The Week Ahead

November 5, 2023

Look for this week to start off with a bang, as Donald Trump takes the witness stand in New York on Monday. After Donald Trump, Jr., and Eric Trump testified last week to mixed reviews about their effectiveness, Trump himself, volatile temper, toddler-ish lack of self control and all, will take the stand on Monday. Judge Engoron has already ruled against the Trumps and Trump Organization on fraud claims that, if they succeed on appeal, will end the families’ ability to conduct real estate business in New York. At issue in the current proceedings is how much profit they have to disgorge in light of the fraud—New York Attorney General Tish James has asked for $250 million. There are also six claims involving the submission of false statements for the Judge to decide.

This is a civil, not a criminal case. No one goes to prison at the end of it. But the case is on track to put an end to the myth of Trump as a high flying, successful businessman. When Trump takes the witness stand, we’ll get a sense of whether he has the ability act in his own best interest with his back against the wall—Jack Smith and Fani Willis will undoubtedly be watching to see what kind of a witness he makes in his own defense.

One problem Trump faces is that lawyers from the Attorney General’s office will confront him with the inconsistent practices the Trump Organization used in reporting valuation on properties for purposes like obtaining loans and insurance. Take Mar-a-Lago: Trump testified at his deposition that it was worth $1.5 billion. But that was a whimsical value with no real support beyond Trump’s “belief” that was how much his property was worth. And, he acknowledged his estimate was based on the assumption the property could be converted into a private residence. Of course, Mar-a-Lago is a club and Trump is bound by deed restriction he entered into with Palm Beach in 1993 that requires that it remains a club. Trump made up a number and based on on circumstances that could never exist.

The Judge can use all of this, as well as other evidence, to evaluate how much the Trumps must pay to the state of New York in damages.

Ivanka is scheduled to testify on Wednesday, despite her efforts to get out of it. Her lawyer told the Judge she would face “undue hardship” if forced to testify “in the middle of a school week,” which led the internet to blossom with photographs of Jared and Ivanka on vacation trips around the globe and without their children. Ivanka was also mocked for a recent trip to hang out with the Kardashians.

Fun and fashion, yes. Grown-up responsibilities, no.

Ivanka hasn’t been deposed by the Attorney General, and unless she’s secretly cooperating—and that would have to be a very well kept secret at this point—the government doesn’t know what she’ll say when she takes the witness stand. Lawyers in the Attorney General’s position typically live and die by the rule that you don’t ask a question in court unless you know the answer. If you ask that question, you run the risk of suffering a fatal blow to your case. So, what testimony does the Attorney General expect to extract from Ivanka that’s worth the risk? One possibility is that the Attorney General expects to elicit damaging admissions from Ivanka, and possesses written confirmation, perhaps more emails like the ones used with Eric Trump last week, to confront Ivanka with if she’s not forthcoming. Still, it’s risky to ask questions you don’t know the answers to.

Monday is also the deadline for Special Counsel Jack Smith to respond to Trump’s dispositive motions in the District of Columbia. What’s a dispositive motion? Defendants have two broad veins of attack available to them. They can attack the prosecution’s facts as insufficient to establish key elements of the case. These decisions about which party’s version of the facts are correct is left up to the jury (unless it’s a bench trial where the judge becomes the “trier of facts”), so they don’t happen until trial. But in advance of trial, a defendant can attack the legal basis for the case, arguing prosecutors got the law wrong or engaged in misconduct, so that even if all the facts they allege are correct, as a matter of law, the case must be dismissed.

Trump has attacked the legal basis for his prosecution in D.C. with a series of motions arguing defenses like presidential immunity, First Amendment, and prosecutorial misconduct. These decision about legal issues are up to the judge. The motions seeking to dismiss a prosecution based on them are called “dispositive motions” because if a judge decides one of the motions in a defendant’s favor, the entire case, or at least some of the charges against a defendant, can be dismissed.

