The Week Ahead

December 11, 2023

Several things that were supposed to happen this week have evolved over the weekend, so this will be more like the week that wasn’t, or things that happened over the weekend, than our usual week ahead discussion.

First off, Donald Trump, who was slated to be the last witness in the defense’s case in the civil fraud trial in New York, won’t show up after all. This doesn’t come as much of a surprise to anyone who has observed the former president’s braggadocio over time. He really is all hat, no cattle; talking tough until it’s time to put his hand down, when he usually folds. Mary Trump referred to it as the most expected reversal since the last time Donald reversed himself.

Donald Trump in court during the New York State Supreme Court trial. Photo: Seth Wenig / AP Pool

Why not testify? Possibly because the specter of a candidate for the presidency being forced to take the Fifth Amendment over and over on the witness stand during cross-examination is too much for even Trump to withstand. And there wasn’t much to be gained, which is why I’d suggested early Saturday on The Katie Phang Show on MSNBC that I didn’t think we’d see him testify. Judge Arthur Engoron has already found that Trump and his company committed fraud—his testimony wouldn’t change that. Most of what’s left is for the Judge to determine how much of its ill-gotten gains the company has to disgorge to the people of New York.

Trump’s attorney Alina Habba suggested another reason Trump might stay off the witness stand, telling reporters she had urged him not to testify again because of the gag order in that case, which forbids him from criticizing the Judge’s law clerk. She said Trump was undeterred because “he is so firmly against what is happening in this court … People that are afraid cower. President Trump doesn’t cower.” In other words, Habba understands her client isn’t capable of obeying a simple gag order.

In an all-caps post on Truth Social, Trump wrote, “I have already testified to everything & have nothing more to say other than this is a complete & total election interference (Biden campaign!) witch hunt” so “I will not be testifying on Monday.”

Attorney General Tish James put it this way: "Donald Trump already testified in our financial fraud case against him. Whether or not Trump testifies again tomorrow, we have already proven that he committed years of financial fraud and unjustly enriched himself and his family. No matter how much he tries to distract from reality, the facts don't lie." She has been steadfast in pursuing this case long before people believe she could pull it off.

Eric Trump, who was directly involved in certifying some of the allegedly false statements the court is considering in this trial, also backed out of a prior commitment to testify for the defense last week. Trump posted at that time, “Eric has already testified, PERFECTLY, so there is no reason to waste any more of this Crooked Court’s time on having him say the same thing, over and over again, as a witness for the defense.” This sort of nonsense passes muster under the gag order in New York—as we saw in last night’s newsletter, there is a certain sense that judges and prosecutors need to endure criticism from litigants, even Trump, although he has a bigger, louder megaphone than most. But he does nothing to endear himself to other judges when he continues in this vein. Trump knows he’s lost this case, and he’s playing only to the court of public opinion at this point.

Turning to Washington D.C.

In Trump’s criminal case before Judge Chutkan, two different motions will compete for our attention this week. The first is Trump’s motion asking the Judge for a stay—to quit doing anything more in the case while his appeal of her decision against him on motions to dismiss over immunity and double jeopardy are on appeal. The second is Trump’s motion asking for additional discovery from the government.

Stay

Last Thursday, Trump filed a motion saying he was entitled to an automatic stay of all proceedings in the D.C. case, because the immunity and double jeopardy decision by the Judge that he is appealing have to be resolved before anything else can happen before the trial court. But in his response, Jack Smith tells the court, not so fast.

The dispute is over a Supreme Court case called Griggs v. Provident Consumer Discount, which says that when one party in a case takes an appeal, it takes away the district court’s ability to proceed as to “aspects of the case involved in the appeal.” Appellate lawyers phrase it as, the trial court is divested of its jurisdiction to act in the case.

Smith argues that “any number of matters could arise in this case that are not involved in the appeal,” and Judge Chutkan should continue to act on them while the appeal is working its way through the courts in order to “ensure that trial proceeds promptly” if Judge Chutkan’s decision that the case should not be dismissed on immunity/double jeopardy grounds is affirmed (which it very likely will be). In order words, Smith is arguing the courts shouldn’t permit Trump to get away with unnecessary delay tactics. Smith points out that Trump’s motions to dismiss on statutory grounds and due to selective/vindictive prosecution are still pending, and it would make sense for the Judge to decide those while other matters are appealed. But in light of Griggs, Smith acknowledges that Trump should have no “burdens of litigation” while his dispositive motions are on appeal.

