Who's on Trial, and When?

Donald Trump leaving New York. Photo from Shealah Craighead, https://www.flickr.com/photos/whitehouse45/48799535398; Public Domain

Surprise Indictment

Today, in the Central District of California, David Weiss, the DOJ Special Counsel in the Hunter Biden case, indicted Alexander Smirnov for making statements he knew were false to federal agents and for falsifying records in a federal case, both felonies.

The false statements include:

• A claim that in 2015 or 2016, while Joe Biden was Vice President, Smirnov met with a Burisma Official who told him Burisma hired someone identified as “Businessperson 1,” who appears to be Hunter Biden, to “protect us, through his dad, from all kinds of problems.”

• A claim that Smirnov subsequently met with Burisma officials in Vienna after “Public Official 1,” who appears to be Joe Biden, called for the resignation of a corrupt Ukrainian official (something it has been widely reported he did because it was official administration policy) and that the Burisma officials told him “he had paid Businessperson 1 $5 million and Public Official 1 $5 million” so that “[Businessperson 1] will take care of all those issues through his dad.”

Burisma, of course, is the Ukraine-based oil and natural gas company that hired Hunter Biden as a board member in 2014 while his father was serving as the Vice President.

Smirnov was a confidential FBI source when he peddled his lies to federal agents. He faces up to 25 years in prison. So much for House Republicans’ efforts to investigate and impeach Joe Biden on this basis. You may enjoy reviewing our earlier discussion of the absence of any evidence of high crimes or misdemeanors by the President. It’s a sad day for Representative James Comer (R-KY), who has been trying to push claims based on these allegations. The President’s brother, James Biden, is scheduled to testify on February 21 before House Republicans conducting the impeachment inquiry. Perhaps they’ll just call that off now?

Fani Willis in Georgia: I’m Not on Trial

The hearing today about Fani Willis’ alleged conflict of interest that merits her disqualification from the case in the eyes of defendant Michael Roman’s lawyer Ashleigh Merchant was more spectacle than substance. In January, I wrote with co-authors Norm Eisen and Richard Painter that “a prosecutor is disqualified from a case due to a ‘conflict of interest’ only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction.” Georgia law requires an actual conflict of interest, not just an appearance of impropriety, to merit disqualification on the basis Merchant offered—a relationship between Willis and co-counsel Nathan Wade.

Merchant claimed it was an "improper, clandestine relationship” and that Willis was profiting from it. She bears the burden of proving the conflict of interest she alleges, and today, Willis and Wade explained under oath that their relationship began after she hired him and ended sometime last year, and that he wasn’t, in essence, kicking back to her in the form of expensive vacations, which seemed to be the allegation.

The hearing continues tomorrow, with Willis still on the witness stand. Perhaps there will be more evidence. But as it stood today, it’s hard to see any basis for disqualifying Willis unless the Judge wants to bend over backwards out of an abundance of caution.

The whole situation is unseemly, and it’s fair to question why Willis didn’t file a response with the court when this issue first surfaced, offering the explanation that she made today in court. That could have short-circuited the entire circus. Did Willis use bad judgment when she entered the relationship? Probably. But that’s not grounds for disqualification. Willis responded to each of the allegations, and many of them, including her testimony that she was in the habit of using cash because it was what her Daddy taught her, will ring true to people who understand the culture in the Deep South. The Judge is doing the right thing in the sense of getting everything out on the record here and giving the defense every chance to develop their theory. The record will withstand appeal, if there is one following a conviction, which is likely what is motivating this entire proceeding. In fact, the Judge permitted the defense to delve far too deep into many irrelevant areas and get into personal and salacious details, including Wade’s battle with cancer.

Willis testified unexpectedly, waiving her earlier efforts to quash the subpoena. She was emotional. This was clearly personal for her.

