The Week Ahead

In Minnesota for a rally on Friday, Donald Trump claimed he won the state in 2020. He did not. He lost by 200,000 votes. It might seem like just one more lie among many. But it’s more than that, it’s Trump revealing his “campaign strategy” for 2024. When he loses in Minnesota, as he will, as every Republican candidate has since 1972, he will call it fraud. It won’t just be Minnesota. It will be another Big Lie and Donald Trump, unchecked, will use it to rip the country apart.

It is time for Democrats to take on Trump's lies. Republicans won’t. This is work for Democratic leaders across the country, from Joe Biden on down, to lead the charge on. There are plenty of folks like us, willing to help keep the focus on Trump’s strategy of lies. But there needs to be national direction and focus on this issue to make sure it breaks through. This election is one where democracy is literally at stake and Trump isn’t shy about telling us so.

It's easy to brush aside a lot of the junk that Trump and his followers put out because it's so clearly wrong to anyone who applies even a modicum of common sense to it—remember the whole Birthergate thing? We are there again. Despite over 100 court decisions, including many made by Trump- and other Republican-appointed judges, that the outcome of the 2020 election wasn’t the result of fraud, and despite Trump’s Head of Cybersecurity Chris Krebs saying there was no credible evidence of computer fraud in the 2020 election, Trump continues to push the claim. And his followers eat it up. Like Shoegal0128, who has a modest following on Twitter and seems to spend much of her day posting that Trump really won.

Here's her Twitter bio

She is just one of many pushing the fake claim Trump won. It looks systematic. Now is the time to insist that Democratic leaders and those who believe in democracy take the lies on directly, amplifying the unquestionable evidence Trump lost in 2020 so folks who aren’t paying intense attention but will begin to follow more in the run-up to the election, understand what Trump is trying to do and what he’s going to do if he loses.

Ezra Klein has a thought provoking piece in the New York Times today, arguing that the Biden campaign must acknowledge it’s running behind in the polls in key states and adopt a theory explaining that. He lays out options ranging from “the polls are wrong” to “Biden is too old.” The one that intrigues me the most is “Democrats need to redefine Trump.” Ezra writes:

“‘Biden is not running against God,’ as Bernie Sanders put it. ‘He is running against Donald Trump.’ A year ago, Democrats were pretty confident that as the possibility of a Trump presidency came closer, voters would realize what they were risking and come home to Biden. That looks less likely with each passing day.

The mistake Democrats keep making about Trump again and again is to assume that the rest of the country will see Trump as they see Trump. But Trump won in 2016 and he came scarily close in 2020; absent the pandemic, he may well have been re-elected.

What Democrats want to do in 2024 is run against the threat Trump poses to American democracy. ‘Whether democracy is still America’s sacred cause is the most urgent question of our time, and it’s what the 2024 election is all about,’ Biden said on Jan. 5, in the speech that kicked off his re-election campaign. But it’s not working. Or, at least, it’s not working well enough.”

That’s akin to the point I’m making here. Assuming that people view Trump as the would-be dictator those who are paying attention know him to be is not enough. It’s essential for top Democratic leaders, for our state and local leaders across the country, and not just Democrats but people who believe that we must remain a democracy, to talk about this issue persistently. Trump, who is under indictment for trying to steal American’s votes in 2020, is setting up to do it again in 2024. And with his liberty at stake in two federal prosecutions that will proceed only if he loses, he will play with everything he has. We had better be ready.

Don’t believe it? Sunday morning, Marco Rubio joined Republicans who are already on point with Trump on this.

That’s how we start the week ahead, with Donald Trump treating his criminal trial in Manhattan like a campaign event, summoning the faithful to sit with him, dress like him, and spew his talking points.

Arizona

Trump isn’t alone. This week, there is likely to be more on Arizona Attorney General Kris Mayes’ prosecution of people involved in the conspiracy to overturn that state’s 2020 election results using a slate of fake electors.

Rudy Giuliani, who had taunted Mayes for failing to deliver the formal notice he was entitled to receive before his prosecution in that case could move forward, was served with it. He was served during a party held for his 80th birthday in Florida, just a couple of hours after Giuliani baited Mayes for failing to deliver his indictment.

Ask and you shall receive.

Mar-a-Lago

Monday was supposed to be the start of Trump’s criminal trial in the Southern District of Florida, the one where he’s charged with mishandling national defense information after he left the White House and spending months actively obstructing the investigation into his conduct. But of course, that case will not start on schedule, which was months behind when this case should have been ready to go to trial, because the Judge seems to have no appetite for justice in this matter.

On Sunday, perhaps in an effort to convince us she really is working after months of foot-dragging, Judge Cannon issued an order she styled, “ORDER DIRECTING PUBLIC DOCKETING OF OUTSTANDING UNDOCKETED PRE-TRIAL MOTIONS AND RESOLVING RELATED MOTIONS.” You can read it here.

