The Week Ahead

December 3, 2023

There’s going to be, as you would expect, a lot going on this week. We are in the find out era, where Trump not only has four criminal cases proceeding simultaneously, but also a smash of civil cases. Last week, the federal appellate court in DC resurrected the lawsuit against Trump over January 6 and the second E. Jean Carroll trial is coming up in January. This week, we’ll see the Trump Organization putting on its side of the case in the New York Attorney General’s fraud trial, with Eric Trump testifying for the defense on Wednesday and others following. We’ll be discussing all of these developments as they take place this week.

There are additional matters we need to focus our attention on this week, including events at the Supreme Court that are less likely to garner substantial media attention. We start there.

Monday at the Supreme Court

The Court will hear oral argument in a case you may not have heard much about, Harrington v. Purdue Pharma. It’s a bankruptcy case, which puts it firmly in the category of legal issues I didn’t expect to find myself writing about when I started Civil Discourse. But here’s why it matters: the case is an effort to reverse the Second Circuit Court of Appeals’ sign off on a multi-billion-dollar bankruptcy plan for Purdue Pharma—the company that produced the opioid OxyContin. The plan would protect members of the Sackler family, the principal owners of Purdue, from any civil liability for opioid-related claims.

In other words, it’s a fairly standard (read: boring) bankruptcy case with huge implications for not only the Sacklers—who’ve skillfully maneuvered to protect the family’s checkbooks from people who lost loved ones as the highly addictive drug OxyContin was aggressively marketed, leading many people on to the much cheaper opioid Heroin—but also for future corporate entities who seek to use bankruptcy to avoid liability. The plan has garnered support from creditors, municipalities and victims, who believe it ensures they will receive compensation and funding for opioid recovery projects. There are good arguments on both sides. We’ll see how the Court is leaning after tomorrow.

Also this week in the Supreme Court, the Justices are expected to return as early as Friday to considering a matter they had planned on taking up in conference last week before the news of Justice Sandra Day O’Connor’s death. In three cases, men convicted in connection with January 6 are challenging the charge of obstructing an official proceeding on appeal. They were each previously convicted by a jury on that charge and the court of appeals affirmed. Now they’re asking the Supreme Court to reconsider.

Donald Trump has been charged with the same crime. The Justice Department says the term “official proceeding” includes proceedings before Congress. The defendants say it does not, because the statutory provision they were charged with violating was passed followed the Enron accounting debacle, and Congress didn’t intend for it to be used, as the government has here, for events like January 6.

The Supreme Court has two choices. They can decline to hear the case, which means the Court of Appeals ruling would stand, the three defendants’ convictions would be affirmed, and the case against Donald Trump could proceed. Or, the Court could agree to hear the matter. If they take it up, look for Trump’s lawyers to immediately file a request to delay proceedings against their client before Judge Chutkan until the matter is resolved.

Jack Smith has two counts unrelated to the interference charge pending against Trump, but of course, delay is the enemy of justice here. No word on whether Justice Clarence Thomas will participate in consideration of this or other matters related to January 6 given his wife’s connection to those events. He did not vote on a recent matter involving John Eastman. Eastman clerked for Thomas during the 1996-1997 term of Court.

Tuesday in the Special Counsel’s Office

On Tuesday, the government has to file a 404(b) notice in the District of Columbia election interference case. That means they’ll be providing Donald Trump with notice of any crimes, wrongs, or other bad acts he may have committed, that are not part of the indictment, but that the government wants to offer into evidence at trial. Decisions about whether 404(b) information can be presented to a jury is left to the discretion of the trial judge, and these decisions aren’t reversible unless the judge abuses their discretion.

The provision is part of the Federal Rules of Criminal Procedure. It broadly prohibits the use of “Evidence of any other crime, wrong, or act…to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” In other words, you can’t introduce evidence that a defendant is frequently a lying liar to show that they lied on the day in question. Prosecutors can’t insinuate that just because a defendant is of bad character, or committed earlier crimes, he must be guilty of the charges against him now.

But there are also some exceptions. Evidence of a prior crime, for instance, can be offered to prove “motive, opportunity [to commit the crime], intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Expect Jack Smith to have some important evidence he wants to get in under this rubric; this type of evidence is commonly used to show intent or knowledge, and here, it may be useful for virtually all of the other purposes the rule identifies. At the same time, Smith has to be careful not to overreach and stray into the prohibited “bad character” territory which could lead to reversal on appeal of any conviction he may obtain. Expect him to focus on proving Trump’s state of mind when it comes to election fraud and the absence of a good faith belief that the path he was setting the nation on would not result in the type of obstructive violence we saw on January 6—in other words, it was no mistake.