Trump filed four dispositive motions in the District of Columbia election interference criminal case last month. One of them was a motion to dismiss based on presidential immunity, that was filed ahead of schedule. Jack Smith has already responded to that one. But the remainder of the Special Counsel’s responses are due on Monday, so, we will take up the substance of all of the motions tomorrow. That will prepare us to evaluate the Special Counsel’s responses. Be ready for a little law school 101.

Trump also has a due date this week, on Thursday, for filing motions to compel the government to produce any information or items in its possession that Trump believes he’s entitled to. So, we may well see more motions later this week. The Judge has asked for one consolidated omnibus motion from Trump when he files.

On Tuesday, the Supreme Court will hear oral argument in the Rahimi case.

Rahimi is about whether, in light of the Supreme Court’s recent decisions that it’s unconstitutional to fetter gun rights in any way beyond what the Founding Fathers expressly authorized, a law that makes it a federal crime to possess a firearm if you’re under a domestic violence restraining order is unconstitutional. The Fifth Circuit’s opinion in that case starts like this: “The question presented…is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen…it is not.” They proceeded to decide, of course, that gun rights are more important than women’s lives.

Despite the pro-gun mood on the court, up until now, 18 U.S.C. § 922(g), which lists categories of people for whom it’s a crime to possess a firearm, has passed constitutional muster in the courts. The statute is used most frequently for people with a prior felony conviction but also extends to people who are unlawfully in the United States or are addicted to illegal drugs, as well as others including domestic violence offenders and those under restraining orders. Congress has said the domestic violence prohibition in the law are intended to help keep firearms out of the hands of people who have demonstrated that they pose an unacceptable risk to others.

The Fifth Circuit held that Rahimi’s conviction for possessing a firearm while under a domestic violence restraining order had to be overturned. They reasoned that his right to have a gun was protected by the Second Amendment, noting that “the Heller Court began its analysis with the ‘strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.’” “Rahimi,” the Fifth Circuit concluded, “while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.” The court concluded that “§922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have accepted.’…Therefore, the statute is unconstitutional.”

Let’s hope the Supreme Court has better sense than the increasingly dogmatic Fifth Circuit Court of Appeals. More background on the Rahimi case in an earlier Civil Discourse from when they briefs were filed here. You can listen to the oral argument Tuesday morning by following the link on the Supreme Court’s website.

On Wednesday, Trump’s brief is due in his appeal of the gag order Judge Chutkan imposed on him in the District of Columbia. The parties must also file a “joint appendix,” which is the record for the court to consider in deciding the case. Here’s the full briefing schedule, with oral argument set for November 20 at 9:30 a.m. Expect Trump to rehash the arguments we discussed last week when he moved to stay the gag order while the appeal was in progress.

Some folks expressed alarm when this scheduling order came out, because of its provision that the gag order “be administratively stayed pending further order of the court.” But the administrative stay is akin to the one Judge Chutkan imposed for several days when Trump first challenged the gag order. It’s a limited effort to protect all parties’ rights, which doesn’t hint in any way at how they view the merits of the gag order, while the court takes a look at the stay issue. To grant a stay, the court must determine whether the party challenging a court’s order is likely to win on appeal, and so is entitled to preserve the status quo until that process is complete. The court will likely rule on Trump’s request for an emergency stay during the appeal Monday, or early this week.

On Thursday, Steve Bannon’s challenge to his conviction for contempt of Congress, related to the House January 6 committee proceedings, gets oral argument. Bannon has remained free on bond pending the appeal. He was sentenced to four months in prison in October of last year.

The appeal is being handled by the U.S. Attorney’s office for the District of Columbia. Assistant United States Attorney Molly Gaston, who is currently working with Special Counsel Jack Smith, is one of the lawyers on the government’s brief. Each side is allotted ten minutes to argue their case.

