The Week Ahead

May 26, 2024

The most difficult part of my job as a prosecutor wasn’t preparing for trial or even handling appellate arguments. It was “The Wait”—the hours or days between when a jury got the case and when they delivered their verdict. The wait is excruciating in a case where you’re almost certain the jury will convict and even more so in a case that’s a closer call for whatever reason.

That’s where we’ll find ourselves in the week ahead. Waiting for a verdict in the Manhattan case.

Just to give you some idea of how rough of a time this is for prosecutors, I turned to some friends, former Obama U.S. Attorneys, for their thoughts. Barb McQuade said she would pretend to clean her office. Jenny Durkan, who was the U.S. Attorney in Seattle, described it as a time when you are too nervous to eat chocolate and your heart races every time the phone rings. Another friend, Laura Davis-Duffy, in San Diego, shared that she used that time to go eat with the trial team because they were too busy and in the throws to eat much during the trial. But my favorite was my friend Wendy Olson in Idaho, who said she would read old issues of People Magazine that they kept at the courthouse while she was waiting for a jury to come back.

One of our other friends, Melinda Haag, in San Francisco, had a great story about waiting on a verdict when she was on the defense side in a federal criminal securities fraud bench trial. It took the judge (who was sitting in place of a jury) three months to sort out a very complicated case with multiple defendants. Melinda’s client was acquitted, but she told us she took up yoga to help deal with the stress of waiting!

That’s the stuff that The Wait is made of, and we’re all going to go through it together this week. My former DOJ and current MSNBC colleague Chuck Rosenberg summed it up perfectly: “Miserable time for me. Hated it. I was completely useless while waiting.”

Fortunately, there will be some other distractions while the jury is deliberating this week. Hopefully, that won’t include Trump posting about the case while the jury is working. He’s spent time over the weekend attacking Judge Merchan and Manhattan DA Alvin Bragg. His lack of self-restraint is truly remarkable.

Supreme Court Reminder

There is just over a month left to go in this term of court for SCOTUS. We expect them to announce opinions every Thursday through the end of June, and they’ll likely add on additional “opinion days” as we get closer to the end. There is a list of cases before the Court this term that shows which are still pending, with brief descriptions, here. Some of the big ones that are left include the mifepristone case, Loper Bright (the extent of administrative agency powers), and, of course, the presidential immunity case brought by Donald Trump. There are also a number of important cases having to do with criminal law and criminal procedures, and others involving privacy issues that are yet to be decided.

On Friday, Justice Sonia Sotomayor spoke at Harvard’s Radcliffe Institute, where she told the audience, "There are days that I've come to my office after an announcement of a case and closed my door and cried. … There have been those days. And there are likely to be more." But ultimately, she delivered a message of power. “There are moments when I’m deeply, deeply sad,” Justice Sotomayor said. “And there are moments when, yes, even I feel desperation. We all do. But you have to own it. You have to accept it. You have to shed the tears, and then you have to wipe them and get up and fight some more.”

Countdown in the Mar-a-Lago Case

Friday night, Special Counsel Jack Smith filed a motion with Judge Aileen Cannon to change the conditions of pre-trial release Donald Trump must abide by to remain free on bond pending trial.

Smith wants Trump to quit telling lies about the FBI/DOJ/Joe Biden targeting him for execution when the search warrant at Mar-a-Lago was executed. Leaving aside the fact that agents took excruciating care to make sure Trump would not be home when the warrant was executed, it’s also standard FBI policy to include a reminder for agents on when the use of deadly force is authorized as part of an operations plan. That’s nothing approaching authorizing an assassination attempt on Trump. The same policy was part of the ops plan when Joe Biden’s homes were searched, voluntarily—because, unlike Trump, Biden advised the Bureau he had found classified materials and consented to them searching to make sure everything was retrieved.

Smith told the court that Trump is “falsely suggesting that they [agents] were complicit in a plot to assassinate him,” and that his words are exposing them, some of whose identities will become public at trial because they will be witnesses, “to the risk of threats, violence, and harassment.” The deadly force policy prohibits the use of deadly force except “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.” Trump, according to exhibits attached to Smith’s motion wrote that “the FBI ‘WAS AUTHORIZED TO SHOOT ME,’ was ‘just itching to do the unthinkable,’ and was ‘locked & loaded ready to take me out & put my family in danger.’”

Trump’s lawyers objected to the motion being filed ahead of the holiday weekend. Smith explained in a footnote: “The Government has contacted counsel for defendant Trump, who stated that they object to the Motion and the timing of the conferral on a holiday weekend; it is their position that the Government has not provided an opportunity for meaningful conferral. They do not believe that there is any imminent danger, and asked to meet and confer next Monday. However, within just the last few hours, Trump has continued to issue false statements smearing and endangering the agents who executed the search. See https://truthsocial.com/@realDonaldTrump (‘reTruthing” statement claiming that the FBI was authorized to use “‘Lethal Force’ on Trump or anyone at MAL – WHILE the FBI/DOJ plants evidence to frame Trump!!!’).”

