The Week Ahead

October 29, 2023

This coming week is going to look like what we can expect to see more of from here on out: Trump developments in both civil and criminal cases, with political implications on all sides. The season is upon us and with the New York civil fraud case in high gear, there will also be a flurry of activity in the criminal cases. We’ll try to stay on top of the most important developments as they occur.

My practice is to link you to the original documents, usually court pleadings, so you can read them yourself if you like. I think it’s important to have access to those primary sources. All too often, the legal system is glorified into something that people who haven’t been to law school can’t understand. I don’t think that’s the case. With a little explanation of court procedure and legal terms, and some time, you can decipher what’s happening for yourself if you choose to. Sometimes my analysis may be enough for you on a given issue, but I want to continue to encourage you to explore more deeply if a motion or a case interests you. I’ve really enjoyed some of the discussions in our comments forum, which reinforces my belief that we are smart, capable people who can understand what’s taking place. That’s important in a political environment that all too often thrives on disinformation. So I’ll continue to provide links to the documents where available.

Can Colorado Remove Trump From The Ballot?

Last Friday, a Colorado judge denied several of Donald Trump’s motions to dismiss a case that seeks to remove him from the ballot in that state ahead of a Monday evidentiary hearing. The Colorado Supreme Court was quick to affirm, in light of the state’s January 5 deadline for approving the ballots that will be used in the upcoming 2024 election. Colorado Judge Sarah Wallace, who is hearing the matter, has said she hopes to decide the case before Thanksgiving.

The lawsuit was filed in September by Citizens for Responsibility and Ethics in Washington (CREW) on behalf of six Republican and unaffiliated Colorado voters, including former state, federal and local officials. You can find the complaint here and the Judge’s ruling denying Trump’s motions here. This is a civil case that seeks to remove Trump from the ballot in Colorado by arguing that he should be disqualified from holding public office because his involvement in January 6 violated Section 3 of the 14th Amendment.

Here’s the text of that section:

“Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”

One issue that’s been flagged with Section 3 is that it doesn’t include the mechanism for preventing a prohibited person from taking office. It is silent as to who and how a determination that someone has “engaged in insurrection or rebellion” must be made. Although challenges made to remove members of Congress who were involved in the efforts to block certification of the 2020 vote failed to succeed, one state challenge, in New Mexico, led to a state commissioner being barred from holding public office for life. A district judge found the man, who had been the leader of “Cowboys for Trump” during the attack on the Capitol, violated Section 3 by participating in an insurrection.

CREW argues that that Section 3 of the 14th Amendment is self-executing, which means that there is no need for any additional sort of laws to be passed that specify how it should be enforced. They argue it can be put into action using applicable state laws. They base their argument on the language of the Constitution and Supreme Court precedent that they say holds that congressional action (passing a law that sets forth how the provision should be enforced) cannot be required to activate Section 3 and that states have historically enforced it consistent with their own laws.

In denying Trump’s motions, Judge Wallace clarified that whether Trump can be excluded from the ballot for violating Section 3 is an issue that can be decided in a state case like this one that challenges the appearance of Trump’s name on the ballot under Colorado law (a “ballot challenge” lawsuit). She called Trump’s assertion that the Colorado GOP could choose which candidates appear on the ballot “absurd” and said that whether Colorado’s Secretary of State has the power to block Trump from the ballot based on Section 3 of the 14th Amendment “is a pivotal issue and one best reserved for trial.” 

Among the issues we can expect to see surface at trial are:

• whether Section 3, which was passed following the Civil War, applies to situations that occurred after that war. Section 3 does not contain any language limiting it in this way.

• whether the president is an “officer of the United States” so that the law includes him in its ambit. The Constitution repeatedly refers to the president as someone who holds an “office” and it’s a semantic trick to argue otherwise. Trump himself seems to have advanced the view that a president is an officer of the United States in the E. Jean Carroll case, where he argued he was entitled to representation by DOJ because of his role in federal government.

The more difficult issue involves whether Trump must be criminally convicted, or at least charged with insurrection, to be disqualified under Section 3. The courts may decide that in the absence of a judicial determination, questions about whether an individual is fit to serve should be decided by citizens in an election.

A similar case is pending in Minnesota. It will be heard by Minnesota’s Supreme Court on Thursday. In Minnesota, primary candidates’ names must be submitted by January 2, 2024, for the March 5, 2024, primary, and absentee voting begins January 19, 2024. The Minnesota Supreme Court issued an order that indicated that before it would permit discovery to proceed in that case, “we will first address threshold and potentially dispositive legal issues of justiciability and the legal construction of Section 3 of the Fourteenth Amendment to the U.S. Constitution,” which doesn’t sound like good news for those seeking to bar Trump from the ballot there. But at least the courts seem to be treating these cases like the urgent matters they are, given how quickly these early voting dates will be upon us. Both the Colorado and Minnesota cases were only filed in September of 2023 but ballots have to be approved far enough in advance for their printing to be complete in time for primary voting to begin. Both Colorado and Minnesota courts are moving quickly.