Bannon challenges his conviction on four grounds:

• a claim the subpoena was invalid so the indictment should have been dismissed by the district court

• an argument the conviction is invalid because the court wouldn’t let Bannon subpoena members of Congress and their staff to testify at trial

• the court’s exclusion of Bannon’s good faith defense because it found the mens rea (state of mind) for the crime was proof the defendant acted “deliberately and intentionally”, and good faith is not a defense to a charge with that mens rea

• exclusion of Bannon’s defense of entrapment and public authority

If this was a “normal” criminal case—i.e., one that wasn’t being conducted in the spotlight of political tribalism, I’d assess Bannon’s arguments as having zero chance of succeeding. We’ll see if that holds up here.

The judges on the panel are:

• Nina Pillard, an Obama appointee who was a tenured professor at Georgetown Law School before going on the bench, and who has served stints in the Deputy Attorney General’s office as well as in the Solicitor General’s office

• Justin Walker, a Trump appointee who clerked for Brett Kavanaugh before he became a Supreme Court justice, and who spent two years as a federal district court judge in Kentucky before he was appointed to the appellate court

• Brad Garcia, a Biden appointee who clerked for Judge Tom Griffith, a Republican appointee to the D.C. Court of Appeals, and for Justice Elena Kagan, a Democratic appointee to the Supreme Court, before becoming a litigator in private practice. He served in DOJ’s Office of Legal Counsel before becoming a judge

Friday, there will be argument in front of Judge Chutkan, in the District of Columbia case, on motions brought by media interests, asking her to televise Trump’s trial.

DOJ opposes the motions. But you don’t get the feeling from their brief that they are opposed in principle. Their response is grounded in the view that the rules do not permit cameras in the courts. DOJ argues that those rules are both binding and constitutional:

“The relief the Applicants seek is clearly foreclosed under Rule 53 of the Federal Rules of Criminal Procedure and Local Criminal Rule 53.1.1. Courts have long upheld Rule 53’s constitutionality, and the Applicants provide no reasoned basis for a different result here. Whatever policy the Applicants believe supports their requested relief is not properly directed to the Court. And in any event, the Judicial Conference, which formulates policy for the federal courts, has long rejected the policy prescription the Applicants advocate, including as recently as September 2023. This Court should deny the Applications.”

You can read the full brief here.

Rule 53 goes so far as to prohibit even “photographs in the courtroom during judicial proceedings,” while also prohibiting “the broadcasting of judicial proceedings from the courtroom,” unless provided for by another rule. The government’s brief rehearses the sad history of federal courts’ resistance, unlike their brethren and sistren in state courts, to permitting cameras in the courtroom.

There are two requests to open up proceedings, one from a media consortium and one from NBCUniversal, both capably represented by stellar First Amendment lawyers, who make a series of compelling arguments. Among other things they argue that, as applied to the case of United States v. Trump, existing rules are unconstitutional. We’ll get some sense of whether Judge Chutkan will lean in on any of these arguments—prosecutors are correct that it would be unprecedented—but either way, this matter is headed to the appellate courts.

Federal courts should have changed the rules decades ago. State courts are far ahead of them in this regard, with far fewer resources and good results. There is not need to look further than the televised trial of the police officers who murdered George Floyd to see the important role access to the proceedings plays in shaping community understanding and acceptance of jury verdicts. Even if DOJ’s position is ultimately ruled correct and the Federal Rules of Criminal Procedure, as currently written, would prevent televising the trial, nothing prevents the Judicial Conference of the United States from fixing this error. Unfortunately, they don’t seem inclined to do so. Last month, the Conference announced its intent to appoint a committee to study the problem, but their work will not be complete in time to impact Trump’s March trial in D.C. The earliest that a proposal from the subcommittee could take effect would be December 2026.

That’s a lot for one week and it will all happen against the backdrop of important elections in Ohio, Kentucky, Mississippi, Virginia and other states on Tuesday. Politico has a good assessment of individual races here. Abortion is on the ballot in Ohio, where voters will determine whether access to it should be protected by a state constitutional right. In Virginia, where every seat in the General Assembly is on the ballot, Republican Governor Glenn Youngkin has pledged to sign a more stringent abortion ban in the commonwealth if the legislature sends one to his desk.

If you're in one of those states, please make sure you get out and vote!

We’re in this together,

Joyce