The Week Ahead

December 17, 2023

Heading towards the Christmas holiday, this is a good moment to step back and assess where we are in each of the Trump criminal cases and what lies ahead. If you’re like me, sometimes you probably feel as if you need a color-coded wall like Carrie in “Homeland” to keep them all straight, and that’s just the criminal cases, because there are a plethora of civil ones too.

1. The federal election fraud case brought by Special Counsel Jack Smith in Washington, D.C.—Trump is the sole defendant

Trump’s dispositive motions, his arguments that the entire case should be dismissed because of presidential immunity and double jeopardy, are now on appeal. The question is whether they will proceed in the normal course to the Court of Appeals for the District of Columbia or whether the Supreme Court will hear the appeal immediately, at Smith’s request. This would save a lot of time as the losing party is certain to appeal to the Supreme Court in any event.

Trump owes the Supreme Court a response to Smith’s request for a writ of certiorari before judgment on Wednesday. The Court isn’t considering the merits of Trump’s motions to dismiss yet; these arguments are about whether they should hear the appeal at all at this point. In other words, we’re down in the weeds of criminal procedure.

If the Supreme Court doesn’t decide to take the case by December 23, Trump’s opening brief in the appeal of these motions is due in the D.C. Court of Appeals. Trump lost in the district court when Judge Chutkan rejected his bid to have the case dismissed, so he files the first brief. And don’t be surprised if Trump asks the appellate court for an extension to file his brief, given the lack of clarity about which court will hear the appeal. It would be surprising if the court gave Trump extra time, since it was their decision to expedite the briefing schedule knowing that Jack Smith was asking the Supreme Court to take the appeal.

This case is a bit of a procedural quagmire at the moment. Once we know which court will hear the appeal, we’ll be better able to access the kind of time involved. All proceedings before the trial court are stayed while this appeal is in process. As a benchmark, in the Watergate era case asking Richard Nixon to turn over the tapes, it took the Supreme Court 60 days from the day they granted certiorari to the day they made a decision. There is no reason the Court couldn’t move at least that quickly here, especially with a trial set for March and an election around the corner. The Court decided Bush v. Gore, the Florida vote recount case in 2000, the day after the case was argued.

If the appellate courts don’t move quickly, the trial delays will begin to mount up. This case is currently set to go out to trial on March 4, 2024, and the Judge has indicated jury selection will begin in February. That suggests she expects it will take about a month to pick a jury. So any delays reset the clock with the need for that process to take place before the trial itself can begin.

I was asked the other night on MSNBC which of the four criminal cases against Trump is the most important. That’s a question I resist because I continue to think each of the four cases is important and a strong case, and what’s so remarkable is that one would be asked a question like that about a former president—which of the four criminal cases against him is the most important one! But in many ways, this case, if only one could be heard before the election, would be my pick because the allegations go to the heart of a former president and candidate for re-election’s efforts to undo democracy.

Given the gravity of the situation, the question of whether Justice Clarence Thomas will participate when the Supreme Court hears the appeal is all the more important. Thomas has not signaled whether he will participate. In addition to the well-known support his wife Ginni lent to pushing the Big Lie, Thomas’ former law clerk John Eastman is Trump’s co-defendant in Georgia and an unindicted co-conspirator in this case. Leaving aside the situation with his wife, which would be sufficient to cause any reasonably prudent jurist to sit the case out, Justice Thomas recently recused in another matter involving John Eastman. The relationship was too close for even Clarence Thomas to ignore.

Moreover, if the new ethics rules the Court has adopted are anything more than candy floss, Thomas should recuse from this matter. If he doesn’t, it suggests that adopting those rules was just a meaningless show meant to calm the public outrage over ProPublica’s conflict of interest reporting about the Supreme Court, and not a measure of any real substance. But no one can force Justice Thomas to recuse. The decision is up to him.

One final note, a case involving whether the obstruction charge Trump faces in counts two and three of this indictment can be applied to January 6 is also on appeal to the Supreme Court. Last week they agreed to hear an appeal involving Joseph Fischer, who participated in the riot at the Capitol and is charged with obstructing an official proceeding in violation of 18 USC 1512(c), the same charge Trump faces. Trump is also charged with violating subsection k, which prohibits a conspiracy to obstruct an official proceeding.

This appeal should not interfere with Trump’s trial schedule. The outcome in Fischer’s case will likely establish the rule for Trump—if Fischer wins, then any conviction of Trump on 1512 charges wouldn’t stick. But even if Fischer is successful this only impacts two of the four charges against Trump.

