The Week Ahead

January 28, 2024

This week, we continue to wait to see how and when the United States Court of Appeals for the District of Columbia will rule on Donald Trump’s presidential immunity argument. The clock continues to tick, making it all but impossible for Judge Chutkan’s March 5 trial date in the Special Counsel’s January 6 prosecution to hold up. We’ll talk about that opinion as soon as we see it.

There are other highly significant matters taking place this week.

In a Michigan prosecution, Jennifer Crumbley went on trial last week for involuntary manslaughter in connection with the November 2021 mass shooting where her then-15-year-old son Ethan killed four students at his high school. Her husband James is charged as well, but will be tried separately in March. Ethan Crumbley pled guilty to all of the charges against him in October 2022, including four counts of first-degree murder, terrorism, and assault with the intent to commit murder in the wounding of seven others, including a teacher. He was sentenced that December to life in prison without the possibility of parole.

In opening statements, the prosecutor said, “Jennifer Crumbley didn’t pull the trigger, but she is responsible for their deaths.” Her trial continues this week.

In the days leading up to the shooting, a teacher saw Ethan Crumbley looking up information about ammunition while in class. The parents were contacted by the school, but didn’t respond, although Jennifer texted her son, "lol, I'm not mad at you, you have to learn not to get caught," according to prosecutors. Just before the shooting, one of Ethan’s teachers found a note on his desk that included a drawing of a semi-automatic pistol and the words, 'The thoughts won't stop, help me,” along with a sketch of a bullet and the words, “Blood everywhere.” The Crumbleys were summoned to the school, where they agreed to get counseling for Ethan but declined to take him home. They also didn’t tell the school Ethan had access to a firearm they had purchased as a gift for him.

In order to convict, prosecutors will have to establish gross negligence. The recommended jury instructions for Michigan judges to use in a case like this suggest that they should instruct the jury that, “​Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act.” Michigan law requires juries to find three things, beyond a reasonable doubt, before they can conclude a defendant was grossly negligent:

• The defendant knew of the danger to another.

• The defendant could have avoided the injury by using ordinary care.

• The defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.

While some commentators have suggested this case may signal a trend towards prosecuting parents of school shooters, there are unique facts here that made the manslaughter charges appropriate, and that may not exist more braodly. The parents not only procured the gun for their child, but they knew he had mental health issues, were put on notice by the school of the situation, and declined to remove him from school that day while failing to disclose that he had access to a firearm. At every step where the parents could have prevented this senseless tragedy, they behaved with gross indifference for the lives of other people’s children.

When the case was charged, Karen McDonald, the prosecutor in Oakland County, Michigan said, “There were a lot of things that could have been so simple to prevent.” She called the facts of the case “so egregious” that they required prosecution.

Manslaughter is punishable by up to 15 years under Michigan law.

Wednesday will probably be the biggest day for legal news this week. We expect to see three developments in key cases:

1. In the 14th Amendment litigation in front of the Supreme Court, where Trump is trying to reverse Colorado’s decision to keep him off that state’s ballot, the state’s brief and any amicus in support of their position must be filed.

2. In the Mar-a-Lago case, Judge Aileen Cannon has an ex-parte meeting with Special Counsel Jack Smith. Ex-parte simply means that it will take place without the other party to the case, Trump, or his lawyers present. This is happening ahead of a scheduled hearing on February 15 and 16 about classified documents under CIPA section 4.

Section 4 provides that "[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting the relevant facts that classified information would tend to prove." The government gets to make that showing to the court ex parte—it would defeat the whole purpose of the rule if the government had to disclose the material to the defense before it could protect it from disclosure. The hearing is also sealed, which means we won’t get a transcript.

Prosecutors use this procedure to have courts exclude as much classified information as possible from the government's discovery obligation. And where a court rules that classified material is discoverable, it permits prosecutors to request the court’s approval to use unclassified summaries and/or stipulations to avoid disclosing information that would be damaging to national security.

Here’s the most important part. If a court denies the government’s request, the government can take an immediate interlocutory appeal. That means that while we won’t learn much if anything about what happens when the Special Counsel’s team sits down with Judge Cannon, we’ll find out if they object to anything that happened fairly quickly, in the form of a notice of appeal to the 11th Circuit. That may also explain why Judge Cannon hasn’t been in any hurry to rule on Section 4 issues.

