The Week Ahead

September 3, 2023

This week looks to be lighter on democracy issues, at least in comparison to the total hash of the past few weeks. Perhaps that’s a reflection of the need for a Labor Day Weekend off before the silly season—what folks at DOJ when I was there used to call the election campaigns—gets into full swing. Here’s what to expect:

1. Donald Trump and his co-defendants, for the most part, will not be publicly arraigned this week. That’s because of a Georgia rule that permits defendants to waive arraignment in court and enter a plea of not guilty on a written form.

Arraignment is, very simply, a defendant’s first appearance in court and not much of a focus in most cases. A defendant has the right to have the charges against her read by the judge and enters a plea. The choices are “guilty,” “not guilty,” or “no contest,” but as a practical matter, defendants haven’t seen discovery and don’t know the strength of the government’s case at this point, so a plea of “not guilty” is the order of business for the day. Defendants who have worked out a plea deal with the government in advance are usually charged, at least in the federal system, via an “information” instead of an “indictment.”

Defendants who don’t have a lawyer but qualify for a public defender will have one appointed for them at arraignment. Sometimes, the court sets dates for future proceedings or establishes deadlines for motions and other filings. But arraignment is perfunctory for the most part.

We could see a ruling from Federal Judge Steve Jones at any time on Mark Meadows’ removal motion (he wants his case tried in federal, not state, court). Other defendants have hearings on similar motions scheduled for later this month.

And in state court, some defendants have now moved to sever their cases from other defendants. Some don’t want to be tried in October with the speedy trial request tranche (Sidney Powell, Kenneth Chesebro). Chesebro has filed a motion of his own, insisting he shouldn’t be tried with Sidney Powell because he doesn’t know her. Perhaps he should have avoided committing crimes with her if he didn’t want to run the risk of being tried alongside. There are reasons to sever cases, for instance, when some evidence is admissible against one defendant but not others—this happens with confessions. But, “I’m afraid being tried alongside my co-defendants makes my guilt apparent” isn’t one of them. We could begin to see rulings or hearings schedules on motions in state court his week, as well.

2. On Tuesday, the impeachment trial of Texas Attorney General Ken Paxton begins. Back in May of this year, the Texas House of Representatives voted 121-23 to impeach Paxton, who is also under indictment in state court, and in fact, won reelection while under indictment. No wonder Donald Trump, who weighed in to support Paxton after the Texas House passed articles of impeachment, is one of his fans.

   

You can find the articles of impeachment, which contain 20 counts detailing Paxton’s wrongdoing, here. Articles of impeachment are more or less the equivalent of an indictment—they are charges, brought by the Texas House. It’s up to the Texas Senate to hold a trial, hear the evidence, and vote on whether Paxton should be convicted on the charges.

The committee that investigated Paxton was led by a Republican, and it charged the state attorney general with offenses including bribery, dereliction of duty, disregard of official duty, and unfitness for office. Paxton allegedly protected a wealthy donor from an FBI investigation and tried to block whistleblower complaints from his staff. He also supposedly “benefited” from a close friend’s decision to employ a woman Paxton was having an extramarital affair with.

Paxton was impeached after he asked state budget writers to allocate public money to settle a case against him by former staffers who accused him of retaliation in an amount around $3.3 million. The articles of impeachment allege he engaged in many years of misconduct—making his reelection to office a real head scratcher.

It will take a two-thirds majority of present Senate members to convict Paxton. In June, the state Senate passed new rules, including one that explicitly prohibited Paxton’s wife, a state Senator, from voting. Angela Paxton had declined to voluntarily recuse herself. Paxton can be removed from office if convicted.

Paxton’s 8-year-old indictment on state charges related to securities fraud may finally be cleared for trial, after a June ruling clarified which county the trial should take place. Paxton, a third term attorney general, remains inexplicably popular in the state. Right-wing Republican activists are expected to launch a full on pressure campaign to discourage Texas senators from voting to convict on the impeachment.

3. Friday is the scheduled date for release of the full, unredacted version of the Fulton County, Georgia investigative grand jury report, although it’s not entirely clear it will take place. The document could show if grand jurors wanted to indict additional people, beyond the 19 charged by Fulton County District Attorney Fani Willis.

Willis previously opposed release of the report, saying it could violate people’s rights. But Judge William McBurney in Fulton County ruled that now that an indictment has been issued, it would not violate due process rights to release the report. He said he would do that at 10 a.m. on Friday, but he gave “concerned parties” until September 6 to object.

Portions of the report had been unsealed in February. However, the section that contained the grand jury’s recommendations was not among them. Grand jurors rejected Trump’s baseless allegation that Georgia’s election was marred by voter fraud. The grand jurors found “by a unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning the election.” Grand jurors heard from 75 witnesses, including now-defendant Rudy Giuliani, as well as South Carolina Senator and staunch Trump ally Lindsey Graham, who testified only after a court ordered him to. Willis launched her investigation after Trump’s “perfect” call to Georgia Secretary of State Brad Raffensperger went public. During the call, which is certain to figure prominently at any trials of the case, Trump said, “All I want to do is this: I just want to find 11,780 votes, which is one more than we have. Because we won the state.”

Whether it’s Paxton or Trump, it’s time for Republican voters to start setting higher standards for their candidates. We all suffer when crooks and conmen are permitted to hold office. And it is all the worse when they are men who are not committed to the Constitution. It bears remembering that as Texas’s attorney general, Paxton filed a lawsuit challenging the outcome of the 2020 presidential vote in other states—states where he had no jurisdiction and no interest in the outcome of the count. He challenged the elections in Georgia, Michigan, Pennsylvania and Wisconsin in the United States Supreme Court. The Supreme Court promptly dismissed the case, finding that Texas lacked standing to sue.

Paxton’s carelessness with the future of democracy echoed Trump’s, willing to rend the country asunder to hold onto power. It’s precisely the type of behavior George Washington cautioned the citizens of his day against. In his farewell address, he said:

“The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth;…it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it;…discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”

Trump told Tucker Carlson in an August interview, “January 6 was a very interesting day, because, you know, they don’t report it properly…people in that crowd said it was the most beautiful day they’d ever experienced…I have never seen such hatred of what they’ve done to our country.” Carlson, who had previously asked Trump if he thought civil war could break out, reiterated the question, asking Trump if open conflict could break out. “There’s a level of passion I’ve never seen, there’s a level of hatred. And that’s probably a bad combination.” It was more threat than it was assessment, coming from a man who has plenty of reason to know that irresponsible people have considered his words as a summons in the past.

It’s important to remember what’s at stake as we move forward. It is nothing less than the future of our still fragile union.

We’re in this together,

Joyce