The Week Ahead

June 25, 2023

There is an awful lot going on this week. It’ll be hard to keep track of it all, but that’s what we’re going to try and do here.

The Supreme Court

The Supreme Court’s term comes to a close—or close to it—this week. We will get decisions in the remaining cases on Tuesday and probably on Thursday and Friday as well, although there’s a possibility that the Court could extend its timeline into early July, as it has done on occasion. Among the remaining ten cases are ones involving affirmative action (Students for Fair Admissions Inc. v. President & Fellows of Harvard College; Students for Fair Admissions v. University of North Carolina) and student loans (Biden v. Nebraska; Department of Education v. Brown).

There is also 303 Creative LLC v. Elenis, where the Court has the opportunity to further extend the rights of conservative Christians who object to engaging in commerce with LGBTQ people. Last time, it was about wedding cakes. This time, it’s about a graphic designer who wants to expand her business to design wedding sites. She wants to post a notice saying she won’t design for gay couples, which would violate Colorado law. The issue here is politely phrased as whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment, but the subtext is all about the clash between religious rights and basic civil rights.

Counterman v. Colorado, a case that has received less attention, is also on my radar screen. It’s a criminal case involving a defendant prosecuted under Colorado state law, but it could have larger implications. After sending threatening messages to another person on Facebook, the defendant was sentenced to four and a half years in prison for stalking. The issue is whether those messages are protected by the First Amendment’s free speech provisions, which would make the conviction invalid. The Court must decide if speech becomes a “true threat,” (which means it is not protected by the First Amendment) only if the speaker subjectively knew/intended the statement to be a threat, or whether it’s enough if a reasonable person receiving the statement would have perceived it as a threat of violence. Depending on what path the Court takes and how broad their ruling is, the holding could change the landscape on charging internet threats, and even beyond.

Also still pending is Moore v. Harper, the voting case we discussed in some detail here and here. It seemed as though the Supreme Court might have decided to sidestep making a decision, because the North Carolina Supreme Court reopened the matter after it flipped to a Republican majority in the midterm elections—the Supreme Court can take up a matter like this one only if there has been a final decision in the court below. But the solicitor general asked the Court to decide the substantive issues in the case, and it seems possible that could still happen. It’s often the close cases, with a 5-4 majority and dissents being written and votes counted down to the last minute, that form the bulk of the last week of June cases, or that extend the Court’s timeline for handing down all of its decisions into the first week of July.

The substance of the Supreme Court’s decisions are incredibly important to our daily lives. You need look no further than the Dobbs decision, which ended Roe v. Wade, or Shelby County v. Holder, which was decided ten years ago yesterday and gutted the protections of the Voting Rights Act, to understand how much the Court matters. To fully appreciate that, it’s important to understand some of the Court’s procedures—in the past year, we’ve looked at issues like the shadow docket, for instance. Monday night, our guest for the “Five Questions With” series on Civil Discourse will be an old friend who will help us understand some of the big-picture issues during this critical week.

University of Idaho murders

Judge John Judge has loosened the gag order that blocked almost everyone involved from discussing the proceedings in the quadruple-murder case against Bryan Kohberger. A coalition of 30 news organizations had protested that it violated First Amendment free press rights. The updated order will permit prosecutors and defense attorneys to speak to the media. But their comments are still constrained by strict rules designed to make sure Kohberger’s right to a fair trial isn’t prejudiced. The victims’ families can speak with the press, but their attorneys are still prohibited from doing so. The court declined to rule on a related motion to permit cameras in the courtroom, writing that while he would continue to permit cameras in the courtroom for now, he would revisit the issue down the road to ensure he struck the correct balance between keeping the proceedings open to the public and preserving the defendants’s right to a fair trial.

Kohberger was originally scheduled to be in court for a preliminary hearing on Tuesday, but he was indicted by an Idaho grand jury in mid-May, making that hearing unnecessary. In the absence of a grand jury indictment, prosecutors must present evidence at a preliminary hearing to satisfy the judge that there is enough evidence to justify moving forward with felony charges. The indictment means the preliminary hearing is off the calendar for Tuesday, but Kohberger’s lawyers intend to challenge the indictment, and a hearing in connection with that is still on the calendar for Tuesday. so they may still be in court this week.

Kohberger is represented by a public defender. The case is currently set for trial on October 2, 2023.

Trump tries to remove his criminal case brought by the Manhattan DA to federal court

On Tuesday, there will be a hearing on criminal defendant Donald Trump’s motion to remove the case brought against him by the Manhattan district attorney from state to federal court.

How, you might be asking at this point, does a defendant have the right to take a case away from the prosecutor who charged him? We’ve discussed that previously, in the context of a potential Trump indictment in Georgia. For a refresher, read here. But the nutshell version is that Trump has the short side of the argument here and removal is unlikely.

That’s because Trump is trying to use a federal law that makes it possible to transfer a case brought against a former or current federal official in state court into the federal system if the defendant is charged with an offense “for or relating to any act under color of such [federal] office.” If the conduct Trump is charged with in Manhattan didn’t take place “under color of” his official federal duties, then there is no rationale for transferring it. And since Trump is charged with paying hush money to a porn star and falsifying records in order to get elected, it’s hard to see how he can shoehorn the facts into the law here.

