Two Legal Issues

There are two legal issues of interest tonight. First, an important decision by the Justice Department in the E. Jean Carroll case—this is the second of her two defamation cases, and it’s set for trial in January. Second, Donald Trump’s lawyers have responded to the government’s request for a December trial date in the Mar-a-Lago prosecution. The work product, helmed by former Florida Solicitor General, now Trump lawyer, Chris Kise, is a level up from what we’ve seen in other recent cases, but it still falls woefully short of the mark. What Judge Aileen Cannon will do about it is an entirely different question.

E. Jean Carroll

Earlier today, DOJ wrote to Trump lawyer Alina Habba and Carroll’s lawyer Robbie Kaplan to advise them that DOJ was “declining to certify under the Westfall Act…that defendant Donald J. Trump was acting within the scope of his office and employment as President of the United States when he made the statements that form the basis of the defamation claims in plaintiff’s Amended Complaint in this action.” The significance of that decision is that it strips Trump of the absolute immunity federal employees have for being sued over torts (civil wrongs, like defamation) committed in the scope of their federal employment. That leaves Carroll free to proceed against Trump for derogatory comments he made about her while he was the president.

The Carroll case that was tried earlier this year resulted in a $5 million dollar verdict against Trump, who promptly repeated his remarks on national television. Some people don’t learn.

When Carroll first sued Trump, Bill Barr decided he was entitled to Westfall immunity and legal representation by DOJ to see the case against him dismissed. A series of legal maneuvers and appeals followed. And then, surprisingly, Merrick Garland left Barr’s decision in place when he became Attorney General. Ultimately, it was the second case Carroll filed, one involving Trump’s comments after leaving the presidency, and a new New York state law that permitted adult survivors of sexual abuse an additional year in which to file their civil lawsuits, that was ready to be tried first. But that left the first one, and the issue of whether Trump would receive immunity, still to be decided.

DOJ wrote in its letter that three factors led to its changed conclusion. First, the fact that the events Carroll sued Trump over happened long before he became President, decades ago, when she alleged—and as the first jury concluded—he sexually assaulted her in a Manhattan department store. It seemed impossible that his ugly comments about her could have anything to do with his role as president, given that timeline. That made Barr’s original decision and Garland’s approval of it highly questionable. Today DOJ rectified its earlier error, finding that in addition to timing, Trump made additional comments about Carroll after he left the presidency, suggesting that his original comments were personal, not presidential. They also noted that his comments went far beyond denying Carroll’s allegations and were highly derogatory. So, no dice; Trump has to face a jury like any other litigant accused of defamation would, without special immunity.

This was a good decision by DOJ. It’s the right one and it should have been made from the start. Carroll is now on track to make a claim for additional punitive damages if she wins at trial in January, since the first verdict against Trump wasn’t sufficient to make him stop defaming her. Look for Carroll’s lawyer, Robbie Kaplan, to ask the jury to award damages in an amount they believe will be sufficient to make him stop. That number could go pretty high.

Mar-a-Lago

Late yesterday evening, co-defendants Donald Trump and Walt Nauta filed a joint motion objecting to the government’s proposed scheduling order and making asking the judge to “postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated.” For one thing, that’s a nonstarter. The Judge has an August trial date on the calendar, and if she doesn’t engage in “initial consideration,” and reschedule that date, the defendants would have to be prepared for trial then. We’ve always known it was just a placeholder because it would be impossible for the defendants to be ready to go to trial that quickly, but it is on the books.

Leaving that rather picky complaint aside, the substance of the defendants’ motion is still wanting. Judges not only routinely set trial dates, as Judge Cannon did here, in order to give everyone a target to prepare for; they do it because they are required to by law. The Speedy Trial Act provides that, “In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.” Postponing a trial setting until all of the pre-trial motions have been “presented and adjudicated” is out of step and would encourage unnecessary delay. By the time motions were fully adjudicated, the Judge’s trial calendar would be full up, necessitating more delay. And one can only imagine the complaints from defense attorneys that they would need further continuances because they had other cases in court (Nauta’s lawyer used that one this week), prepaid family vacations, and other commitments. It would be years before the case was tried, the pinnacle of Trump’s use of delay tactics.

