The Week Ahead

May 5, 2024

As of tonight’s post, there are over 275,000 subscribers to Civil Discourse, and on average, each newsletter gets around 300,000 views. That suggests that you are sharing the newsletter with friends in addition to reading it yourselves, which makes me feel like we’re a success together. It’s clear we have work to do to keep the Republic and then to rebuild our democratic institutions. It’s an honor for me to get to be a part of that with all of you. Thank you for being here.

There is a lot of legal news happening in the moment, and not all of it involves, at least not directly, Donald Trump.

The Justice Department indicted House Democrat Henry Cuellar of Texas and his wife last week in the Southern District of Texas. Read the full indictment here. The couple is charged with bribery and money laundering in connection with their ties with a bank in Mexico and an oil and gas company controlled by Azerbaijan. The conduct occurred from 2014 to 2021. Among the allegations, the couple took nearly $600,000 in bribes for Cuellar to advance the interests of the country and the bank in the U.S. The charges include:

• two counts of conspiracy to commit bribery of a federal official and to have a public official act as an agent of a foreign principal, which carries a five-year maximum sentence;

• two counts of bribery of a federal official, which carries a 15-year maximum sentence;

• two counts of conspiracy to commit honest services wire fraud, which carries a 20-year maximum sentence;

• two counts of violating the ban on public officials acting as agents of a foreign principal, which carries a two-year maximum sentence;

• one count of conspiracy to commit concealment money laundering, which carries a 20-year maximum sentence; and

• five counts of money laundering, which carries a 20-year maximum sentence.

The charges are serious, and the speaking indictment contains extensive information, suggesting that although Cuellar has publicly denied guilt, his 20-year career in Congress is over. It's not about politics. It's about violating the law. Public officials who abuse the public’s trust should be removed from office, a political consequence, not a criminal one. Cuellar is entitled to the presumption of innocence until proven guilty, but it's time for Democratic leaders to have a conversation with him about resigning. Among the allegations in the indictment: In March 2015, the congressman expressed concerns his arrangement with the bank would be discovered and asked an official to create a middleman to “disguise” payments. “We need to find another scheme,” Mr. Cuellar told the official, according to the indictment.

The case has been set for trial on July 8, although, of course, that could be delayed. Still this shows just how easy it is to set a trial date and what the scheduling expectations are in a complicated public corruption case. Motions are due by June 10 and there will be a pre-trial conference on July 1.

It’s not impossible to indict members of Congress when they violate the law. There are still lingering questions about members of Congress who appeared to be involved in efforts to block certification of the vote in 2020. Dealing with the insurrection and the Big Lie is a monumental effort for a justice system. But the consequences of not dealing with it are far worse. We don’t know if DOJ evaluated any cases involving members of Congress and decided no crimes were committed, if crimes were committed and they lacked the evidence to prove them, or if a decision was made not to pursue them and leave it up to the political process. It is clear DOJ knows how to indict a Congressperson when they believe it is merited.

We’ll likely learn more about this case in the coming week, including whether the fast-track schedule is likely to stick.

In the Southern District of Florida, where Judge Aileen Cannon is overseeing the prosecution of Donald Trump, the Judge herself drew a little fire last week. NPR issued a report that concluded: “Dozens of federal judges failed to fully disclose free luxury travel to judicial conferences around the world, as required by internal judiciary rules and federal ethics law … As a result, the public remained in the dark about potential conflicts of interest for some of the United States' top legal officials.”

Judge Cannon attended two seminars at a luxury resort in Montana. Disclosures for the events, which were privately funded, were not posted online “until NPR began making inquiries.” When NPR sought an explanation, the Clerk of Court responded in an email, writing, “the absence of the disclosures was due to technical issues and that ‘Any omissions to the website are completely inadvertent.’” The seminars were funded by the George Mason University Foundation. George Mason is home to the Scalia Law School. Just over a year ago, we discussed that school’s work to develop strong relationships with some Supreme Court Justices in this edition of the newsletter.

Although many of the problems were described as failures by overloaded administrative staff to make information public in a timely fashion, pushing the responsibility off on staff is inadequate. With confidence in the courts lagging, the Chief Justice has more than adequate resources to deploy increased support if it’s needed. How are litigants supposed to have confidence in the courts if it’s impossible to determine if a judge has bias? It’s clear that this issue requires greater attention. NPR concluded that some of the judges failed to file the disclosures they are required to provide in a timely fashion. Some of the conferences involved topics that could be of particular interest to people involved in cases in front of them. The report noted that “At one event, a far-right German politician with a history of racially inflammatory and anti-immigrant statements made a presentation to dozens of judges. At others, judges heard from an advocacy group that uses lawsuits in federal court to change environmental policy, as well as from corporate CEOs in the oil and pharmaceutical industries.”