One of the biggest objections to Judge Cannon’s handling of the case has been the exceptional amount of delay she has indulged Trump with in what should have been a fairly straightforward case. That delay has been particularly troubling when it comes to CIPA. Instead of proceeding promptly to get to the point where she could rule on the Section 4 motions, she has permitted the matter to drag on. DOJ filed its Section 4 motions on December 6, and Trump and his co-defendants responded that same day. DOJ filed its opposition to their positions on December 20. Instead of scheduling a prompt hearing, Judge Cannon set it for eight weeks after DOJ filed its opposition. She offered no reason for allowing that amount of time to elapse—there was nothing on the calendar in this case that would have permitted her from doing it immediately. Now, we have this oddly scheduled ex-parte meeting on the calendar for this week.

Back in June of 2023 when this case was indicted, I included the following in my assessment of the indictment and my concern that Judge Cannon had drawn the case:

“Most likely though, prosecutors will wait for Cannon to make an objectionable ruling that can be appealed pre-trial, and use that opportunity to request that the 11th Circuit order the Chief Justice in the Southern District of Florida to reassign the case on remand. Of course, this means delay, and delay here works in Trump’s favor. None of this is ideal, by any means. But this is the type of situation where the 11th Circuit protects its integrity and reputation by ordering recalcitrant judges to recuse. Prosecutors are likely to get their opportunity because Cannon, whose appointment of the special master and rulings in the earlier matter already demonstrated some inexperience and discomfort handling highly sensitive classified matters, will be called upon to make decisions and set appropriate procedures under a complicated statute, CIPA, the Classified Information Procedures Act, that governs the handling of classified material in a trial setting. Because those decisions can be appealed immediately, it seems likely that the government will need to take an appeal at some point and that will give it the opportunity to request recusal.”

When I wrote those words, I anticipated a CIPA ruling ahead of the holidays and an appeal, if necessary, at that point. But here we are at the end of January, with the hearing itself still weeks away.

Jack Smith announcing the indictment of Donald Trump on classified documents charges, “We have one set of laws in this country and they apply to everyone.”

3. Previously, Judge Arthur Engoron, in the New York civil fraud case, said he would file his written decision in that matter, which will include both the fate of the Trump Organization and Donald Trump’s ability to conduct real estate business in the state of New York, along with the amount of profit he must disgorge, on Wednesday.

And, in an interesting side note, on Friday, Barbara Jones wrote a letter to the Judge, in her capacity as the monitor for Trump Organization, while that lawsuit is pending. Jones was responding to the Judge’s request for a status update on her work over the past 14 months. She wrote that she had identified “certain deficiencies in the financial information” she had reviewed, “including disclosures that are either incomplete, present results inconsistently, and/or contain errors.” But she noted that the defendants had been cooperative even though some of the information they were required to submit to her under the monitorship had been “lacking in completeness and timeliness.” The letter also explains that her duties do not include day to day monitoring of corporate activity, so she is “not in a position to conclude whether fraudulent activity occurred.”

There is a lot of interesting information in the letter about the Trump Organization and the entities that exist within it—521 at the start of her monitorship, now reduced by 106 that have been dissolved. Jones described the functions of the remaining entities as follows:

She also noted that Trump stopped submitting certified statements of his financial conditions in connection with loans he personally guaranteed for the organization that required them, and has instead, been submitting statements detailing his existing assets and liabilities.

Jones noted that while her role was limited to assessing the accuracy of information the Trump organization provided to her, there were some “deficiencies” that could be “considered material inaccuracies in the presentation of financial information” from the perspective of the entities the information was being provided to. She identified three categories of problems: incomplete disclosures, inconsistent disclosures, and errors in disclosures. But she concluded by underscoring that the Organization had admitted deficiencies and worked with her to rectify them. This report may just be a matter of dotting the i’s and crossing the t’s at the end of the case, but it will be interesting to see if any of it plays out in the Judge’s final ruling. You can read the full letter here.

We are going to have few if any quiet legal weeks for the remainder of this year. But if there’s a silver lining to the Trump era, it’s that people are interested and engaged with understanding how our legal system works, why the rule of law matters, and how our Republic should function. Thanks for being here and being a part of that.

We’re in this together,

Joyce