The Week Ahead
October 2, 2022
Some interesting issues ahead of us this week!
DOJ goes on offense.
DOJ is proceeding with its full appeal of Judge Cannon’s order appointing a special master. And, they’ve moved to expedite the schedule for parties to file briefs, so the case can be decided more quickly.
Normally this would take at least a couple of months and, as DOJ points out, Trump could request extensions that would drag this into 2023. DOJ has a good argument to make here—this is the type of case the local rules in the 11th Circuit contemplate expediting. The issues are mostly legal and precisely drawn and the parties have already briefed them. There is no reason the court shouldn’t grant the motion, although it’s within the discretion of the panel judges.
DOJ used strong language to justify the need to move more quickly.
DOJ is acting like it’s serious about the criminal case here. They’ve executed a search warrant. They’ve appealed the district judge’s order. Now they’re asking the 11th Circuit to expedite that appeal. They appreciate the peril of raising expectations if there isn’t going to be a prosecution. As crazy as it seems, Trump may have more pressing criminal exposure for this case, that seemingly cropped out of nowhere than he does for fomenting an insurrection.
Is Ron DeSantis in Trouble?
Florida Governor Ron DeSantis thought there would be political advantage in treating asylum seekers and other immigrants as if they were mere props for him to use for political gain, not human beings. He decided to one-up Governor Abbott in Texas, who sent busloads of immigrants to what he perceived as politically advantageous locations like the Vice President’s residence. But buses weren’t enough for the man who would be president. DeSantis chartered planes, using funds earmarked for Covid relief and paying over $1.5 million dollars to a company that has made donations to his political allies, to fly migrants to Martha’s Vineyard. Again, they were dropped in places that weren’t given sufficient advance notice to make preparations for them. Fortunately, people in Martha’s Vineyard turned out to be as compassionate as DeSantis isn’t, sorting people out and helping to me their needs.
It’s too early to know whether criminal investigation will take a serious turn, but no one who was involved should be breathing too easily just yet. DeSantis took credit for transporting the migrants, saying the flights were a necessary stunt to protest Democrats’ immigration policies. That could come back to haunt him.
While a sheriff in Texas (where Florida’s Governor scooped up migrants for his plan) is investigating possible state crimes, kidnapping is also a federal crime, found at Title 18 USC Section 1201.
The statute specifically makes it a crime to attempt a kidnapping or to conspire to commit one.
There’s been a lot of back and forth about whether kidnapping charges could apply to people involved in the migrant transportation scheme, up to and including the Governor. Federal kidnapping can include a number of actions, seizing, confining, and so forth. Perhaps the most interesting here is “inveigles,” which sounds like the kind of deceit reporting suggests took place here—luring or enticing a person to do something by making false representations or promises, including of assistance and jobs.
If DeSantis or others can be said to have kidnapped by inveigling, there is still the questions of whether the kidnapping was conducted for “ransom, reward, or otherwise.” There is no suggestion of ransom or reward here, but what does “otherwise” encompass?
DeSantis is in Florida, part of the 11th Circuit (as we all know, since we’re living with the fallout from the Mar-a-Lago search). As a prosecutor, I always liked to assess a potential criminal case by looking at the Pattern Jury Instructions. Pattern Jury Instructions, which most circuit courts and many states have, provide guidance to trial judges on the correct way to instruct juries on the law they must follow in their deliberations. The 11th Circuit’s are particularly well-maintained and updated, covering everything from burdens of proof to elements the government has to prove for specific crimes. They are very helpful because they are, quite literally, the last words a jury hears on what the law requires it to find before it can convict.
The jury instructions for kidnapping clarify that a ransom per se isn’t necessary, so long as a kidnapper intends to obtain “some benefit” from the kidnapping. Since no ransom was involved here, would it be possible to say that political advantage is included within the “some benefit” kidnappers must receive—other cases have found kidnapping for companionship was sufficient. Although the situation is unusual, it’s not possible, without more investigation, to say this is entirely off the table. Whether a federal prosecutor would be willing to take a case like this on is still unclear. But I think it’s important to track the nuances of the conduct the law prohibits here. At a minimum, serious investigation is merited to see who was involved and whether what they did violated the law.
Mother Russia and the Mother of Oleg Deripaska’s Child.
Russian oligarch Oleg Deripaska, a man with many interesting connections that extend from Vladimir Putin to Paul Manafort, and who has also been sanctioned by the U.S. and U.K. governments in the past, was indicted this week. It didn’t draw much attention.