This, in contrast to what we saw last night on the gag order with Trump’s lawyers refusing to acknowledge the correct legal standard, is what good lawyers do. Griggs is the law, and it does divest the judge of some of her jurisdiction while the matter is on appeal. Smart of Smith to concede that but argue that portions of the case not directly impacted in the appeal can move ahead because of “the public’s strong interest in a prompt trial.”

But note, Smith may lose the argument that the district court retains jurisdiction over certain types of matters. Trump’s argument here is not frivolous. The argument is, if he wins the appeal, the entire indictment is due to be dismissed, so nothing else at all should happen in the case until it is decided. That’s not an unreasonable reading of the law here—this is one of those discretionary close calls that judges make in cases across the country every day, although the subject matter here is unusual. Trump’s reply brief is due on Tuesday.

Ultimately, the best resolution of these matters would be for the courts to act speedily, so that the stay issue is moot, which is what the panel that decided the gag order case suggested they would do. Once the appellate courts rule on the immunity and double jeopardy arguments, there will be no reason for further pre-trial delays.

Discovery

Also on the table this week is the matter of discovery in the D.C. case. Federal criminal discovery follows a formulaic pattern set out in Federal Rule of Criminal Procedure 16. If you’re interested in more, you can read DOJ’s internal guidance to its prosecutors in the Justice Manual here. The government is obligated to turn over items specified in the rule, like the defendant’s statements and documents or objects that are evidence, as well as exculpatory material (Brady, Giglio, and Giles) and witness statements before the grand jury (“Jencks Act material”).

But that’s not enough for Trump. He wants more. His argument seems to be that the government isn’t turning over information that would support his defense that the election was stolen from him. Jack Smith explains it like this:

“The defendant demands an unprecedented expansion of the Government’s discovery obligations that would provide special treatment for him and result in delay. He asks this Court to find that a wide array of entities both inside and outside the Executive Branch are part of the Government’s prosecution team … And he further demands that the Government search the files of those separate entities for broad categories of information that are not relevant to this case … The defendant’s view of discovery is untethered to any statute, rule, or case, and lacks both specificity and justification. The information he seeks is not in the Government’s possession, in many cases does not appear to exist, and in any event is not discoverable pursuant to Brady, Federal Rule of Criminal Procedure 16, or any other authority. The defendant’s motions should be denied.”

You can read his entire pleading here.

One of the issues that Smith flags for the court is Trump’s unwarranted definition of who is on the “prosecution team.” The government need only turn over material within the control of the prosecution team, which includes prosecutors, investigative agencies, and sometimes others they may have worked with—the law in the D.C. Circuit says that only includes entities that are “closely aligned with the prosecution.” The determination of who is a part of that team has to be resolved in each case by looking at the facts of how the investigation was conducted, but it’s limited to entities that “have cooperated with, and provided substantial information to, the Government’s investigation.” And typically, where prosecutors have had to obtained documents from another entity using subpoenas or some other type of compulsory process, the entity doesn’t fall within the scope of the prosecution team.

Smith characterizes Trump’s attempt to expand the scope of the prosecution team, stating that “the defendant invents his own standard, misapplies district caselaw, and contorts facts to his liking.” And that’s pretty much dead on. Trump is on an unwarranted fishing expedition here.

Even where entities are within the prosecution team, defendants are only entitled to information that is “material” to their defense. As Smith puts it, “where the defendant makes no showing that the requested information will be in service to a valid defense, the corresponding discovery request fails.” Requests that are merely speculative are not enough to merit an expanded search by the government for more evidence.

Trump’s lawyers say they’re entitled to evidence so long as it has “some abstract logical relationship to the issues in the case.” As Smith notes, they are “actually stating the opposite of what the law requires.” Trump’s argument here should be a loser.

Even more objectionably, Trump suggest that there is material that there is classified material the government is concealing that would support his defense, or at least, that would maybe support his defense. Smith clarifies that “as the defendant has elsewhere recognized, classified material is not discoverable unless both ‘relevant’ and ‘helpful’ to the defense.” And Trump just can’t get there.