If you read the language of the statute, it is plain language and unambiguous, and the strict constructionists, traditionally the conservative wing of the Court, holds fast to longstanding precedent that says when this is the case, the language of the statute controls the outcome of the matter. When you read (c)(2), it clearly reaches an attempt to impede an official proceeding, like the January 6 certification of the Electoral College vote. That’s how the court of appeals and every district judge in the District of Columbia except one who considered the matter in the course of other January 6 cases ruled.

But it is not encouraging that the Supreme Court has decided to take the case. They could have simply let the lower court’s ruling in Fischer’s case stand if there weren’t justices who are inclined to reverse it. We’ll keep a close eye on this one.

2. Manhattan DA case connected to the Stormy Daniels bribe

On March 30, 2023, Manhattan District Attorney Alvin Bragg became the first to indict Trump. The charges are connected to hush money payments made to Stormy Daniels just ahead of the 2016 U.S. presidential election. The case is currently scheduled to go to trial on March 25, 2024, second in the line of Trump’s criminal cases.

This case is frequently discounted as being less serious than others. That seems like a mistake to me. The basis for the charge, that Trump falsified New York business records in order to conceal damaging information and unlawful activity from American voters, is deadly serious. Alvin Bragg is a capable prosecutor, and while he has shown a willingness to let one of the cases more central to January 6 proceed ahead of his, I would not mistake that for a lack of confidence in his case.

3. The Mar-a-Lago case

The real issue here has been the trial judges repeated refusal to put this case on track for a speedy trial. Despite the seriousness of Trump’s mishandling of classified documents, Judge Aileen Cannon has seemingly bent over backwards to put the schedule on hold.

This case is currently scheduled for trial on May 20, 2024, but Trump has a pending motion to delay the trial that the Judge isn’t scheduled to hear until March 1, 2024. She has also delayed rulings on key pre-trial issues that suggest the May trial date isn’t happening.

Trump’s cronies have suggested that this is a minor matter, which, of course, could not be further from the truth. The risks associated with Trump’s mishandling of classified information popped back into focus last week with a CNN report that "A binder containing highly classified information related to Russian election interference went missing at the end of Trump’s presidency, raising alarms among intelligence officials that some of the most guarded national security secrets could be exposed." The binder has never been found, and its contents are not part of the Mar-a-Lago indictment. No word on whether concern about the binder could have animated any of the investigation that ultimately led to the discovery of a stash of classified information at Mar-a-Lago that the former president tried desperately to conceal from investigators.

The reporting about this situation isn’t entirely new. Cassidy Hutchinson testified about it before the January 6 committee, saying that Mark Meadows kept the binder in his safe and she saw him leave the White House with it. Other reports suggest Meadows was part of a last minute effort to declassify the material at Trump’s insistence. The reporting suggests that the intelligence included sources and methods, was extremely sensitive, and leaks could be highly detrimental. This reporting is a good reminder that Trump is completely unfit to lead. Although not related to January 6, this case charges Trump with extremely serious crimes and any effort to delay or derail the trial does a real disservice to American voters.

4. Fulton County, Georgia

Mark Meadows finally got his day in federal court on the removal issue last Friday when the 11th Circuit considered his argument. It did not appear to go well for him, and it seems likely that both he and Jeff Clark, who has a similar appeal pending, will find themselves stuck in state court along with all of Trump’s other co-defendants.

The real question here is whether the proposed August trial date could shift forward in light of potential delay in D.C. and almost certain delay in Florida. Fani Willis means business. Judge Scott McAfee is a former federal prosecutor. They both know how to move a case forward to trial. The schedule here is worth keeping an eye on.

But the same caveat exists here as in D.C., and perhaps with greater force. Jury selection could eat up a good chunk of time here. It took Willis’ office almost ten months to pick a jury in the RICO trial of the rapper Young Thug. That doesn’t bode well for a fast start with the Fulton County case.

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It’s a lot to keep our eyes on and to keep straight, but we’ll do our best to understand not only the individual cases, but how they influence each other. It’s clear that they do—for instance, the courts evaluating the gag orders in the D.C. case and the New York civil fraud trial each took notice of the gag order in the other case when evaluating the one in front of them. The more Trump tries to single out and minimize each prosecution, the more important it is for us to understand them as a whole, and to appreciate that the man who wants to return to the White House faces 91 criminal charges, at the same time that his New York real estate business is on the verge of being dissolved because of persistent fraud, and as he prepares to go to trial a second time in a matter where a civil jury found against him in a case alleging sexual assault. That’s the measure of the man.

We’re in this together,

Joyce