That may be because the charges are technical ones involving sanctions violations. But it’s an intriguing case in no small part because those sanctions, which are laid out in detail in DOJ’s press release which you can read here, had to do with Russia’s invasion of Ukraine. Also involved: Deripaska’s girlfriend, who engaged in childbirth tourism-related fraud, traveling to the U.S. before the birth of their child to obtain citizenship for it. The full indictment is available here.
Deripaska won’t be able to leave Mother Russia if he wants to avoid getting picked and prosecuted. While he can stay safely in Russia with no risk of extradition, DOJ loves to grab folks when they’re on vacation or business travel that touches down in a country that will agree to extradite. So, even if the U.S. never gets to actually prosecute Deripaska, this indictment significantly restricts his movements.
Maybe it’s still true that all roads lead to Russia? Pelosi in June 2020 said about Trump," “Just as I have said to the president: With him, all roads lead to Putin.” This is one to keep an eye on!
Ginni Thomas: Making a Case for…Herself.
In testimony last week, Supreme Court Justice Clarence Thomas’ wife, conservative activist Ginni Thomas, reportedly told the January 6 committee she still believes the 2020 election was stolen. One suspects, however, that she’s far too smart to really believe this is true. Judges rejected Trump’s election fraud claims in 61 cases. And, she and her husband are well-positioned to appreciate that an absence of the mens rea necessary to convict, a defendant’s state of mind, would be the best kind of defense in a criminal case regarding involvement in the fake elector scheme or other January 6-related plans.
It’s unclear whether DOJ considers Thomas to be a subject, let alone a target, of the criminal investigation into January 6. But if she did fall within the scope of the investigation, it would be difficult to charge her if there was reasonable doubt about whether she knew Trump lost the election and the slates of electors being assembled to try and keep him in place were illegitimate. So, her testimony before the January 6 committee could be a strategic move to try to keep herself from becoming a defendant in a criminal case. Perhaps it signals just how concerned people in the know are about the conduct of Trump insiders she was in touch with, like John Eastman and Mark Meadows.
Increasingly, I think Thomas’ testimony and her desire to get her “belief” out there publicly may signal concern about her own possible criminal exposure. Testifying she believes the election was stolen could be a start on a potential defense if she ends up needing one. Or perhaps she’s trying to head off indictment down the road if the facts play out her direction. Because it’s hard to believe she’s really that crazy.
E. Jean Carroll versus Trump.
The former Elle magazine columnist plans to sue Trump for battery and inflicting emotional distress on November 24. That’s the day Carroll and other accusers will be able to benefit from a recently enacted New York state law, that allows them a one-year grace period to sue for incidents of sexual misconduct where the statute of limitations expired long ago. Carroll still has the dress she wore on the day she alleges Trump raped her, decades ago, so obtaining his DNA could prove key here.
But Carroll also has another pending case against Trump, in which she alleges he defamed here over the rape, saying she wasn’t his type and making other derogatory references when questioned about it. The Second Circuit has now referred the key question of whether his conduct was within the scope of his official duties to courts in the District of Columbia for a decision. Meantime, Trump is trying to delay his deposition in the case and to have it dismissed. The Court ruled he was a federal employees and can be represented by DOJ, so he’ll try to use the qualified immunity afforded to employee for conduct within the scope of their official duties to avoid responsibility here.
There has been a lot of concern about why Merrick Garland’s Justice Department would represent Trump here. Most likely, the concern is with not treating Trump differently than any other precedent and setting a bad precedent here. While that’s a bitter pill to swallow in this situation, knowing taxpayer dollars are being used to represent a man who used the bully pulpit of the presidency to attack a woman, in the long run, this case was always going to turn on whether Trump’s conduct was part of his duties as president. His claim, that responding to questions from the press is something presidents do, is awfully tenuous, especially since it concerns an alleged rape from long before he ran for the presidency. That issue is now in the hands of the D.C. Courts for a decision.
BTW, Carroll writes one of the wittiest Substack columns out there. She’s a former advice columnist for Elle magazine, but her political commentary is dead on target. If you need some diversion right now, and who among us doesn’t, find her here.
Welcome Justice Ketanji Brown Jackson!
SCOTUS gets back to work this week. They’ll hear the Alabama redistricting case we’ve discussed in the past, and likely make it even more difficult for Americans to exercise their right to vote. But on a positive note, a new Justice officially joined the Court.
That a lot to stay on top of this week. Events show no signs of slowing down.
We’re in this together,