Whether the 14th Amendment should be invoked against Trump and others involved in the insurrection has been hotly debated ever since the idea was first introduced. There are good arguments on both sides of the issue. Where do you stand?

What Will the Trump “Kids” Have To Say

Beginning with Don Jr., Eric, and Ivanka, the Trump “kids” will all have their turn in court in the New York Attorney General’s civil fraud case beginning this week. They are being called by the Attorney General as part of her presentation of the evidence, called her “case in chief.” The former president testifies the following week. Testimony is under oath, which subjects anyone who testifies in a provably false way to potential perjury charges.

Trump again attacked the Judge on Truth Social, calling him crazy and insinuating he’d refuse to file appellate court rulings, which isn’t the case. In a subsequent post, he wrote that the Judge was “grossly incompetent,” “a partisan political hack” and a “Radical Trump Hater.” Trump claimed the the New York civil fraud case, brought under New York state law, by New York’s state attorney general, in New York state court, is “a Biden election interference scam.”

Trump’s attacks on others involved in his cases as unethical, racist, crazy and lying go beyond hyperbolic. It is a deliberate attempt to inflame the most volatile people among his followers. Anyone who doesn’t yet realize Trump would, quite literally, burn the country down to save his business and spare himself prison isn’t reading the room. And we enter dangerous terrain with Don Jr. testifying this Wednesday, Eric scheduled for Thursday, and Ivanka on Friday. The former president gets his chance to bat cleanup on Monday, November 6.

Trump is especially spun up about Ivanka testifying, saying it was unfair of the Judge to force her to testify, since she’s been dismissed as a defendant in the case. He conveniently overlooks the fact that most witnesses in a case aren’t plaintiffs or defendants. In Ivanka’s case, she’s a fact witness who was around for many of the transactions and meetings that are called into question in the Attorney General’s $250 million lawsuit. Who better to testify than someone with first hand knowledge? Ivanka was dismissed from the lawsuit because her direct participation happened too long ago to come within the “statute of limitations”—the number of years back the AG is permitted to go with her allegations. Fortunately for Ivanka, she left Trump Organization for the White House in 2017, which puts her beyond the reach of New York law as a defendant, but does nothing to rule her out as a witness.

Remember, Judge Engoron’s protective gag order, which prohibits Trump from discussing courtroom personnel, is still in place. Trump has been fined twice under it. Whether he makes it through the testimony of his three adult children, followed by his own, without violating it again seems dubious. We don’t know how Judge Engoron will react if there is another violation—will he continue to impose increased fines or jump to something more serious like a contempt finding? That likely depends on how egregious and intentional the next violation is. The Judge will hold off on imprisonment unless it’s an extremely serious violation, but look for him to impose time in custody if a violation merits it.

Motions in Trump Criminal Cases

Sunday evening, Judge Chutkan reinstated the gag order in Special Counsel Jack Smith’s election interference case. On October 20, she imposed a temporary administrative stay to give Trump the opportunity to challenge it. Tonight, she denied Donald Trump’s motion and put the gag order back in place.

Trump blathered about Mark Meadows, a potential witness against him, while the gag order was stayed. Tonight, after it was entered but possibly before he was aware of it (PACER, the Courts’ online filing system has been glitchy all night), Trump had this to say about his former Attorney General, Bill Barr

Even if Trump is entitled to grace over the timing of these posts, criminal defendants don’t get to go around making a case against witnesses for the prosecution on social media, in effect, trying their case in public instead of waiting for a court date. At arraignment, the magistrate judge took the unusual step of admonishing Trump against behavior like this. He was on notice from the get-go. His conduct is now cumulative across multiple cases, both civil and criminal, against him.

In a 2022 case where Trump tried to prevent Congressional January 6 committee investigators from obtaining executive branch records related to the assault on democracy, Judge Chutkan ruled that “presidents are not kings and plaintiff is not president.” Trump is committed to testing whether she meant it (and undoubtedly accusing her of bias if she does). He had this to say Sunday evening, an apparent response to learning she had reinstated the gag order:

Trump knows the Biden Administration doesn’t control this or any other federal judge’s decision-making process. It’s a deliberate effort to further undercut public confidence in the courts and take the sting out of any convictions against him before the election. Trump is certainly entitled to engage in political speech. The Judge is right to permit it. But it’s important for the public to understand that the man who is constantly trying to diminish our institutions is not fit to lead them.

Hunter Biden Seems To Be Inching Towards A Trial

Finally, it continues to look like Hunter Biden, after his guilty plea went awry earlier this year, is on track to contest the indictment against him in a trial. This Friday, his lawyers will be in court to argue pre-trial motions. It’s not clear whether Hunter Biden will be in court as well.

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Lots going on this week, and this is only the tip of the iceberg. There are motions across the cases against Trump under consideration. The Manhattan district attorney’s prosecution of Trump in connection with the payments to Stormy Daniels has been flying under the radar for a while, and there are issues brewing there. And still no word on a new trial-date setting in Fulton County, Georgia. So, expect more to come.

We’re in this together,

Joyce