double jeopardy are legal issues, the court reviews them “de novo,” taking a fresh look at the arguments. They are not obligated to give Judge Chutkan’s views any deference and can decide the case on different or more narrow grounds than she did. But when it comes to evaluating those claims, the Special Counsel points out the court is required to assume “‘the truth’ of the ‘factual allegations’” in the indictment.

This is an important legal point. Generally speaking, when courts evaluate the legal sufficiency of an indictment in a criminal case, (or for that matter a complaint in a civil one), the court is required to assume for purposes of the argument that the government/plaintiff’s factual claims are true, and determine whether, on that basis, there is enough of a case to go forward. So, Trump is saying to the courts, even if I did everything the government says I did, I can’t be prosecuted for it because I was president when it happened. Trump is asking the appellate courts to make him a king. Their answer must be no if we are going to continue as the Republic the Founding Fathers intended us to be.

The government’s brief is some of the finest lawyering you will see. That’s no surprise because Jack Smith was able to bring one of the country’s best Supreme Court practitioners on board, former deputy solicitor general Michael Dreeben. It’s worth our time to read in full the brief’s opening passage. The entire brief is written in clear language that is readily accessible to non-lawyers, and if you can, I strongly recommend taking the time to read it. But these opening paragraphs have the important ring of history in the making to them and shouldn’t be missed.

My certainty about the outcome of the appeal is based on this notion that if Trump has immunity, democracy is at an end, and while the Supreme Court has been questionable in other regards, I think there are a minimum of five solid votes to protect the Republic. It will be a tragedy of its own if the Court is not unanimous in this regard, but we’ll discuss that when we get there.

The timing of the decisions in the Court of Appeals and the Supreme Court is another issue, entirely up to the courts' discretion. The Special Counsel has asked the Court of Appeals to streamline the amount of time it takes the court to administratively finalize its decision (called, “issuing the mandate”) once it makes it, which will start the clock for Trump to appeal to SCOTUS. But the rules permit him a gracious plenty of time and the possibility of a request that the full D.C. Circuit rehear the three-judge panel’s decision along the way. The rules permit the court to alter the allotted time, but again, it’s entirely up to them.

Fourteenth Amendment

The roll call of states deciding whether section 3 of the 14th Amendment to the U.S. Constitution requires Trump’s removal from the ballot continues. California, Michigan, Minnesota, and Florida have rejected challenges to his presence on the ballot. So far, only Colorado and Maine have ordered his removal. In both of those states, however, the decision is stayed pending further judicial review.

Lawfare has this nifty tracker of state proceedings. Proceedings are still possibly in the works in Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.

There is an uncomfortable tension here between what the law dictates and what some people believe is politically prudent, and, of course, when isn't there on a difficult issue?

Legally, we have the precise language of the 14th Amendment, which prohibits someone who participates in an insurrection after taking an oath to uphold the Constitution from holding office again. Other provisions in the Constitution set forth eligibility criteria for holding office, for instance, candidates for the presidency must be 35 years of age and native-born. And we do not consider it a denial of voting rights if people cannot vote for a 28-year-old candidate, because they are ineligible.

But the decision about age and the decision about participation in insurrection are two different things. Age is an easy call, Insurrection is more nuanced. The Constitution is silent as to who makes the decision. Does it require indictment? Conviction? Some other form of determination? What is the definition of insurrection? Does it require a personal use of force? The Constitution is silent in these regards.

Beyond these legal questions about what the provision means, and which the Supreme Court will ultimately have to resolve, political arguments are being made. Some express the concern that if Democrats do this, Republicans will do it in response, as they are doing with their inane effort to impeach Joe Biden without any evidence to support the move. Republicans, the argument goes, will simply manufacture a claim that a Democratic nominee has done something that amounts to insurrection, and off to the races we go. That one seems nonsensical to me, as Democrats have done nothing of the sort, but we have all seen Republican’s willingness to twist the facts, so maybe it warrants more consideration than I care to give it at first glance. I’m not a fan of arguments that say we should avoid enforcing the law out of fear of the response from Trump’s base. In its most extreme form, that argument says they may resort to violence if he’s removed from the ballot and we can’t let that happen. It doesn’t seem like a particularly good argument to me—one might as well ask, how will they respond if he loses in 2024? We have elections to resolve our disputes about who should lead at the ballot box and the rule of law to avoid partisan violence. We should not lean into it.

The courts’ job here is to determine the outcome based on the law. Whether they will stay in that lane is anyone’s guess right now. Based strictly on the language of the 14th Amendment, Trump looks ineligible. But here’s the tension I started by referencing: some of the justices may believe it would be better for the country to allow voters to reject Trump at the polls because “that’s how a democracy is supposed to work.” It seems likely to me that they’ll look for a procedural way out of removing him from ballots across the country.

There is something to say for that view. It would be great to see voters resoundingly reject Trump. And in reality, wouldn't that lead to a more secure future? If Trump is removed from the ballot, he will forever be a martyr, and his followers will forever complain about it, perhaps, in some cases, violently, perhaps with serious consequences for our country’s future. But that is not the sort of consideration the Court is supposed to engage in when it is resolving an issue of statutory construction and the conservative majority in the Supreme Court has repeatedly committed itself to following the language of the law where it is clear. So we await the Court’s decision, likely this week, on whether to hear the Colorado case and whether there will be others alongside it.

But I can’t leave this subject without pointing out why we are here. There is only a lack of formal legal clarity about whether Trump participated in an insurrection because Republicans in the Senate refused to do their job. Republicans who knew, and some of whom even said out loud that Trump had engaged in insurrection failed to vote for conviction on the articles of impeachment. Seven Republicans voted with Democrats, including Richard Burr, the retiring Senator from North Carolina, who said, “The evidence is compelling that President Trump is guilty of inciting an insurrection against a coequal branch of government and that the charge rises to the level of high Crimes and Misdemeanors." He was joined by Susan Collins, Mitt Romney, Bill Cassidy, Lisa Murkowski, Pat Toomey, and Ben Sasse. But that was far from the 17 Republican votes necessary to convict Trump and prevent him from ever returning to public office. And that's where the fault lies.

Happy New Year, whether you’re reading this on New Year’s Eve or one of the first days of 2024. Wishing all of us the best of years, and of course, with apologies to the Michigan fans among us, Roll Tide!

We’re in this together,

Joyce