The Week Ahead

January 21, 2024

Monday

The E. Jean Carroll trial should finish up early this week. Trump is expected to attend, according to “sources close to him.” There’s an ongoing debate among pundits on social media over whether he’ll actually testify. Of course, no one but Trump and his lawyers know the answer for certain. But the smart money says there’s no way that his lawyers would expose him to cross-examination at the hands of Carroll’s highly competent legal team. Only the amount of damages is in question, and that’s not a topic Trump’s testimony is particularly helpful with; he can only make it worse. Those damages probably go higher if Trump takes the stand and acts in his predictable fashion.

Trump could also be at risk of some form of contempt or perhaps even perjury if he insisted under oath that he doesn’t know E. Jean Carroll and didn’t rape her. So, the question comes down to whether the man who thinks of himself as the smartest guy in the room will be able to stay off of the witness stand. Because of the pre-trial limitations the Judge imposed, most of what Trump would want to say, and will want his lawyer Alina Habba to say in closing argument to the jury, is off limits. That means there are probably an interesting few days ahead in the courtroom.

Late last week, Habba filed a motion for a mistrial. Expect a curt “denied” from Judge Kaplan. You can read the motion here. Habba is outraged that E. Jean Carroll destroyed some of the threatening emails she received following Trump’s ugly comments about her, and claims that is grounds for mistrial. While the Federal Rules of Civil Procedure require parties to preserve evidence “in anticipation of litigation,” Carroll testified she deleted some of the worst emails in the moment as she received them. Not only was this long before she ever thought about suing or recognized it as an option, it’s such a very human thing to do. Apparently, in Habba’s world, Carroll is supposed to live with all of the hate as a reminder of the danger she was put in by Trump.

Carroll’s lawyers went on the offensive, asking the Judge to permit them to introduce some of Trump’s comments to the press while the trial was ongoing into evidence, arguing they are relevant on the issue of damages, “the repetition actually matters since it is directly relevant to the question of the proper measure of punitive damages to be decided by the jury.” Last week ended with testimony on Carroll’s damages from Northwestern Professor Ashlee Humphreys, who testified that work to repair her reputation with those who had been exposed to Trump’s lies could cost up to $12.1 million. We’ll see if Carroll’s lawyers offer testimony of additional compensatory damages based on his continued conduct, but Trump has handed them a powerful argument for extremely high punitive damages. He will certainly challenge the amount of the award on appeal and has really made it much easier for a court of appeals to affirm by making statements like this one, which Carroll’s lawyers want to put into evidence when proceedings pick back up on Monday.

Alina Habba pressed Carroll during cross-examination on whether she “enjoyed all of the attention.” Carroll responded, “This is not the kind of attention I enjoy,” as her lawyer rose to object. Speaking over both her lawyer and Habba, Carrol continued: “But once I spoke up—I wanted people to know that a woman can speak up and win a trial. I wanted people to know. It was a major victory, and I wanted people to know. I don’t want to be quiet now. I’m 80. It’s not right to try to make women be quiet. It’s been going on for too long.”

Amen.

Tuesday

Everyone will be watching the New Hampshire primary on Tuesday, but I’ll be paying attention to a case that hasn’t gotten a lot of attention: the Fifth Circuit Court of Appeals, based in New Orleans, will rehear en banc a lawsuit challenging Mississippi’s lifetime ban on voting for people convicted of certain felonies.

In many states, loss of the right to vote had been an unquestioned consequence of a felony conviction. Increasingly, communities have asked why someone who has paid their debt to society and served their sentence following conviction should be prohibited from participating in civil society forever. In the 2022 elections, an estimated 4.6 million people were disenfranchised due to a felony conviction, a number that was down about 24% from 2016 as states enacted policies designed to reenfranchise people following service of their sentence and payment of outstanding fines.

But not Mississippi. In August, a three-judge panel held that Section 241 of Mississippi’s Constitution violated the 8th Amendment’s prohibition against cruel and unusual punishment. Section 241 mandates permanent, lifetime disenfranchisement from voting for anyone convicted of crimes including “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy”—in other words, a whole host of crimes ranging from serious to common theft. The panel decision was 2-1, with judges appointed by Presidents Carter and Clinton in the majority. The dissent came from a Reagan appointee. The en banc proceeding will involve all of the court’s active judges. The Fifth Circuit has a heavy conservative lean.

The case is Hopkins v. Watson. You can listen to the oral argument live at this link.

That’s a good opportunity for me to remind those of you who missed Friday night’s newsletter to take a look. Last week, the House passed a bill that is now heading to President Biden’s desk that will give family members of victims of the horrific bombing of Pan Am Flight 103 over Lockerbie, Scotland, remote access to observe proceedings against a terrorist who has been extradited to the U.S. to face charges. Now that we know that can be done, it’s time to demand that our elected representatives step up and make sure that the entire country can observe the federal cases against Donald Trump.