Judges are required to file disclosure forms within 30 days of a private event, detailing the identity of the host and the entities that provided funding, as well as speakers and topics. In addition, judges, like other government employees, must report any payment or reimbursement for privately sponsored trips on their annual financial disclosure forms. But NPR found that “in nearly 40 instances, judges attended events at luxury resorts but failed to properly file a report within 30 days.” Some forms were months or years late and were filed “only after NPR began asking questions.” There were 13 cases where judges failed to report these trips on their financial disclosure forms.

This situation points to an ongoing deficit in the commitment of the federal judiciary to upholding the public trust in the institution. People who get life tenure in exchange for doing their jobs should take that trust more seriously than the courts appear to be doing, although the candor of some of the judges when NPR called to ask them what’s up is laudable. Judge Philip Gutierrez in the Central District of California failed to file a disclosure within 30 days of attending a judicial seminar at a resort in Palm Beach, Florida. When contacted by NPR he told them, "I apologize. It's important. I'm embarrassed," and immediately uploaded his disclosure. We’re all human, but when failure to disclose aligns with potential conflicts of interest for judges and they occur on this scale, there’s a serious problem that needs to be addressed. We’ll see if the Chief Justice acknowledges the issue in the coming week or continues to ignore it, as with other ethics problems plaguing the public’s confidence in the courts.

In the classified documents case in front of Judge Cannon, Thursday was supposed to be the deadline for Trump and his co-defendants to file their disclosures of any expert witnesses they plan to use as well as notices under Section 5(a) of the Classified Information and Procedures Act (CIPA) of any classified discovery materials they intend to use at trial. Section 5(a) is important because it requires defendants who plan to disclose classified information to provide written notice far enough in advance of trial to permit the government to obtain rulings from the court and appeal if necessary to avoid a “graymail” situation where defendants force the government to dismiss charges against them to avoid disclosure of classified information that would damage national security. Expect this to be a hotbed of activity. Last week Trump lawyer Chris Kise filed a “Notice of Unavailability” through May 14. The Judge doesn’t seem to have issued an order extending the Section 5(a) deadline, and Trump has other counsel, although Mr. Blanche is tied up in Manhattan at the moment. It’s not clear how Kise’s unavailability applies to defendants who are represented separately.

But it’s clear that Judge Cannon needs to get on with setting a new trial date. This case is still set for May 20, and that’s not going to happen.

Late Friday, the D.C. Court of Appeals suspended former Trump lawyer John Eastman on an interim basis.

Eastman has asked the court in California, where he has also had his license revoked on an interim basis and is pending a final decision, to return him to active status while he waits. Last week, the court refused his request, noting he “fail[ed] to demonstrate that he no longer presents a threat to the public.” Ouch. And it's about time. Disbarring lawyers who participated in Trump’s illegal schemes is important, and despite the slow pace, it happens more quickly than criminal cases, although many of these folks, including Eastman and Giuliani, have been indicted. Too bad there isn’t an equivalent to disbarment for members of Congress.

Trump returns to court in his Manhattan criminal trial this week. As the media inevitably follows the ups and downs each day, remember that this isn’t a case about any one witness or piece of evidence. It’s about the steady accumulation of evidence to establish each of the elements the People have to prove to convict on each count in the indictment.

Hope Hicks was an important witness in relation to that, but she was not a smoking gun fired by the prosecution. She added some important evidence to the case, helping to tie Trump to the payment made to Stormy Daniels close to the election after the furor provoked by the release of the Access Hollywood tape. She dismissed the idea Michael Cohen would have made the payment without a guarantee of reimbursement as contrary to her assessment of his character. Hicks’ status as a reluctant witness for the prosecution gives her testimony credibility. But she also scored some points for Trump that will have to be dealt with through other witnesses. For instance, she testified that Trump was so worried about how this story would impact Melania and the family that he stopped delivery of the papers to the White House residence. There is evidence to the contrary, including efforts to delay the payment and even avoid making it after the election was over. But you can see how prosecutors, with each witness, keep track of the proof they’ve established and problems that still need to be dealt with. No one witness is the entire case.

More testimony this week. It’s possible we could see Michael Cohen or Stormy Daniels take the witness stand and it’s certain we’ll hear from more witnesses who are necessary to get key documents and key facts about them into evidence—the 11 false invoices, 12 false ledger entries, and 11 checks and check stubs the case is centered on. We are also still waiting for a ruling on the most recent set of allegations Trump violated Judge Merchan’s gag order.

So far, the prosecution has been handled with confidence and competence. There is no grandstanding in the courtroom, just a slow march to get to the point where prosecutors can ask jurors to return a verdict of guilty on all counts when they give their closing argument. It’s a circumstantial case, but that’s not unusual in a situation like this. It’s rare for a defendant to make a direct statement to a witness who will testify that they intended to break the law. So prosecutors will continue to establish links between Trump and the scheme that was executed to use false business records to conceal the payment to Stormy Daniels.

We’re in this together,

Joyce