The Week Ahead

June 11, 2023

“We have one set of laws in this country and they apply to everyone.” With that, Jack Smith made his opening statement to the American people.

He told folks, read the indictment of Donald Trump and decide for yourself. Smith was no Bill Barr, offering up a misleading summary of an extensive investigation and claiming the former president had been exonerated when he was not. Smith was 180 degrees away from what we saw during the Trump administration. It was the ultimate in irony, DOJ treating Trump fairly and decently, asking people to read the evidence—none of which the former president has denied at this point—and to reach their own conclusions while the former president was in the process of dragging DOJ, Smith, and even a family member through the mud. Trump called Smith “deranged,” among other things.

Jack Smith’s model is our model here at Civil Discourse—make up your own mind. That means arming yourself with accurate information. Sometimes reasonable people can disagree about what the facts mean, but the starting point for public discourse has to be a commonly held set of true facts. It’s the absence of that base of knowledge that has made the descent of our national conversations possible. It is a fact that classified documents were recovered from Mar-a-Lago. It is a fact that when the National Archives asked Trump to give them all back, he did not. It is a fact that he caused his lawyers to certify everything had been returned pursuant to a subpoena when it had not been. Kellyanne Conway notwithstanding, you don’t get to make up your own facts when you don’t like the real ones. So that’s how we’ll proceed here—on the basis of facts and informed opinions. We can each make up our own minds about what it all means.

Tuesday will bring the arraignment of the former president on 37 of the 38 charges in the indictment against him and valet Waltine Nauta. By now, many of you will have read the indictment or parts of it and are familiar with the charges. I thought we’d focus tonight on some of the issues we may see come to the forefront this week.

The Charges in the Indictment

Nauta is apparently not cooperating with the government at the moment. He appeared at Trump’s side at a rally on Saturday. Nauta is charged in an obstruction conspiracy count with Trump, with five substantive obstruction charges alongside his boss, and with lying to the FBI in an interview. Trump faces 31 counts under the espionage act, 18 U.S.C. § 793(e), of willful retention of classified documents. In addition to the conspiracy and obstruction charges he is named along with Nauta in, he is charged with a count of lying to the FBI.

Title 18 U.S.C. § 2, known as “aiding and abetting,” is also included in four of the counts where Trump is charged with Nauta and in the count where he is charged with lying to the FBI. Aiding and abetting is a charge that is included when someone helps another person, “the principal,” commit a crime. The language of the statute gives you a sense of how prosecutors may believe Trump interacted with Nauta to conceal the continued presence of classified materials at Mar-a-Lago: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” In essence, the statute means that the aider and abetter faces the same sentence as the principal.

Here’s a cheat sheet to help you stay on top of the indictment:

Possible Sentences

What sorts of sentences are at stake here? It’s hard to determine that with certainty at this point. That’s because while there are statutory maximums—sentences a judge is not permitted to exceed—the sentences themselves, if there are convictions, will be set based on the Federal Sentencing Guidelines, which score the defendant’s prior criminal history and offense conduct, give the judge a range of months to sentence within, and leave the judge with a lot of discretion to craft the final sentence. Here, the statutory maximums are as follows:

18 USC §793(e)—10 years.

18 USC §1512—20 years. The conspiracy provision loops back to the conduct described in §§’s (b)(2)(A) and (c), both 20-year felonies, and under (k), a conspiracy charge under this section is subject to the same sentence as someone who commits the underlying conduct. So, Counts 32–34 each carry a maximum penalty of 20 years.