Many of you have written to me that your elected representatives are already in the tank for Trump, and it won’t do any good. I hear that, but I’ve spent some time writing notes to send to all of mine this week. For one thing, we know that the offices do keep a tally of communications, and an actual deluge of communications on this point will get noticed. But beyond that, officials who believe Trump is being persecuted for political reasons should welcome proceedings just as much as those who want to see the former president held accountable. If they think he’s being railroaded, they should make sure the evidence is exposed for everyone to see. So consider taking that approach when you communicate with them—as with voting, where one of the worst forms of suppression involves convincing people their vote doesn’t count so they’ll stay home, the one way it’s certain your representatives won’t consider your views is if you don’t express them. Instead of sitting this one out, invite your friends out for coffee and write a group of letters to send out. The more, the merrier.

Also Tuesday, Fulton County prosecutor Fani Willis has been scheduled to give a deposition in a divorce case involving Nathan Wade, the prosecutor she brought in from private practice. Willis has moved to quash the deposition, and there’s been no ruling on the motion so far.

Messy and unnecessary. Although we don’t yet know all of the facts, reporting has surfaced that Wade purchased plane tickets, and the two traveled together. But it’s important to note, that even if the allegations made by Trump co-defendant Michael Roman’s lawyer are true, it’s very unlikely that they will impact the ongoing criminal prosecution in any way. Although Willis may have to deal with internal ethics issues, there is no conflict of interest here that should lead to her removal from the case as it would if there were a case where a judge was having a relationship with a defense lawyer. In other words, because they are on the same side of a case, no conflict of interest arises out of their relationship. If you want to parse the legal details, I’ve written more about this here with ethics experts Norm Eisen and Professor Richard Painter.

Roman’s lawyer, Ashleigh Merchant, has alleged, but not come forward with evidence to prove, that Willis has benefited financially from the relationship, with the D.A. going on “lavish” vacations paid for by Wade with money he made as a special prosecutor. But although Merchant has said she has witnesses who will testify to these facts, she admitted they were not willing to give her affidavits to attach to her motion. Divorce cases can be dicey, so we’ll see what there is actually evidence of over the next few weeks.

The problem, of course, is that Trump will use this to delegitimize the prosecution. He has already started.

This is what the soccer mom in me thinks of as an “own goal.” Prosecutors, especially those involved in litigation like this, must hold themselves to the highest standards of conduct. We’ll wait for all of the facts to come out. And they will, because the Judge has scheduled a hearing on Roman’s motion for February 15. That’s a smart move that will get all of the facts on the record and allow the Judge to determine what, if any, impact the allegations will have on the case. By creating a record, he protects any verdicts that are obtained in the case from appeal on this basis.

Thursday

On Thursday, former Trump aide Peter Navarro will be sentenced for obstruction of Congress. Navarro refused to provide testimony or documents to the January 6 committee. DOJ has asked Judge Amit Mehta to impose a sentence of six months of custody. Last week, Navarro tried to preempt sentencing, asking the Judge to order that he was entitled to a new trial because the jury took an eight-minute break outside of the courthouse during its deliberations near possible demonstrators. The Judge declined to order a new trial.

The government argued in its brief that Navarro “cloaked his bad-faith strategy of defiance and contempt behind baseless, unfounded invocations of executive privilege and immunity." They could have asked for anything up to a year at sentencing.

Navarro should be counting his blessings if he gets away with just a six-month sentence. Although he has not been charged in connection with efforts to interfere with the 2020 election, you may recall that he appeared on Ari Melber’s show on MSNBC in January of 2022 and described the “Green Bay Sweep” plan to overturn the 2020 election that Navarro and Steve Bannon put into play along with help from what Navarro said were 100 Republican members of Congress. Melber’s reaction: "Do you realize you are describing a coup?" made the playlist for the January 6 committee.

Finally, we’re still waiting on a ruling from the Court of Appeals for the District of Columbia on the appeal involving Trump’s presidential immunity claim. Perhaps the early speculation they would move quickly was unwarranted, or perhaps they wanted to get the Iowa Caucus and New Hampshire primary out of the way before ruling to minimize any concerns they were impacting the outcome of those elections. It could be that one judge is writing a dissent and taking some time. But Donald Trump is certainly concerned about the outcome of the appeal—all of his eggs are in the presidential immunity basket. Once he loses this appeal, he’s headed for a criminal trial.

We really don’t have to live with a “Bad Apple” as president.

We’re in this together,

Joyce