The Week Ahead

February 4, 2024

This week, with oral argument scheduled before the Supreme Court on Thursday, we’ll be focusing on the litigation over the 14th Amendment, and whether the state of Colorado can remove Donald Trump from the ballot in that state. An audio feed of the argument will be live-streamed on the Court's website. The Court also posts the audio later in the day and makes transcripts available that afternoon.

Briefing isn’t quite over in the case. Trump’s reply brief is due by 5 p.m. Monday. Since he’s the petitioner, the party seeking to reverse the lower court ruling against him, he gets the closing brief. On Friday, the Court established the rules for oral argument.

We’ve addressed the substance of the arguments being made that under the 14th Amendment, Trump can be excluded from the state’s ballot because he engaged in insurrection after taking an oath to uphold the Constitution previously. There’s a good summary here. I continue to believe that what I wrote back in December of 2023 is where the Court will end up, even though distinguished conservative legal luminaries like former Fourth Circuit Judge Michael Luttig and George Conway have advocated for the 14th Amendment’s application here. My sense remains: “The courts’ job here is to determine the outcome based on the law. Whether they will stay in that lane is anyone’s guess right now. Based strictly on the language of the 14th Amendment, Trump looks ineligible. But here’s the tension I started by referencing: some of the justices may believe it would be better for the country to allow voters to reject Trump at the polls because ‘that’s how a democracy is supposed to work.’ It seems likely to me that they’ll look for a procedural way out of removing him from ballots across the country.”

I’ll be interested in reading everyone’s thoughts about how the Court should rule as we approach the argument later this week.

Don’t forget that whether Trump engaged in insurrection or not and whether he’s eligible to run for office again is only an issue because Senate Republicans failed to convict Trump when he was impeached after January 6. They could have put the matter to rest back then and spared the country this trauma. Donald Trump can only run for the presidency because they failed us.

We may see more fireworks in the Mar-a-Lago this week, where Jack Smith has shown he is willing to go to the mattresses over Trump’s claims that the government is withholding discovery from him. Although we don’t know what happened in the sit-down his team had with Judge Aileen Cannon about handling classified discovery and evidence last week, on Friday night, Smith filed a 67-page response to Trump and his co-defendants Walt Nauta and Carlos de Oliveira’s motion for additional discovery, focusing mainly on bogus claims of political bias and selective prosecution. In addition to rejecting Trump’s claims he’s entitled to additional material the government hasn’t produced, Smith’s pleading is a full-blown refutation of the Trump camp’s claim that the prosecution is politically motivated.

Smith rejected Trump’s claim he’s entitled to more discovery, citing his failure to show legal grounds or meet the legal standard to compel discovery in support of his “false claims.” Smith rejected, in no uncertain terms, Trump’s position that the prosecution is a political maneuver by the Biden Administration: “To be clear, the defendants’ requests are predicated on a false narrative. The investigation and prosecution of this case have been appropriately driven by the facts and the law, not by any form of political bias.”

One particularly interesting part of the government’s response related to a suggestion in Trump’s motion that he had some form of security clearance issued by the Department of Energy that continued after he left the White House. Smith eviscerates that claim in response to Trump’s effort to force the government to search for more evidence that such a clearance existed. Trump argued that the government had an obligation to search “Scattered Castles,” a database of security clearances maintained by the intelligence community, as well as a similar one maintained by the Department of Defense. But Smith pointed out that he had already produced a search in Scattered Castles, “which yielded no past or present security clearances for Trump.” Same result in the Department of Defense system.

Trump also asked for discovery about a special “Q clearance” he held through the Department of Energy. Q is a type of clearance granted without a background check in the interests of national security. Smith advised the court he had already produced a memo to Trump that showed his Q clearance, granted at the start of his presidency, was terminated shortly after it ended. The end date was made retroactive to the end of Trump’s tenure. That means that Trump’s ongoing possession of classified material and his failure to return them pursuant to a subpoena—long after the Q clearance was terminated—can’t conceivably be justified on this basis.