So, what’s going on? There’s a concept called graymail. That’s what happens when a defendant demands that the government handover classified material in discovery, in hopes that rather than expose important national secrets, prosecutors will dismiss some or all of the charges against them. Jack Smith has called Trump’s request out for what it is, a fishing expedition. He says plainly that “the defendant tries a variety of speculative diversions to matters irrelevant to the indictment, seeking information that is not material within the meaning of Rule 16.” Smith is correct on this matter. For instance, Trump asks for information about foreign interference in the 2020 election. Smith responds, “the unanimous conclusion of the intelligence community, which includes 18 federal agencies … was that there was no evidence of foreign interference in voting registration, voting, or vote counting in the 2020 presidential election.”

Smith works through all of Trump’s allegations regarding election fraud—everything from allegations of infrastructure compromise to allegations there were government agents at the Capitol on January 6—in a meticulous fashion, demonstrating that there is no evidence to be had because there was no fraud. The Judge should deny Trump’s requests for additional discovery once the briefing process plays out. The bottom line is that his efforts to expand the universe of entities within the prosecution team is baseless and he fails to show that information he seeks would be material.

A couple of other proceedings going on this week—

On Monday, Rudy Giuliani will stand trial in a defamation case brought by Ruby Freeman and Shaye Moss, the Fulton County poll workers. Federal Judge Beryl Howell has already determined Giuliani is liable for defamation. It will be up to the jury to decide how much he must pay in damages. Howell has already entered an order that forbids Giuliani or his lawyers from discussing any of the information they refused to turn over in discovery in this case, including information that he’s bankrupt or that Trump didn’t pay him.

Judge Howell will tell jurors Giuliani intentionally hid financial documents and other records during discovery in defiance of court orders. She ruled that this was merited because he engaged in “continued and flagrant disregard” of the court’s discovery orders, which required him to produce financial information.

Hunter Biden

Hunter Biden is newly indicted on tax charges in California. But on Monday, attention will be on the gun charges against him in Delaware, where he will be filing motions to dismiss. His lawyer, Abbe Lowell said, "All these issues will now be addressed in various courts, the first to occur this Monday when the prosecutors knew our motions to dismiss their first set of questionable charges would be filed."

This is obviously a very different posture from where Biden was earlier this year when it looked like there was a plea deal that would spare him both felony convictions and time in prison. One outstanding question is why the government would have offered Biden a plea deal that didn’t include a felony if they were confident they could prove up the tax charges against Biden in California, which include three serious felonies. While Biden’s lawyer has a good record defending high profile clients (he got Senator Robert Menendez off in his earlier prosecution), prosecutors have an enormous amount of discretion over filing charges, and it remains to be seen whether he will find an objection the courts will sustain.

When those charges were announced, Lowell said: “Based on the facts and the law, if Hunter’s last name were anything other than Biden, the charges in Delaware, and now California, would not have been brought. First, U.S. Attorney Weiss bowed to Republican pressure to file unprecedented and unconstitutional gun charges to renege on a non-prosecution resolution.  Now, after five years of investigating with no new evidence -- and two years after Hunter paid his taxes in full -- the U.S. Attorney has piled on nine new charges when he had agreed just months ago to resolve this matter with a pair of misdemeanors.  I wrote U.S. Attorney Weiss days ago seeking a customary meeting to discuss this investigation.  The response was media leaks today that these charges were being filed.  All these issues will now be addressed in various courts, the first to occur this Monday when the prosecutors knew our motions to dismiss their first set of questionable charges would be filed.” Hunter Biden’s defense team have referred to numerous cases where criminal tax charges were not filed over unpaid taxes, including Roger Stone, who they say owed the IRS nearly $2 million for four years without paying it, but was only subjected to a civil action.

Last thing

On Friday, Mark Meadows’ last ditch effort to avoid going to trial in Fulton County alongside his former boss will take place, when the 11th Circuit hears his appeal, arguing his prosecution must be removed to federal court. After reviewing the briefs and other related rulings, this looks like a doomed effort by Meadows. But we’ll be able to listen to this oral argument while it takes place in Atlanta to see if any of the judges have interest in the position Meadows is putting forth. The link to the live stream should pop up here by Friday.

Another intense week ahead. Thank you for reading Civil Discourse. Please feel free to share the newsletter with anyone you think would benefit from it as we head into this next precarious year for democracy. Like always, I appreciate those of you who are able to support my work through your paid subscriptions, which help me devote more time and resources to it. (And also, the occasional chicken treats—expect pictures of the girls devouring the gross new bag of dried mealworms I just got for them later this week.)

We’re in this together,

Joyce