There are at least two reasons Judge Cannon should grant Smith’s motion. Trump’s conduct is a threat to the safety of law enforcement and also to the integrity of the case—his conduct could prejudice potential jurors or frighten witnesses off of testifying truthfully. Smith reminded Judge Cannon that previously, she “underscored” the court’s “independent obligation to protect the integrity of this judicial proceeding.” Adding new conditions to a bond that a defendant has to abide by if he wants to remain free pending trial is common when problems arise. The statute that governs this type of situation, is 18 U.S.C. § 3142(c)(1)(B)(xiv), authorizes judges to impose conditions on a defendant in order to assure the safety of other people and the community.

Why did Smith go this route instead of asking for a gag order? That’s a great question, and I think it suggests where Smith is headed. 18 U.S.C. § 3731 is the statute that governs appeals that are taken by the United States (rather than by a defendant). It specifically authorizes the government to appeal if a district judge denies a motion to modify the conditions of release.

That’s what this is all about. Donald Trump isn’t the only one who can take an appeal for strategic reasons. Judge Cannon has had real trouble ruling for the government in routine motions that clearly merited that treatment. If she rules against them here, they’ll be prepared to take a quick appeal. The rules give them 30 days, but it won’t take anything close to that.

The more pressing question, especially since this is Judge Cannon, is what the government does if she sits on the motion, as she has on so many others in this case, without ruling or even scheduling a hearing. Smith will likely be politely persistent at first, asking her to schedule the hearing. But ultimately, and especially if Trump continues with his threats, Smith is likely to file a writ of mandamus with the Court of Appeals for the Eleventh Circuit. We’ve encountered mandamus before. Last July, Trump tried, unsuccessfully, to use the writ to prevent Fani Willis from indicting him. Mandamus asks an appellate court to order a trial judge to do something they are obligated to do but won’t or to refrain from doing something they are not permitted to do. The duty involved must be purely administrative; for instance, judges are required to decide motions in cases in front of them in a timely fashion. Mandamus cannot be used to ask a judge to decide an issue a certain way—those substantive disputes are the subject of the regular appellate process. Mandamus can be used only in very limited circumstances like this. If the Eleventh Circuit has any appetite to force Judge Cannon to handle the case properly, this would be their opportunity.

While we consider how long the countdown will be until Smith gets his appeal one way or the other, it’s also worth contemplating what’s going on here. Donald Trump, who has argued before the Supreme Court of the United States that a sitting president has absolute immunity for all conduct, including using SEAL Team Six to assassinate a rival is accusing Joe Biden of…

You get the point.

Roulette with Our Rights

Griswold v. Connecticut is the 1965 Supreme Court decision that legalized birth control. Last week, Tennessee Republican Senator Marsha Blackburn called the decision “constitutionally unsound.” Blackburn, formerly a member of the Tea Party faction of the Republican Party and now staunchly pro-Trump, is not a lawyer.

The same folks who laughed when women became concerned about Roe v. Wade after Trump confirmed three Supreme Court justices during his time in office will push this one aside. That would be a mistake. Trump said last Tuesday during an interview with KDKA-TV in Pittsburgh that he was open to supporting contraceptive regulations. He was quick to walk it back later in the day, saying he has "never, and will never advocate imposing restrictions on birth control, or other contraceptives.” With Trump, though, once the cat is out of the bag, the issue is live. A week ago, Virginia Governor Glenn Youngkin, who has endorsed Trump, vetoed two laws that would have protected Virginians’ ability to obtain and use contraception if a federal ban was ever passed. Youngkin tried to have his cake and eat it too, claiming he supports contraception but vetoed the bills to "uphold the fundamental right of parents to make decisions concerning their children's upbringing and care.”

They are, in a word, playing roulette with our rights. The ability to engage in family planning is essential if women are to have control over the course of their own lives.

Youngkin's approach mirrors how conservatives came after abortion following Roe. They restricted minors’ access without parental consent. The justification is hollow. Parents’ rights shouldn’t trump those of an 11-year-old girl who has been the victim of incest. She shouldn’t need their approval to abort a fetus that results from her victimization. But parents’ rights is an important rallying cry on the right, and it’s likely to be the gateway drug for courts looking to eliminate Americans’ rights to contraception.

Remember the ads about the Republican congressman in your bedroom? Next up is Justice Alito deciding what you can get at your pharmacy. It’s a slippery slope.

We’re in this together,

Joyce