That’s not the way it works.

Again, the Speedy Trial Act is informative. It gives the government 70 days from the date of arraignment to bring the defendant to trial. Often, a defendant’s motion for additional time to prepare for trial will be accompanied by a voluntarily waiver of the Speedy Trial Act. Here, Trump Attorney Chris Kise refers to the Judge’s “broad discretion” when evaluating periods of time that should be excluded from the 70 days—for instance, the time while a motion is pending typically doesn’t count. But he doesn’t explicitly waive the Act’s 70-day requirement, and he’s asking for a trial date at some unspecified point in the future. That could technically leave the government vulnerable to a charge that it violated the Speedy Trial Act. Prosecutors will have to insist that the Judge formally rule that the December date, or whatever date she sets, meets the requirements of the Act and doesn’t put any verdict the government may obtain in jeopardy.

What happens if the judge complies with Trump’s wishes and refuses to set a trial date? She would be flirting with another appeal by the government and a trip to the 11th Circuit.

The defendants’ arguments are a lot of coulda, shoulda, woulda—speculation that discovery will take a long time, that it will be complicated, and that their motions on issues like the Presidential Records Act and the Special Counsel’s authority to prosecute Trump are such automatic winners that there won’t be any need for a trial. Surely every defendant would like to be able to tell the court their motions are winners so there’s no need for a trial date. It’s a specious argument. The Judge should set a date and tell Kise to go ahead and file his motions. The defense speculates about problems that could come up during the process and asks for an open-ended schedule on the basis of that mere conjecture, before any problems materialize. But if the problems they anticipate actually materialize, they can ask the judge for more time. They are always free ask for a continuance if actual problems emerge.

Trump and Nauta, like all other defendants, have due process rights that must be protected. They are entitled to sufficient time to prepare for trial. But the people—the people of the United States whom the Justice Department serves—have an interest in seeing cases tried and justice done without unnecessary delay. So there are equities to be balanced here. Trump is not entitled to unlimited delay, although his rights must be protected. The question is whether Judge Cannon, who leaned so heavily on the scales of justice in his favor last time, can truly be fair now.

That is a question, perhaps, for another day, but its time is coming. These rulings will be the first opportunity to watch how she handles herself. Will she, for instance, follow through on the court’s direction to defense lawyers to promptly submit their paperwork to obtain security clearances, which they have not all done yet? On June 15, Judge Cannon gave the lawyers a week to submit the clearance papers. It’s now July 11. Kise spills a lot of ink complaining about how complicated and difficult that process is, but having been through it a time or two, I can say with confidence that it doesn’t take three weeks for anyone acting with diligence. If the judge gives them a pass they’ll be emboldened to engage in more efforts to delay the case well past the 2024 election, at which point, a Trump victory or disputed result could render the prosecution meaningless. Will Cannon uphold her oath?

One detail about the Judge’s record during her brief tenure on the bench is not reassuring. Before the Trump case was assigned to her, her most high profile criminal case involved Paul Hoeffer, a man who made explicit threats of violence to three female elected officials. He left a message for House Speaker Nancy Pelosi, where he said, “Nancy get ready to get your f****** head cut off Jihadist style.” A message for Alexandria Ocasio-Cortez threatened to “rip your head off.” He left a message for Illinois prosecutor Kim Foxx, using racial slurs and telling her “bullets are going to rattle your brain.” He continued making threats even after a visit from the FBI, when he promised he would stop.

The prosecution asked for a sentence of 3 1/2 years in custody, given the extreme violence of Hoeffer’s threats and his continuation of them after the FBI visit, which gave him a second chance. His defense lawyer argued that he cooperated once he was arrested, pleading guilty and accepting responsibility for his actions. The defense also asked for leniency because he was being treated for cancer. Judge Cannon sided with the defense over the prosecution, issuing a sentence of 18 months. Read into it what you will. It’s not encouraging.

We’re in this together,

Joyce