Prosecutors must give a defendant “reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.” Smith will also have to advise Trump about the permitted purpose he believes he can offer any 404(b) evidence for and the reasoning in support of his view. This, coincidentally, forces Smith (or perhaps gives him the opportunity depending on your point of view), to educate the public a fair bit more about his case.

Wednesday Miscellaneous

Also on Wednesday, my chickens are due to get a special dose of Verm-X, which helps them maintain their gut health in this colder winter weather. I don’t guess that’s what you come to The Week Ahead to learn about, but somehow, this ended up mixed in with my legal calendar.

Wednesday in Colorado

Wednesday, the Colorado Supreme Court takes up the appeal from a trial judges decision that Trump would not be removed from the ballot after voters challenged his inclusion, arguing he ran afoul of the 14th Amendment to the U.S. Constitution by participating in insurrection after taking the oath required of a public official to serve the country.

There’s an interesting dynamic here. You’ll recall the trial judge heard extensive evidence before making a finding that Trump engaged in insurrection. Appellate courts give great deference to the trial court’s factual findings, because they hear the evidence first hand and have a better chance to evaluate it than the appellate judges, who can only read the “cold” record, do. An appellate court has to find reasons to believe the trial judge really got its assessment of the evidence wrong, arriving at an unwarranted evaluation of the evidence, to reverse. Trump has, of course, appealed the court’s finding that he participated in insurrection.

The reason the trial court gave for not removing Trump from the ballot despite this first finding, is that it ruled, as a legal matter, that Trump wasn’t an “officer of the United States.” Section 3 of the 14th Amendment specifies who the provision prevents from holding office:

The appellate court evaluates decisions about matters of law by a trial court “de novo.” That means they take an independent look at it, because they are just as capable as the trial judge, if not more so, of reasoning out the correct answer to a legal issue. So the question is, whether the Colorado Supreme Court might find fault with judge’s ruling here. The lower court’s decision came as something of a surprise, because it exempts the president, alone among electeds, from the prohibition against future office holding following an insurrection.

So, where does that leave us? We’ll watch these proceedings with interest. Could Trump end up appealing his removal from the ballot in Colorado to the U.S. Supreme Court while he’s running for office? Stay tuned.

In the New York Attorney General’s Fraud Case

Eric Trump returns to the witness stand Wednesday in the New York civil fraud case, testifying for the defense this time. Meanwhile, we wait to see how long his father can go before he violates the newly reinstated gag order in that case.

Although closing arguments now won’t happen until January—they were originally scheduled for December 22—Trump has a new problem to contend with here. The court appointed monitor, retired federal judge Barbara Jones, who is overseeing the company’s financial statements, advised the court that a transfer of about $40 million in cash had not been disclosed. The money was used by Trump to pay $29 million in taxes, to pay the amount of the $5.6 million judgment against him in the E. Jean Carroll case into the court so he could take an appeal, and to pay insurance premiums.

While it appears Trump may get off with no consequences here, Judge Jones filed a report with Judge Engoron noting that Trump, his company and the other defendants are required to inform her when they make transfers out of Trump’s trust that have an “aggregate value in excess of $5 million.” She related that she had discussed the situation with the defendants who agreed they would not transgress again. The piggybank cannot be raided again.

No word on whether Judge Engoron intends to take the situation any further.

Texas

Finally, a footnote regarding a court ruling in Friday on a case we discussed over the summer. DOJ challenged unilateral action by Texas, which put up dangerous barriers meant to keep migrants from crossing the Rio Grande without federal approval. The barbed wire and spinning buoys caused serious injuries on multiple occasions. Dead bodies were found in the water shortly after the barriers were put in place. DOJ sued, citing a provision that prevents a state from taking independent action in U.S. waterways.

Last week, the Fifth Circuit affirmed a decision by a trial court that ordered Texas to remove the buoys from the Rio Grande. They held that the state had in fact violated laws governing navigable waterways of the United States by placing barriers along the border with Mexico. The decision also noted that the risk the buoys pose to migrants was “supported by Texas’s own statements noting the treachery of venturing across the Rio Grande.”

When Governor Abbott put up the barriers, he proudly announced “he was not ‘asking for permission’ for Operation Lone Star, the anti-immigration program under which Texas constructed the floating barrier,” the district judge wrote. Now the Fifth Circuit has told the Governor that permission from the federal government is precisely what he needs before obstructing navigable waterways of the United States. Abbott will have to take his barriers down—unless he can convince the Supreme Court to give him a stay while he pursues a further appeal. Given the stinging action by the Fifth Circuit, that seems unlikely.

It’s going to be another full week.

We’re in this together,

Joyce