18 USC §1519—20 years.

18 USC §1001—5 years.

It’s worth noting that the 1001 charge could make for an attractive plea deal for Nauta down the road, if he wants to cooperate. Prosecutors have the discretion to dismiss the other charges against him and let him plead to that one count, if he cooperates honestly and completely. Because he presumably has no criminal history, he could be in a relatively low sentencing range, something like 8 to 14 months with credit for cooperation on that one count. But—and this helps to explain the difficulty of predicting a Guidelines sentence—it could be as high as 30 to 37 months or even higher, depending on the enhancements the judge decides to apply. There are enhancements that increase the score for different kinds of conduct, for instance here: “If the offense resulted in substantial interference with the administration of justice,” a significant increase is applied. If you’re confused by some of this, you’re on target. The Guidelines are complicated, and judges and prosecutors, as well as defense lawyers, often have to rely on United States Probation Officers to help them correctly calculate them. At the end, the final decision about the “right” calculation is in the hands of the judge handling the case, who determines what the facts are and then applies them to the Guidelines in the way they believe is correct. Guidelines sentences are often significantly lower than the statutory sentences, but if Trump were convicted on the obstruction charges, and a full range of enhancements applied, he could receive a lengthy sentence.

Judge Aileen Cannon is Back

Since we’re talking about judicial discretion, there is lots of concern about the assignment of federal Judge Aileen Cannon to this case. And rightly so given the way she mishandled Trump’s lawsuit after the search, designed to delay or prevent the investigation. Cannon was nominated to the bench by Trump and confirmed after he lost the election. However, there was nothing nefarious about Cannon’s selection. The clerk’s office uses a computerized random selection process. It was the bad luck of the draw.

Among other things, judges are supposed to carefully protect the integrity of the judicial system and the public’s confidence in it. That’s the reason for rules about recusal. The rules come down to requiring recusal where “the judge’s impartiality might reasonably be questioned.” This isn’t a casual standard requiring constant recusals, which would be disruptive. It’s reserved for situations where an objective observer looking at a case would lack confidence the judge could act fairly, for instance, if they had a financial interest in the outcome or a family member were a lawyer for one side.

In less obvious situations, a decision about when a judge should recuse is made on a case-by-case basis. In a case I handled in 2006, U.S. v. Martin, the 11th Circuit Court of Appeals considered an unusual situation involving sentencing and determined that a judge needed to step aside. The judge had sentenced the case, was appealed and reversed, and had resentenced. Considering the judge’s second bite at the appeal, the court reflected, “Finally, based on our review of the record and the elements that this Court considers in determining whether to reassign a case to a different judge where there is no indication of actual bias, see United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam), we have determined it wiser to remand this case with instructions to reassign it to a different judge. This is the second appeal in Martin's case and the second time we have had to reverse the sentence that the district court gave Martin…In light of the two reversals in this case and three other appeals in which we have reversed the same judge for extraordinary downward departures that were without a valid basis in the record, we find it likely that ‘the original judge would have difficulty putting his previous views and findings aside.’" It’s unusual to find that a judge’s decisions can form the basis for recusal, but it did in Martin.

When Cannon handled the earlier Trump matter, the 11th Circuit ruled against her twice. The first time was on a preliminary motion after she limited the ways the government could use classified documents seized—in an entirely lawful and normal fashion—from Mar-a-Lago and seriously hampered the government’s investigation (as well as unnecessarily expanding the universe of people with access to classified material). When the Court decided the case on its full merits, they resoundingly reversed Cannon and were sharply critical of the way she handled the case in a fashion that went beyond the typical reversal where the appellate court thinks the district judge got it wrong. It’s not infrequent for that to happen. There are many close calls, and judges acting in good faith can disagree. The tenor of the 11th Circuit’s opinion reversing Cannon was different, finding she lacked jurisdiction and insinuating it was not a particularly close call. She reached a result that was favorable to Trump by all but ignoring the law, refusing to apply it, and rejecting the government’s positions without explaining why. It was the sort of extreme error that rises to the level of Martin, calling into question both whether the judge could set aside her previous views and whether a reasonable person would question her ability to handle the case fairly. Cannon had gone so far as to say her decisions were “inherently impacted by the position formerly held by the plaintiff,” i.e., that he had been the president.

