The Week Ahead

August 20, 2023

It’s late August. It’s that time of year when everyone who can is catching the last rays of summer. Even the Justice Department goes quiet, as prosecutors, agents and staff spend time with their families before the start of school.

But not this year. There is an enormous amount going on in the week ahead. In fact, it’s too much to address all of the legal issues in the depth they deserve in tonight’s newsletter, so we’ll pick up with more legal detail as the week develops. Ready?

• All 19 defendants in Fulton County District Attorney Fani Willis’s prosecution are expected to be arraigned by August 25. That includes the former president, who is expected to turn himself in next Thursday or Friday, according to a senior law enforcement official. “All elections in our nation are administered by the states,” Willis told reporters. “The state’s role in this process is essential to the functioning of our democracy.”

  

• On Tuesday, the Special Counsel’s office has a reply due on its request to hold a Garcia hearing. Previously, Jack Smith’s team asked for the hearing, which is held when the defense lawyer has a conflict of interest to make sure that his client understands the implications of having a lawyer who has responsibilities to two (or more) different clients. Smith is concerned because Nauta’s lawyer represents at least one witness who they say could testify against Nauta. It seems legitimate to ask how Nauta’s lawyer could effectively cross-examine his other client when he takes the witness stand in that case without harming his reputation; one client’s interests would have to suffer. In response, Nauta’s lawyer, Stanley Woodward, wrote that “defense counsel does not now – and would not ever – oppose an inquiry of Mr. Nauta by the Court to assure the Court that Mr. Nauta has been advised of all his rights, including the right to conflict-free counsel, so long as such inquiry is conducted ex parte [with only the defense side present] and under seal [non-public].” Nauta’s lawyer argues there is no actual conflict and suggests his representation of a witness is not current. He also suggests that the Judge could exclude the evidence to avoid the conflict—a rather remarkable position. Jack Smith’s reply brief on Tuesday should be quite interesting.

• The Special Counsel also filed a similar motion for a Garcia hearing last week in the case of Trump and Nauta’s co-defendant, Carlos De Oliveira, citing his representation of three witnesses the government may call to testify at De Oliveira’s trial. The government writes that De Oliveira’s lawyers told them it’s premature to hold a Garcia hearing nine months before trial, but the government is on solid footing here, wanting to put potential conflicts on the records so defendants, if they are convicted, cannot argue ineffective assistance of counsel on appeals as a grounds for reversing their convictions and ordering a new trial. Judge Aileen Cannon will have a chance to get the law right (or badly wrong again) when she considers the two motions made by the government.

• The California State Bar’s attorney discipline trial of former Trump lawyer John Eastman is scheduled to resume next week. Eastman, one of the architects of the scheme to overturn the 2020 election, asked a judge to delay his ongoing bar association grievance hearing because of his indictment in the state of Georgia. Eastman’s hearing began in June, but had been continued to August 22 before Eastman was indicted in Georgia.

Eastman, in happier days, as he listens to Rudy Giuliani speak during the January 6 rally on the Ellipse

Eastman is a longtime figure in conservative legal circles. He clerked for Supreme Court Justice Clarence Thomas in the late 1990s. He also clerked on the Fourth Circuit for Judge Michael Luttig at the same time as Texas Senator Ted Cruz, who went on to clerk for Chief Justice Rehnquist. Eastman was a fixture with the Federalist Society. He began working with Trump in 2020, but only in a close way after it was clear the former president had lost the election. It was Eastman who was forced by Mike Pence’s legal counsel Greg Jacob to concede that his crazy theories, including the notion that Pence could reject the electors on January 6 and essentially declare Trump the winner, would be a 9-0 loser in the Supreme Court. Eastman also acknowledged that his proposal violated the Electoral Count Act and that Al Gore could not have done this in 2000 nor should Kamala Harris in 2024.

So it’s not difficult to understand why Eastman is looking for excuses to avoid consideration of whether his conduct warrants some form of sanction, up to and including disbarment by the California Bar, which is where he holds a license to practice law. The State Bar said the trial should go forward and a California state judge agreed, so proceedings will go forward this week. But there’s an interesting twist. Eastman had already begun to testify before his indictment in Georgia. Now, the Judge has said she will have to determine whether the California Bar can continue to question him, or whether that would violate his Fifth Amendment right against self-incrimination.

• Apparently there will not be a CIPA hearing in the Mar-a-Lago case on Friday, which the Judge had previously scheduled. CIPA, the Classified Information Procedures Act, provides for an early hearing to assess the use and handling of classified information. Instead, Judge Cannon issued an order providing for a sealed hearing. She wrote, “There will be no hearing on August 25, 2023, as previously reserved in the Court’s Scheduling Order.”

• On a related note, last Friday, DOJ filed a supplemental motion for a protective order in the case. De Oliveira, who the government notes, does not appear to have ever possessed a security clearance, is requesting “unfettered access” to all of the classified information that Trump kept at Mar-a-Lago, as is Nauta. Since Nauta and De Oliveira are charged with obstructing the investigation and the classified information contained in the documents is not likely to inform their defenses, the government has proposed a protective order that would let cleared counsel review certain documents but require further consideration before the defendants could be made privy to them. If Judge Cannon grants the defendants the unfettered access they seek, it would be unprecedented. Such an order would virtually mandate an appeal by DOJ to protect the information in this case and avoid creating a bad precedent for future ones. But in good news, while an appeal would involve delay, the 11th Circuit has shown it can move quickly when it wants to, and this would offer an opportunity to consider whether Judge Cannon can remain on the case. We’ll see what happens on this one.

• Finally, we will be looking for more from Alabama Senator Tommy “Coach” Tuberville this week. Given the opportunity to quit holding up essential military promotions that require Senate confirmation, he has tripled (or perhaps quadrupled, I’ve lost count) down on his opposition to providing the military with the leadership it needs. Tuberville, who never served in the military himself, said on weekend TV, “I don’t care if we promote anybody to be honest. We got 44 four-star generals right now. We only had seven during WWII, so I think we’re a little overloaded to begin with.”

Tuberville fails to realize that during World War II, we were the only country with an atomic weapon. Now of course, there are quite a number, including Russia, China, India and so on. There is also the Space Force, established by Donald Trump, which requires more senior leaders. And, after 9/11, the nation established U.S. Northern Command to focus on homeland defense, which requires its own set of leaders, as do U.S. Cyber Command and U.S. Space Command, which didn’t exist in the 1940s. Will someone in Republican leadership sit down and have a serious talk with Alabama’s senior senator this week or will he be permitted by his party to continue to impair military readiness?

Republicans have already relinquished their claim to being pro-law enforcement. Now, it’s the military. It’s going to be quite a week.

We’re in this together,

Joyce