The fight was about what information in pending pre-trial motions should be redacted from public view before those pleadings are uploaded to the court’s public docket. The case involves classified material, so it was always obvious there would be some concerns, but in this case, because of Trump’s proclivity for attacking witnesses, they are amplified. The Judge agreed that where both parties wanted to keep material redacted, even if it was for different reasons, she would so order. She also ruled that:

1. Where the parties disagreed about whether material should be redacted based on Trump’s claims of attorney-client privilege, the Judge would accept Trump’s characterization of the material as privileged until she considers that privilege issue in the context of one of the pending motions, and he could keep this information out of public view.

2. Where the Special Counsel claims a need for continued secrecy of grand jury material, the Court “accepts that rationale despite concerns about the Special Counsel’s use of Rule 6(e) as a basis for continued secrecy” and authorizes the sealing/redactions for now, but says they will be “subject to potential further review.”

In other words, she’s permitting all material either party claims should be protected to remain out of public view for now, but she’s kicking the can down the road to reconsider the two buckets of information she identified above. And it’s hard to walk away from the order without detecting a whiff that very different treatment is in store for Trump and for the government.

Judge Cannon criticizes Special Counsel Jack Smith’s office, saying she’s “disappointed” he sought to protect grand jury secrecy and witness safety in earlier filings while at one point relinquishing some of those concerns in order to, as Smith termed it, “publicly and transparently refute defense allegations of prosecutorial misconduct.” In other words, Cannon is critical of prosecutors, yet again, on the flimsy basis that they sought to walk the fine line between protecting witnesses and permitting Trump to lie to the public about the prosecution being a political witch hunt while the Judge kept her thumb on the scales for Trump.

This isn’t the first time Smith has been unfairly criticized by the Judge. He’s likely making a list in case the much-looked-for opportunity to appeal one of her rulings to the Eleventh Circuit manifests. (Realistically, I think this will happen only if she rules against the government on CIPA admission of evidence issues. Although she could do something off the wall, her rulings have been carefully drawn to avoid appellate review so far.)

The Judge made an exception in her ruling that is particularly problematic. It involves Trump’s selective prosecution motion, where he argues that he’s been targeted by the government for a political prosecution. Judge Cannon held that “The Court does not authorize Defendant Trump’s proposed redactions to witness statements in Exhibit 9.” She makes the same ruling in regards to a motion to suppress evidence obtained during the search of Mar-a-Lago by Trump.

This may sound innocuous or even like it’s a ruling in the government’s favor, but nothing could be further from the case. The Judge has already agreed to redact witnesses’ names from the motion because they would be exposed to risk if they were made public. Judge Cannon, as a former federal prosecutor, and based on specific arguments prosecutors made here, should understand that even when a name is withheld, revealing a witness’s testimony can be sufficient to identify them. She seems okay with that, though. That’s unacceptable in a case with a defendant like Trump.

Manhattan

Monday, Michael Cohen is back on the stand for more cross-examination. Prosecutors need to do some work to explain his flub on the October 24 call he had with Keith Schiller. Cohen testified on direct he called Schiller to get to Trump, who he advised about the deal to pay hush money to Stormy Daniels. But Trump's attorney, Todd Blanche, confronted Cohen with texts that suggested the call was about a 14-year-old who was placing harassing calls to Cohen. Cohen seemed to suggest that he discussed both subjects on the call, but it wasn’t clear, and the prosecution needs to clean that up.

There is a difference between deliberately lying, something Cohen has been forced to acknowledge he has done repeatedly, and having a lapse of memory about the sequence of a years-old phone call, one of many on a given topic. It will be important for Cohen to testify truthfully about whether he failed previously to recall that part of the conversation involved the 14-year-old and how he recalls it now that his memory has been refreshed.

More importantly, prosecutors can emphasize other evidence confirming that Trump knew of and approved the plan. That includes a pair of calls on October 26 the prosecution will undoubtedly hammer home in its closing argument. Cohen spoke to Trump twice early that morning to discuss the hush money payment. Later that morning, Cohen opened the account that was used to pay Daniels. It defies common sense to believe that Cohen would stake a loan on his family residence if Trump hadn’t promised to pay it back in advance.

Monday’s testimony will be very important for the outcome of the case. If Trump’s lawyers catch Cohen in clear lies made under oath in this case, the government is in trouble. But if he has an explanation for the one situation and there aren’t any more hits, they will be in better shape. As we’ve noted repeatedly, it all comes down to the jury, and whether they unanimously believe Trump was involved in the scheme. Given the weight of the evidence here, it’s hard to see how they could conclude that Pecker, Cohen, and Weisselberg acted alone; but ultimately, that call is up to the jury.

We don’t yet know if Trump is going to testify. The smart money says no.

