The Week Ahead

February 11, 2024

Get ready for another week at full volume. There’s going to be a lot to pay attention to. Again.

Something we’ll try to do is separate the bright, shiny things (the discovery dispute in the Mar-a-Lago case) from the issues of long-lasting impact (how the Supreme Court decides to handle the immunity appeal). That’s not to say they aren’t all important because, truly, they are. But we’ll try to get some sense, as the week progresses, of the issues that will have the greatest impact on the former president in the long run.

I’m still processing some of Trump’s most recent comments. On Saturday, he volunteered a story about telling our NATO allies that if they didn’t keep paying and Russia attacked, he would renege on the agreements that have kept the world stable since the end of World War II. “I said I would not protect our NATO allies. In fact, I would encourage Russia to do whatever the hell they want,” the former president told a crowd that was either totally ignorant of history or unthinking about the future, or perhaps both. It must have been music to Vladimir Putin’s ears.

Trump continues to use the dangerous rhetoric of fascism with such precision that you would be unsurprised if he said one day that he’d lifted it from one of his favorite authoritarians just like Melania plagiarized from Michelle Obama in her 2016 speech at the Republican National Convention.

The language is frightening and deeply concerning. We know by now that it is Trump telling us what he intends to do from day one. He will “demolish” people who get on his bad side. He will end a government populated by career employees who do their jobs on behalf of the American people, no matter who is in the White House. There will be no more debate in this country, no one will dispute his views—those people will be “thrown off.” So much for petitioning the government with your contrary views. And goodbye to more of the First Amendment as well. Trump commits he will end the free press and likely, based on earlier comments about using the Insurrection Act to quell anti-Trump protests, the right to free assembly as well.

We all know that the best way to prevent Trump’s return to power is to vote in such overwhelming numbers that the outcome of the election is clear. The courts protected the vote in 2020, and there is every reason to believe they will do it again in 2024, no matter what stunts Trump tries. So it’s up to us to do the legwork, whether that means volunteering to work the polls, registering voters, or writing postcards, as so many of us did in the last election.

If you’ve already started thinking about the role you want to play in 2024, leave a note in the comments; you may inspire other people! We’ll begin working through options and important steps each of us can take in the weeks ahead.

Mar-a-Lago

In case you missed it, over the weekend, Judge Cannon declined to protect the identities of potential witnesses in the case, as well as information about an ongoing federal criminal investigation into threats against one of them, from disclosure to Trump and his co-defendants. Saturday evening, Jack Smith divulged the information Judge Cannon required to them. We will not see that information, as it is still under seal.

When pleadings or documents are filed under seal in court, they may not be disclosed to anyone else. That includes the press. And a defendant isn’t entitled to take advantage of that information to, say, obstruct an investigation. All that to say, while it’s difficult to imagine many judges other than Aileen Cannon ordering the government to disclose information that puts witnesses at risk, it’s not a clean win for Trump. Any use he makes of the information would be highly problematic for him. So, the government has some small comfort in this situation.

Perhaps more importantly, the government is showing its efforts to comply with the Judge’s orders in good faith. That record of “clean hands” will prove helpful to the government if the case ends up before the 11th Circuit and would strengthen the case for removing Judge Cannon if her rulings on matters this week continue to be off base.

Other discovery issues are ongoing, and this week brings a two-day hearing the Judge will hold under Section 4 of the Classified Information Procedures Act (CIPA). The hearing will not be public. Judge Cannon is also, and most unusually, holding a session with Trump’s lawyers as well. In fact, they get four and a half hours to Jack Smith’s two, although he has met with her previously. Cannon directed the lawyers to reserve Tuesday for additional proceedings, as necessary.

Section 4 provides that "[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting the relevant facts that classified information would tend to prove." Section 4 authorizes the government to proceed in camera (outside of the public’s eye) and, ex parte (without the other side present).

DOJ’s guidance to its prosecutors in cases covered by CIPA is to ask the court to exclude as much classified information as possible from the government's discovery obligation. If the court orders the government to turn over classified material, prosecutors are directed to ask the court to permit them to use methods provided for in the rule, like submitting unclassified summaries of information or stipulating to the existence of facts that makes provision of the classified documents to a defendant unnecessary.