Trump’s lawyers have argued that Trump didn’t actually make the payments to Michael Cohen until he was in office, but, as George Conway put it at the time, even if Trump signed the checks to Cohen on the Resolute desk in the Oval Office, that doesn’t make the payoffs part of his official duties. It defies common sense to believe that these kinds of election shenanigans were done on behalf of the American people. But the final decision is up to a federal judge in Manhattan. We’ll have to see in court Tuesday how he reacts to the Manhattan DA’s argument that the charged conduct had nothing to do with the presidency.

Walt Nauta

Donald Trump’s co-defendant in the Mar-a-Lago case, his valet Walt Nauta, was not arraigned at the same time as Trump because he did not yet have a Florida lawyer representing him. He’s now scheduled to be arraigned on Tuesday.

Once he’s arraigned, the government will provide his lawyers with the evidence they plan to use against him. Will that impact him? Nauta, in PBS’s words, is “a Navy veteran who fetched Trump’s Diet Cokes as his valet at the White House before joining him as a personal aide at Mar-a-Lago.”

Nauta’s lawyers are paid for by a Trump PAC—one of the most gripping part of White House aide Cassidy Hutchinson’s testimony before the January 6 committee involved how trapped she felt because the Trump-adjacent lawyers representing her were encouraging her to avoid testifying in a way that would implicate the former president and she couldn’t afford to get counsel on her own. Nauta’s lawyers have an obligation to represent him and see to his best interests no matter who is paying the bills. We’ll watch what happens here, but it’s hard to see how Nauta’s best interests could lie anywhere other than cooperating with prosecutors to reduce his own exposure to time in prison. But they did not strike a deal for him before he was indicted.

While there has been the suggestion that a motion for prosecutorial misconduct—based upon an alleged reference to a Washington D.C. superior court judgeship for which one of Nauta’s lawyers had applied—is coming, it’s unlikely it would have any bearing on whether Nauta can be prosecuted. The evidence against him is crushing.

The indictment details how Nauta moved boxes in and out of a storage room at Mar-a-Lago in the weeks between the time DOJ sent Trump a subpoena for the return of all classified documents in his possession and the subsequent trip federal prosecutors took to Mar-a-Lago to reclaim items Trump had. The indictment says that Nauta, at Trump’s direction, moved boxes containing materials taken from the White House around Mar-a-Lago, and that roughly half of the boxes were never returned to storage. Those movements took place before Trump’s lawyer Evan Corcoran began his search of the boxes so any classified material remaining could be turned over to DOJ.

Nauta, who worked for Trump and was dependent on him for his job, would be a sympathetic cooperator for prosecutors to flip. Unfortunately for him, he appears to have gotten caught up in the ongoing obstruction and has remained at Trump’s side. But it’s not difficult to imagine that a good deal would be available to him still, if his lawyers will take him in to make it.

What to watch for with Trump this week

DOJ’s early release of discovery to Trump feels like a setup. I’ve never seen this this early, except in districts that require disco at arraignment. DOJ wants Trump to know how strong its hand is and—a big deal—who’s cooperating. Do they also want to give him enough rope to let him violate the protective order and hang himself?

John Eastman

Finally, John Eastman’s bar grievance proceedings in California are STILL going. Eastman was charged in a lengthy, 35-page pleading in October of 2021 with multiple violations of the code of ethics for lawyers in that state. The state bar alleges Eastman violated his ethical obligations as an attorney by planning, promoting, and assisting Trump with an unlawful strategy designed to overturn the legitimate results of the 2020 presidential election. The strategy was to prevent electoral votes from some of the states that went for Biden from being counted.

Ultimately, Eastman’s license to practice law may be at risk. And it should be.

It was Eastman’s preposterous theory, one even he conceded in conversations with White House lawyers was a sure loser if it went to the Supreme Court, that resulted in a mob building a scaffolding and chanting “hang Mike Pence” on January 6. It was his theory that focused Trump on January 6 in the first place—following past elections, the electoral college certification had always been, as the law intends, perfunctory.

The California State Bar charged Eastman with 11 counts of misconduct, focusing on claims about election fraud, which were, of course, fake. Eastman is also charged in connection with pushing Pence to accept his concocted argument about the vice president’s ability to reverse or delay the certification of the election. In its complaint, the bar alleged that “No reasonable attorney with expertise in constitutional or election law would conclude that Pence was legally authorized to take the actions that respondent proposed,” and Eastman knew full well that what he was advising Pence to do violated the law and the Constitution.

Will there finally be a measure of justice for someone who operated inside the White House? The proceedings began last Tuesday. The Court is not expected to be in session Monday but will pick up again on Tuesday. The proceedings are being livestreamed here.

That’s a lot for one week, and we still have the Friday-night pleadings filed by special counsel Jack Smith in the Mar-a-Lago prosecution to work our way through. DOJ asked the judge to set a firm trial date in December, reflecting the reality of conducting discovery involving classified materials and the legitimate delay involved in that process. But it’s also clear that the special counsel was prepared, as we had speculated he might be, and has already turned over non-classified discovery. Smith asked the court to set up a pre-trial conference to get the process underway with classified materials—these will have to be stored in a secure facility called a SCIF, and the defense will only be able to view them inside of that facility. Any notes they take must remain there, and any motions and briefs they write in regard to them must be written inside of that space. You can see how complicated this gets from here on out.

We’re in this together,

Joyce