The Week Ahead

November 19, 2023

Monday morning, the Court of Appeals for the District of Columbia will hear argument in Donald Trump’s challenge to the gag order Judge Chutkan imposed in the election interference case. You’ll be able to hear the argument, which begins at 9:30 a.m. ET, here.

When the Judge granted Jack Smith’s request for the protective order, she said that no other criminal defendant would be allowed to “call a prosecutor deranged, or a thug, and I will not permit it here simply because he is running a political campaign.” But recall that what is commonly referred to as a gag order here is actually a very limited order that applies to everyone involved in the case, not just Trump. It prohibits them from making statements that “target” anyone on the prosecution team, defense lawyers or their staff, or court personnel. It also prohibits comments about "any reasonably foreseeable witnesses or the substance of their testimony." The order doesn’t restrict political speech. It is narrowly tailored to protect the process and the people involved in the process from harm.

More about the details of the order in our earlier post here.

Trump’s brief to the court argued that the Biden administration was attempting to silence its most prominent political foe. “No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office — let alone the leading candidate for President of the United States,” his lawyers wrote. Of course, they ignored the fact that the Judge has life tenure and is part of a separate branch of government. She doesn’t work for Joe Biden or take orders from him. And while they’re correct that this is the first time a presidential candidate has been subjected to a gag order, they neglected to acknowledge that Trump is the first presidential candidate to be under indictment—four times over—while campaigning for the White House, as well as one who is uniquely prone to inciting violence with his careless words.

In his brief, the Special Counsel wrote: “There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and…target specific witnesses with attacks on their character and credibility.”

We’ll get some sense of how the panel is leaning in argument tomorrow morning—it only takes votes from two of the three judges to uphold the gag order, but this one may well be 3-0, given the limited scope of the order and the outrageous behavior Trump seems incapable of reining in on his own. Criminal defendants aren’t allowed to get away with the level of misbehavior Trump has engaged in. There is no reason for him to get special treatment in this regard. The gag order is paused administratively while the appeal proceeds. Given Trump’s conduct since it’s been lifted, the panel should act swiftly to reinstate it.

The panel judges are:

• Patricia A. Millett, who was appointed by Barack Obama to the seat held by John Roberts before he became Chief Justice of the United States.

• Cornelia T.L. Pillard, also an Obama appointee. She is married to David Cole, the legal director of the ACLU

• Bradley N. Garcia is a Biden appointee who clerked for a Judge appointed during a Republican administration, Tom Griffith on the Court of Appeals, before clerking for Justice Kagan on the Supreme Court

The day before Thanksgiving is a big day for Trump’s lawyers. It’s their deadline for replying to Jack Smith’s response to their motions to dismiss the case. Trump’s lawyers asked for a longer delay from their original deadline last week. Judge Chutkan gave them until Wednesday. We did a deep dive on the substance of those motions here.

If Trump prevails on any of these motions, the case against him would be dismissed. None of them seem to rise to that level. Judge Chutkan is likely to rule promptly once this last set of briefs is in, in order to speed the appeal of issues that can be taken up in advance of trial, like presidential immunity, on their way in hopes the appeal will proceed speedily and not interfere with her March trial date.

A number of issues we flagged in last week’s “Week Ahead” post or previously saw important developments last week, and we’ll be keeping an eye on them this week as well.

In the Colorado 14th Amendment case, filed in an effort to keep Trump off of the ballot, there was an unexpected result! The Judge ruled that Trump had participated in an insurrection, but then concluded the 14th Amendment didn’t apply because the president isn’t a public official for purposes of the provision. The case will now work its way up to the Colorado Supreme Court. They could agree with the decision by the trial judge, who heard all of the evidence, that Trump engaged in insurrection and overrule her on the public official assessment, which would mean Trump would be removed from the ballot in Colorado. But keep your expectations in check here. That would almost certainly mean the issue would have to go to the U.S. Supreme Court for a decision, and underlying this case and proceedings in other states seems to be a healthy dose of hesitation to remove the decision about who the next president should be from the hands of voters.

In the New York Attorney General’s fraud case, Judge Engoron ruled against Trump on his motion for a mistrial without any briefing, saying the arguments were so speculative that would be a waste of time. Trump argued the Judge’s law clerk violated New York law on political contributions. The Judge first explained why she hadn’t and then pointed out it didn’t matter because she wasn’t the one making decisions in the case, he was. In the meantime, Trump filed a separate action against Judge Engoron challenging his gag order. The appellate judge has stayed the gag order temporarily while that court looks at the case, and Trump went straight back to conduct that would have violated it had it still been in effect.

In the Biden classified document investigation, there was reporting last week that Special Counsel Robert Hur, appointed to look into documents found in Biden’s post-vice presidential office and home, will not charge the President with criminal violations. This is precisely what we expected. Unlike Donald Trump, who was given every chance to return classified documents at Mar-a-Lago after the National Archives realized they were missing, Joe Biden (and Mike Pence, where prosecution was previously declined) both self-reported they had documents and returned them. Trump not only knew he had the documents, he arranged for them to be hidden from the government after receiving a subpoena. His deliberate, willful conduct is what separates him from Biden and Pence.

In the Fulton County case and the Mar-a-Lago case, there is news about trial dates. Fani Willis has asked for a trial date in August, likely in recognition of the fact that there are three other cases ahead of hers and that she anticipates her case will go on for months (by comparison, Jack Smith has estimated his election interference case will take six weeks at most). Willis says she expects her case will still be in progress in early 2025. But there may be some slack in Trump’s trial calendar, since Judge Cannon, last week, put off rulings on matters related to the introduction of classified documents at trial until a March 1 hearing date. Unless she suddenly kicks it into high gear at that point, that makes it unlikely those issues can be resolved in time for her current May scheduling. But, she still has that date on the books, making it technically unavailable for Willis or anyone else. Trump’s Atlanta lawyer Steve Sadow has asked the Judge for a hearing on the trial date in that case. No word yet on how quickly that will happen.

This week, I’ll be taking some time off to enjoy the rare alignment of the universe that permits all four of our (mostly) grown children to be home at the same time. Expect chicken pictures, and maybe a pie or two for good measure, but I’m going to take a little time off, although you can count on me to duck back in if there are major developments. In the meantime, I’d love to read your comments about your favorite Thanksgiving foods or traditions if you’re in the U.S. and any experiences you’ve had with them if you’re not!

We’re in this together,

Joyce