Here’s the kicker. The court's denial of a request from the government to protect the information can be appealed immediately.

While there was lots of speculation Jack Smith might try to have the Judge recused for ordering him to turn over information about witnesses, he is in a stronger position if he goes to the 11th Circuit with a bad CIPA ruling in hand, along with her track record of highly questionable decisions. That court could even order her removal absent a request from prosecutors, something I’ve only experienced in one case. One assumes she will be mindful of this and that even Judge Cannon will be protective of classified information—she has been so far, although she drags her feet before every ruling. But the dynamic with the right to a government’s appeal means we’ll be watching for her CIPA orders, or more correctly, we’ll be watching to see if the government takes an appeal after a sealed order shows up on her docket.

The Special Election to Fill George Santos’ Vacant Congressional Seat

Early voting is already under way, but Tuesday is the day. The outcome of the race has high stakes given the razor thin majority Republicans have in the House of Representatives. The Democratic nominee, Tom Suozzi, is a former Congressman who left Congress to run for governor, but lost a primary race against current New York Governor Kathy Hochul. The Republican is an Ethiopian born woman, Mazi Pilip, who became a citizen in 2009, and who served in the Israeli Defense Forces. She has drawn some fire in recent weeks for saying that, while she is personally against abortion, she thinks it’s a personal choice. It’s a quirky race to say the least.

A Siena College poll from February 3 to 6 had Suozzi leading, but the poll was within the margin of error.

Willis Misconduct Hearing

Thursday will bring a hearing before Fulton County Judge Scott McAfee to determine whether allegations by defendant Michael Roman, who is now joined by others, have any impact on the case. Roman revealed, and Willis has now confirmed, a relationship between the Fulton County District Attorney and Nathan Wade, a lawyer in private practice whom she brought on board to work on the Trump prosecution. Georgia law suggests that, in the absence of a financial conflict of interest, there is no grounds to recuse a prosecutor who is in relationship with another prosecutor. Willis may have some ethics questions to answer for the County regarding payments, but in the absence of new evidence or lines of argument we haven’t seen so far, there is not a clear reason for the Judge to force Willis to step aside.

Omnibus Hearing in the Manhattan DA’s Criminal Prosecution of Trump

Increasingly, it looks like the Manhattan DA’s case will be the first Trump criminal prosecution to make it to trial. The case is set for trial on March 25, and this Thursday, Judge Juan Merchan will hold an omnibus hearing to consider matters including scheduling, admissibility of evidence, and—what else—a motion from Trump to dismiss the case. Trump is charged with 34 separate lies in business documents that were part of a scheme to conceal a $130,000 payment used to keep Americans from learning, as they prepared to vote in 2016, that Trump had committed adultery with porn actress Stormy Daniels. Imagine if Joe Biden or Barack Obama had made payments to keep voters from learning this type of detail, the kind of thing that would have been enough to sink any campaign, as it did with John Edwards’ presidential hopes, among others. This is a serious case involving an effort by candidate Trump to interfere with the election. Look for the Manhattan DA to prosecute it with that level of seriousness.

So far, the prosecution team has been very low key compared to Willis in Atlanta. I hear the Judge has a similar low key style as well as a low level of tolerance for drama in his courtroom. As Trump goes on the attack, look for Judge Merchan to keep order.

Unfortunately, we won’t get audio or video from inside of the courtroom unless something changes, so we’ll be relying on reporter friends and transcripts.

The charges in this case, it’s worth repeating again, are felonies. All 34 of them. The prosecution team is helmed by folks with experience in both state and federal court, and they’ve been preparing their case under the radar for months while other Trump-related matters drew more attention. That is probably about to change with this hearing. With Trump due to ask the Supreme Court for a stay on Monday in the presidential immunity appeal (if he doesn’t, Judge Chutkan will be free to commence work on the federal January 6 case again), we may know a little bit about whether the Supreme Court will take the case or permit the Court of Appeals’ decision against Trump to stand, although it’s equally likely that decision could take a good bit longer. Either way, the focus will increasingly shift to the Manhattan case in the weeks ahead.

We’re in this together,

Joyce