The Week Ahead
March 19, 2023
The question at the top of our minds this week is whether the chickens will finally come home to roost.
Just a quick reminder of where Trump is: In addition to the possibility Manhattan district attorney Alvin Bragg will file charges against Trump sometime this week, he has other problems.
In federal court, a special counsel is investigating his role in election interference and the obstruction of the official proceeding of Congress on January 6 to certify the Electoral College vote. The same special counsel is also investigating evidence that he took, concealed, and perhaps copied classified documents, retaining them at Mar-a-Lago even after a federal search warrant was executed. In Georgia, Trump is under investigation for election fraud. And while the charges in New York are expected to involve false business records created to conceal Trump’s payment of hush money to Stormy Daniels (to keep her from revealing news of their affair just ahead of the 2016 election and following the release of the Access Hollywood tape), there is also the possibility of more criminal charges in New York over financial crimes committed before he became president, in which he allegedly lied about the value of Trump properties to pay lower taxes while extracting better deals on loans and insurance.
That long recitation of Trump’s legal problems is all criminal. It doesn’t even begin get to his civil problems, including an April trial in the E. Jean Carroll defamation case and an upcoming New York Attorney General matter that may put him out of business in the state of New York.
There’s so much that it’s hard to keep track. Here’s a cheat sheet heading into this busy week.
The federal investigation
Special Counsel Jack Smith is running an operation with few leaks, other than those that come from witnesses. But it’s clear he’s simultaneously pursuing January 6 matters and the classified documents investigation.
Smith wants former Vice President Mike Pence’s testimony, but Pence is still hoping he can simultaneously court Trump voters, which means not testifying against his former ally, while sternly, if vapidly, insisting he did the right thing by certifying the vote on January 6. The subpoena to Pence indicates that Smith wants to understand Trump’s role in the attempt to prevent the certification of Biden’s Electoral College win and his efforts to draw his supporters to Washington before unleashing them on the Capitol.
Sunday on ABC, Pence said he wouldn’t challenge the subpoena on executive privilege grounds. That’s conceding absolutely nothing, since we know from the fact that two of his key aides have already had to testify that the courts in the District of Columbia haven’t bought that excuse for failing to testify. But Trump is still insisting his role as President of the Senate on January 6 means he can’t testify—of course, even if that was a good argument, it’s now clear that the subpoena goes far beyond anything that might arguably be privileged, including the lawyer John Eastman’s role and Trump’s efforts to draw the crowd to Washington, D.C. Increasingly, it looks like Smith will get his testimony. The question is, how many layers of appeal will it take and how determined is Pence to delay?
Meanwhile, Smith’s team is laboriously reviewing massive amounts of testimony bequeathed to it by the House Jan. 6 committee, including the schemes to create fake slates of electors in key states so that Trump could manufacture victories he had not won. Smith’s task is to determine if anything among the many awful things Trump did crosses the line and is unlawful. That will be a painstaking factual and legal inquiry. Smith hasn’t done much to suggest where he’s headed. But something that happened last week gives us a clue of sorts.
The clue surfaced in the Mar-a-Lago side of the investigation, where DOJ successfully pierced the attorney client privilege when federal district judge Beryl Howell in the District of Columbia, on her last day as chief judge, ruled that the crime-fraud exception to the attorney client privilege meant that Trump lawyer Evan Corcoran would have to return to the grand jury to answer questions he had previously refused to. It was a serious step for DOJ to argue in court that Trump and his lawyer engaged in crime together, in order to get that testimony. It would be surprising to see them take that position and not follow up with charges. Reading the tea leaves, it’s looking like there will be federal charges, at least as to the classified documents, in Trump’s future as well.
Trump lawyer Christina Bobb has also testified before the grand jury. It’s not a good thing for any defendant when your lawyers are being forced to testify against you. The former federal prosecutor in the Eastern District of New York and member of the Mueller team Andrew Weissmann believes, as do I, that this is about tying Trump to the false statements made to DOJ that all of the government and classified documents had been returned, when they were still sitting in storage at Mar-a-Lago.
