The Week Ahead

July 15, 2024

This coming Friday, by my count, Judge Chutkan’s jurisdiction over the Special Counsel’s election interference case will resume when the judgment is returned to her from the Supreme Court. No one knows exactly how she will proceed after the Supreme Court gutted the case with its finding of broad presidential immunity and prohibition on the use of any evidence that involves “official acts.” Now we will finally begin to learn what Judge Chutkan’s plan for moving forward is, including whether she intends to hold an evidentiary hearing to separate official acts from private ones. She must determine what charges in the indictment may proceed despite the immunity grant and what evidence the government is still entitled to use.

Here is the guidance the Supreme Court offered in its opinion: “The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context … Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication. This necessarily factbound analysis is best performed initially by the District Court. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.”

The Court seemed to suggest that much of what Judge Chutkan must make decisions about are fact-based inquires, which many commentators suggested would be an opportunity for the Judge to hold an evidentiary hearing, a mini-trial of sorts that would expose to much of the evidence a jury would have heard if the case went to trial to the public before they vote. Donald Trump’s lawyers have already indicated they will oppose that approach. That means the Judge will have to spend some time making a decision about how to proceed, so we will be back to discussing delay, which has frequently worked in Trump’s favor in court.

This one has been a long time coming, and although there is virtually no likelihood of this case going to trial before early voting starts, there is a possibility of other movement. We will know more once the Judge issues her first orders after jurisdiction is restored to her.

In another matter related to January 6, Rudy Giuliani’s efforts to protect his assets from debtors with a bankruptcy were disallowed late last week by a federal judge. That means, among other things, that Georgia election workers Ruby Freeman and Shaye Moss are free to proceed to collect their $148,000,000 judgment against him. We may see that work commence this week.

The jury deciding the fate of Democratic Senator Robert Menendez of New Jersey will deliberate this week. That case, as well as the prosecution of the President’s son, is proceeding despite Republican claims that the Justice Department has been weaponized against Donald Trump. The Menendez case was indicted in September of 2023. Despite two superseding indictments that added on new charges, the trial was able to begin in May. That is just eight months after it was indicted, proving cases, even complicated ones involving public corruption, really can go to trial without exhaustive delay. Menendez, who defended himself vigorously and brushed off questions about why he didn’t testify as he was leaving court last week by saying the government hadn’t met its burden to prove the charges against him, nonetheless didn’t attack the rule of law, the judge, or the jury. He may get convicted, but he didn’t try to burn down the system to save himself, and the Supreme Court hasn’t stepped in to to give him some kind of official immunity.

Despite these interesting and important developments in three significant cases, the week ahead is likely to be consumed by politics. That will be especially true in the wake of Saturday’s shooting, which left Trump bloodied, but thankfully not seriously injured. Monday is the start of the Republican National Convention in Milwaukee.

Among the interesting issues on the table will be how Republicans will handle the issue of abortion. Trump, who had previously crowed about his role in reversing Roe v. Wade, seems to be running away from that position, although the sense is that he and his party are talking out of both sides of their mouths on this one. On the one hand, the proposed Republican Party platform is silent on the issue of a national ban. But Project 2025 takes a different stance, not only ending the availability of abortion drugs by mail but criminalizing their provision by mail, as well as mailing anything used for contraception. You can read this in the Justice Department Chapter on p. 562, which argues for full enforcement of criminal provisions.

How will Trump handle this push by party conservatives when he himself has recently said he will not support a national abortion ban? Perhaps he will find a way to sidestep the issue entirely, but this is one of the clear contradictions between the platform Republicans will be asked to vote on and the Heritage Foundation plan, which embodies a goal Republicans achieved after 50 years of trying. It’s hard to believe they’ll simply walk away from it now.

Even though there are important policy issues like this on the table, it’s hard to imagine that the convention won’t be overshadowed by the security concerns raised by the attack on Saturday.

Joe Biden is staying in Washington, D.C., tomorrow, canceling a planned trip to Austin, Texas. But he will still sit for an interview with NBC News’ Lester Holt tomorrow in an effort to solidify his hold on the nomination, albeit in the White House. This, after offering the nation the calming voice it needed, urging people to lower the temperature in our politics and remember that we are all Americans.

The week ahead will be full of questions about law and politics. Hopefully we will get some good answers as it progresses. But Justice Sotomayor’s words are still running through my head: “With fear for our democracy.”

Were in this together,

Joyce