And, in case you missed it, the Daily Beast reported that Trump co-defendant and body man Walt Nauta was removed from his position at the White House due to multiple allegations of sexual misconduct in the weeks before Trump hired him to come to Mar-a-Lago. In the summer of 2021, Nauta lost his White House security clearance and was demoted by the Navy. The Daily Beast reported that the allegations against Nauta included revenge porn, adultery, and harassment, which all violate Navy regulations.

The date isn’t clear, but it’s possible that as early as this week, Robert Hur, the Special Counsel investigating the discovery of classified material from Joe Biden’s days as Vice President, which Biden voluntarily disclosed, could issue his final report. Biden’s possession doesn’t merit prosecution, and it’s almost certain he won’t be charged. But unlike the way the Special Counsel handled a similar investigation into Vice President Mike Pence, who also retained classified material and voluntarily disclosed it, and where the decision to not prosecute was announced with little fanfare and not much more, Biden’s team appears to be preparing for a more detailed and perhaps critical report.

DOJ does not typically release any information beyond its decision when it declines to prosecute a case. But, the Special Counsel will write a report to the Attorney General when his work is finished. Merrick Garland has promised transparency. It’s hard to miss the echoes of Jim Comey and Hillary Clinton here if DOJ bends over backward to try and look like they’re evening the score here. Biden found the documents on his own—the government didn’t have to come looking for them. He returned them promptly and voluntarily; there were no lies, flouted subpoenas, obstruction of justice, and therefore, no violation of criminal law. But look for Trump to jump on this and hound Biden while claiming he, himself, is the victim of political persecution. I’m growing weary, anticipating his response and all the disinformation he’ll pitch.

Fani Willis finally responded to allegations made about her relationship with special prosecutor Nathan Wade last Friday, asking Fulton County Superior Court Judge Scott McAfee to cancel the evidentiary hearing he had scheduled. Willis acknowledged the relationship but said it developed after she brought Wade on board and that it did not create a conflict of interest. And, she pointed out, the relationship has no bearing on whether defendants criminally conspired to try to overturn the 2020 election.

Willis is correct that under these facts, there is no basis to disqualify her from the prosecution. The two of them are on what my friend Barb McQuade calls “the same side of the V,” meaning they are on the same side in this prosecution; they’re on the same team and there’s no reason the relationship alters their incentives to pursue justice in this case. Under Georgia law, that only exists in a situation like one where a special prosecutor only gets paid if there is a conviction and they have divided loyalties.

Willis and Wade’s affidavits aver that they were not in a relationship when he was hired and that when they traveled together, often with his mother along, they split expenses roughly evenly. But despite the legal technicalities here, which suggest that Fulton County voters are entitled to have the case managed by the District Attorney they elected, Willis’ delay in responding permitted the salacious allegation to fester and be treated as though they do merit recusal. It’s a bad look for her, and I’ve heard more than one experienced attorney assume that the relationship is enough to disqualify her. None of this is what we expect of a prosecutor handling a case of such significance. Assuming Judge McAfee permits her to remain on the case, she will be a nonstop target for the former president. Willis would do well to proceed with humility and take responsibility for making such an unnecessary misstep.

For his part, Judge McAfee asked Mike Roman’s lawyer to file a response explaining why he should still hold a hearing. The response was a weak one, although the lawyer did claim to have evidence that disputed some of Willis’s affidavit. The lawyer accused the prosecutors of trying to “escape accountability” in a case where “freedom and lives are at stake.” We’ll wait to see, likely this week, whether Judge McAfee will go ahead with a hearing or decide the issue on the briefs.

It’s going to be another one of those weeks! Thank you for being here at Civil Discourse, especially to all of our new subscribers—we are over 215,000 now. Lots of work ahead of us this year.

Finally, for those of you who are new here, this is my periodic reminder that I’m in no way kin to Ohio Senator J.D. Vance, whose groveling behavior when it comes to Trump is reprehensible.

We’re in this together,

Joyce