There has also been reporting that suggests Smith is looking at what the January 6 Committee called “the Big Ripoff,” investigating the Save America PAC, the political action committee that Trump used to raise millions of dollars by persisting with false claims of election fraud after the 2020 election was decided. That investigation appears to includes questions about how and why committee vendors were paid. Many of the Trump vendors have been subpoenaed, and the line of questioning investigators are pursuing suggests that they are looking into whether the payments were for legitimate services rendered.
Bottom line—Smith’s investigation is getting bigger, and the appearance is that he’s unafraid to follow the evidence wherever it leads. One caution: that doesn’t necessarily mean he’ll indict on all of these charges, as he seeks to get to the bottom of allegations.
While we still don’t know what “imminent” means to Fulton County district attorney Fani Willis, there’s news about two items of evidence that haven’t been previously reported and that would make her case stronger.
First, there’s another phone call, and lordy, there’s a tape. Trump was apparently not satisfied with the outcome of his call asking Georgia Secretary of State Brad Raffensperger to find him the votes he needed to claim victory in the state, as the Atlanta Journal-Constitution reported on the existence of another call. They learned about it when they interviewed five of the special investigative grand jurors, who revealed the recording of a phone conversation between Trump and Georgia House Speaker David Ralston, where Trump asked Ralston to convene a special session of the state legislature to overturn Biden’s win in Georgia. Ralston, who has since passed away, declined. But this is further evidence of Trump’s intent in Georgia and just how far he was willing to go to steal the election, or, as Georgia law more delicately puts it, to “interfere.”
Second, there was reporting that Trump’s 2020 campaign commissioned outside research to prove electoral fraud claims. But nothing was publicly released and researchers concluded there was no fraud. That’s still more evidence that Trump knew he’d lost when he tried to convince Georgia politicians to throw the election to him—criminal conduct, not legitimate political maneuvering.
Willis has already made clear she plans to bring charges, we just don’t know exactly when.
There was little expectation, especially after the new district attorney in Manhattan shut the investigation down shortly after taking office, that the first jurisdiction to charge Trump would be in the state of New York. But Bragg is now expected to charge him with illegally concealing a $130,000 hush-money payment made to Stormy Daniels, but recorded as legal fees paid to his then attorney and fixer Michael Cohen, just ahead of the 2016 presidential election, to conceal their affair.
We don’t know what form the final charges will take, but there are questions about whether it is merely a misdemeanor. Under New York law, the crime of falsifying business records seems to be fairly invoked on these facts. But it’s a misdemeanor, unless prosecutors can successfully establish another crime was committed in connection with the falsified records. That would bump it up to a felony.
There are a lot of potential legal issues here depending on the crime the DA’s office uses to upgrade the charge to a felony, including whether a federal crime would qualify (although there is some case law that suggests it would). One possibility is a New York state election law crime that prohibits two or more people from conspiring “to promote or prevent the election of any person to a public office by unlawful means.” Still lots of unknowns here—we’ll be parsing any indictment as soon as we see it!
Much of any case’s success will hang on the credibility of Cohen as a witness. He previously said Trump directed him to make the payments. Trump’s lawyers are sure to hammer away at Cohen’s credibility, as a convicted felon. They’re attempting a last-ditch effort to do that to prevent the grand jury from issuing an indictment, offering up Robert Costello, once a legal advisor to Cohen, as a witness who will impugn Cohen’s truthfulness under an unusual New York procedure that allows defendants to proffer witnesses to the grand jury. But it seems unlikely prosecutors would have gone this far if they lacked confidence in their ability to backstop Cohen’s testimony with sufficient corroboration. And, when it comes to trial, prosecutors are used to putting on witnesses with prior convictions, because those are the people defendants in criminal cases often hang out with. The prosecution didn’t select Cohen as a witness; Trump did.
Cohen said on MSNBC Sunday morning that he would be on call if the grand jury or prosecutors need to hear more from him after Costello’s testimony. We don’t know what the timeline is here, but given all of this, it seems increasingly unlikely that an indictment could be returned any earlier than Tuesday.
We continue to wait, as Trump seems to be increasingly falling apart on Truth Social.
Last week was a bad one for would-be despots. Let’s hope it’s a trend.
We’re in this together,