All of this forms a solid basis for Cannon to decide that she should recuse. And she could couch it in this manner, that although she is confident she could handle the case fairly, she is stepping aside to ensure the public has confidence in this highly important matter. That wouldn’t guarantee a judge appointed by a Democratic president would take over—it could even be another Trump appointee. But it would ameliorate specific concerns about a specific judge that would so overtake the case that it would be impossible to have confidence in the outcome. Trump might even argue that she was bending over backward to rule against him in order to protect her own reputation. No one wins, including the judge herself, if she remains on the case. But it’s up to her right now.

What do we make of the fact that Cannon is a Trump appointee? Normally, that’s just not a factor. Every judge is appointed by a president from one party or another, and judges are often called upon to rule in favor of or against a policy of the president who appointed them. It’s not viewed as a ground for recusal. This may be a little different because it’s a criminal case involving the president who appointed her. A judge probably would recuse from a criminal case involving their former boss or mentor. That’s not precisely the relationship here, and, of course, there is no exact case law since Trump is the first ever president to be indicted. But judges err on the side of caution to avoid the appearance of impropriety, and here, combined with her conduct in the earlier case, this might be a factor to consider, although it’s unlikely it would suffice on its own.

If Cannon doesn’t recuse voluntarily, prosecutors will likely have to file a motion requesting the recusal to take the issue forward. This is always a difficult move for prosecutors, one to be avoided unless the circumstances are extreme, like they are here. Under the rules, if a judge denies a request by one of the parties that they recuse, “the Judge shall issue a ruling on the record, stating the grounds for denying the request.” Provoking that statement alone would be worthwhile.

Most likely though, prosecutors will wait for Cannon to make an objectionable ruling that can be appealed pre-trial, and use that opportunity to request that the 11th Circuit order the Chief Justice in the Southern District of Florida to reassign the case on remand. Of course, this means delay, and delay here works in Trump’s favor. None of this is ideal, by any means. But this is the type of situation where the 11th Circuit protects its integrity and reputation by ordering recalcitrant judges to recuse. Prosecutors are likely to get their opportunity because Cannon, whose appointment of the special master and rulings in the earlier matter already demonstrated some inexperience and discomfort handling highly sensitive classified matters, will be called upon to make decisions and set appropriate procedures under a complicated statute, CIPA, the Classified Information Procedures Act, that governs the handling of classified material in a trial setting. Because those decisions can be appealed immediately, it seem likely that the government will need to take an appeal at some point and that will give it the opportunity to request recusal.

The selection of Judge Cannon unnecessarily complicates the trial of what would be a straightforward case of mishandling classified documents and obstructing an investigation into that conduct if the defendant were anyone other than the former president of the United States. Trump seems to get all the breaks, and this is a difficult one to stomach. But I continue to think the courts will sort this out, one way or the other.

Arraignment

We’re told Tuesday’s arraignments are being handled by Magistrate Judge Jonathan Goodman in the courthouse in Miami, rather than in the Fort Pierce Division where Cannon sits. District judges can and do on occasion handle arraignments themselves in high-profile cases—it happened in this district in a case involving Colombian drug kingpins. But here, it’s likely that arraignment will proceed before the magistrate judge in a perfunctory matter, and Trump will enter his plea of not guilty after being processed, fingerprinted, and submitting to a mug shot. The process is likely to be highly orchestrated by the court, the Marshals Service, and the Secret Service, with everyone on high alert because of Trump’s social media posts, reminiscent of the “will be wild” tweet ahead of January 6. As the New York Times detailed, these latest posts have set off a cascade of troubling calls to “support” Trump.

Obviously there are a lot of questions ahead. We’ll learn more about CIPA and the discovery procedures in the Southern District of Florida that prosecutors use to share evidence with a defendant. There will be pre-trial motions. And of course, in the background, there is not only the already indicted case in Manhattan but the prospect of additional decisions by prosecutors, be it Jack Smith in the federal investigation into Trump’s role in the 2020 election interference or Fani Willis, the Fulton County district attorney. Make sure you get some rest. The weeks and months ahead are going to be jam-packed.

We’re in this together,

Joyce