Before the jury deliberates, they will not only hear closing arguments from the lawyers, they will be instructed on the law by the Judge. One of the most difficult issues in this case is understanding the part of the New York fraudulent business records statute that provides a violation is a felony, not a misdemeanor, if the records were created to aid in or conceal the commission of another crime. In Friday night's column, we learned more about how that works with former assistant Manhattan district attorney Karen Agnifilo, who explained that the best analogy is burglary. If I enter your home without permission, that’s trespass, a misdemeanor. But, if I do it with the intent to commit another crime while I’m there, it’s burglary, a felony. The false records violation works the same way. There is no mini-trial on the crime the defendant “intends to commit.” The People have to establish the intent to commit it, not the crime itself.

The court has previously ruled that the People can argue one or more of three different theories of what the “object” crime, the one that accelerates the misdemeanor into a felony, could be:

• the Federal Election and Campaign Act makes it a crime to make contributions to a campaign in excess of $2,000 per year by a person or $25,000 by a corporation. Cohen’s $130,000 payment to Daniels to help the campaign, clearly exceeded the contribution limit.

• New York election law 17-152 makes it a crime for two or more people to conspire to “promote or prevent the election of any person to
  a public office by unlawful means” so long as the conspiracy “is acted upon by one or more of the parties.”

• New York state tax law 1801(a)3 and 1802 criminalizes fraudulent tax filings, which Trump would have known would be made here since Cohen’s reimbursement for the hush money was “grossed up” to compensate him for taxes he would have to pay on the $130,000 when he recorded it as income on his tax returns.

Prosecutors focused on the New York election law theory at trial. They elicited evidence that Trump and the campaign were frantic after the Access Hollywood tape came out and desperate to suppress Daniels’ story because it could have spelled a death knell for the campaign at that moment. But there is some evidence to support all three of the legal violations that would convert this misdemeanor into a felony. We will learn how prosecutors intend to position their case in closing argument, which seems rather late to the federal prosecutor in me, but that’s how this issue works under New York law. Trump’s lawyers will argue that the prosecution failed to offer any evidence that directly establishes that Trump knew Cohen was violating contributions limits and that the falsification of records was done with an intent to hide the contributions.

Judges typically advise juries to bring their common sense to the jury room when they deliberate. The pattern jury instructions in New York talk about this in the context of advising the jury about drawing inferences from the evidence. If Judge Merchan uses the pattern instructions or something close to them, the jury will be told: “An inference must only be drawn from a proven fact or facts and then only if the inference flows naturally, reasonably, and logically from the proven fact or facts, not if it is speculative. Therefore, in deciding whether to draw an inference, you must look at and consider all the facts in the light of reason, common sense, and experience.”

Those instructions apply as much to the defense as they do to the prosecution. So, when the defense asks jurors to infer that the government has failed to establish elements of the crime beyond a reasonable doubt, the jury is entitled to use “reason, common sense, and experience” when they evaluate the evidence.

Georgia

Last Monday, Trump co-defendants in Fulton County, Georgia, Mark Meadows, Rudy Giuliani, Cathy Latham, and Michael Roman filed their notices of appeal with the Georgia Court of Appeals, joining defendant David Shafer in an appeal of Judge McAfee’s ruling that District Attorney Fani Willis would not be disqualified from the case. The procedure here is a little ponderous. After the court agreed that it would hear the appeal, it was still up to the defendants involved in the disqualification motion to file notices of appeal. Now that they have, the court will set a briefing schedule and the appeal can proceed. In other words, don’t expect a speedy resolution in this matter, which will likely go to the Georgia Supreme Court for consideration of whether they will hear a final appeal after the intermediate court reaches its decision. This case may be on an even slower track than the one in Florida.

Pro Practice Tip

In federal court and in many state courts, a defendant has a right to “allocution,” to make a statement to the court before sentencing. The Federal Rules of Criminal Procedure establish a number of items the judge “must” do before issuing sentencing. Allocution is among them.

A failure to provide allocution is reversible error, in the sense that it forces the judge to hold a second sentencing hearing and resentence the defendant. It doesn’t reverse the conviction, but it can delay finality in the case considerably. This happens from time to time, particularly in a case with a a lot going on. Because the case law establishes that this is reversible error, judges, their law clerks, and federal prosecutors usually catch any error that occurs before sentence is pronounced.

But that didn’t happen last week when David DePape, who was convicted of the 2022 attack on Nancy Pelosi’s husband, Paul, was sentenced to 30 years for assault and 20 years for attempted kidnapping. The Judge has already indicated he will hold a new sentencing hearing.

That’s your legal trivia for this week.

Steve Bannon

Bad news for Steven Bannon. He has to report to federal prison by Thursday to begin serving his four-month sentence for contempt of Congress. Bannon sought a delay, but prosecutors told the Judge it was time, and the Judge agreed.

Bannon responded to the order to report to prison by saying, “I’m shocked they want to silence the voice of MAGA.” Take him at his word. Bannon has used his “War Room” podcast to normalize some of the most repressive policies associated with Trump’s Project 2025.

We’re in this together,

Joyce