Prosecutors are supposed to have thick skin and to take every lick in professional good humor. That would have been the best approach for Willis here, but she is also a human being, and it’s easy to understand why she reacted the way she did, particularly since some of the more salacious arguments weren’t backed up with much in the way of evidence. That was especially true of ones about when the relationship began. Although a witness who claimed to be a close friend of Willis’ testified it began before Willis hired Wade, the witness turned out to be someone who resigned from the DA’s office in lieu of being fired because of performance issues. That’s a witness with some real credibility problems unless they’re corroborated, and this witness wasn’t. Willis and Wade both explained how they met at a conference and exchanged contact info, but nothing romantic developed until they were working together. Willis pushed back forcefully against the suggestion Wade had ever so much as set foot in her South Fulton home in 2020 or 2021. The defendant wasn’t able to offer any of the other witnesses they’d suggested they had.

"You're confused, you think I'm on trial. These people are on trial for trying to steal an election in 2020,” Willis told Ms. Merchant. Unless she has more evidence to offer tomorrow, this smacks of persecution of the prosecutor.

Trump trial in NYC will start on March 25

As we expected, in the Manhattan DA’s case, Judge Juan Merchan denied Trump’s motions to dismiss the case against him and said he was prepared to start striking a jury on March 25. Even if the case takes the full six weeks the Judge is allotting, that means enough time for a verdict to be rendered in advance of the Republican National Convention and sufficient time for the federal case in the District of Columbia to go to trial before the election if the Supreme Court acts expeditiously.

Trump’s lead lawyer in this case is Todd Blanche, who left his big law firm for Trump. Predictably, he called for a continuance. “We have been faced with extremely compressed and expedited schedules in each and every one of those trials,” he said, talking about all of the cases against Trump. Blanche said there would be 42 primaries and caucuses between March 1 and the expected end date for the trial and told the Judge his schedule amounted to election interference.

Prosecutor Matthew Colangelo had a ready response to Blanche’s complaints about the trial date. He read from an email he received from Blanche last May where Blanche wrote that because of the relatively small number of primaries between March 25 and late April, “If we start the trial on March 25, although still disruptive to the campaign, it will minimize the disruption.”

Judge Merchan made sure Blanche understood who was in control of the courtroom, admonishing him at one point to stop interrupting him—something no lawyer, let alone one of Blanche’s caliber, should need to be told. This should serve as a warning to Donald Trump about courtroom behavior because it’s clear that this is a Judge who won’t put up with any shenanigans. And, unlike the civil cases where there was talk about how to deal with Trump’s misbehavior, in the criminal cases there doesn’t have to be any debate. Trump, like any other defendant who doesn’t go into custody pending trial, is on a bond, and he has to obey its conditions. If he violates them, his pre-trial release can be revoked and he could be taken into custody immediately. If Trump is smart, he won’t cross this Judge.

“We are pleased that the court denied the defense’s motion to dismiss,” Manhattan DA Alvin Bragg wrote in a statement. “We look forward to presenting our case in court on March 25, 2024.”

All eyes on the SCOTUS Conference Tomorrow

The Justices will all be together for conference tomorrow, and possibly, a chance to discuss what to do with Trump’s presidential immunity appeal.

Wednesday night, Jack Smith filed his response to Trump’s request that the Supreme Court stay proceedings in the federal case in Washington, D.C., while the appeal of his presidential immunity argument proceeds. Today, Trump filed his reply. The stay issue is ready for a decision from the Court.

Jack Smith’s response was early, and he was firm. He told the Court it shouldn’t entertain any more of the former president’s delay tactics. Americans have rights too, not just Trump. Smith wrote that Trump’s claim of extraordinary immunity should not be extended, for the first time ever, to give a pass to a president who tried to interfere with the most sacred of American traditions, the transfer of power from one administration to the next following an election.

There are existing standards Trump has to convince the Court he meets before he’s entitled to a stay. Having lost before the Court of Appeals, Trump has the burden of establishing all three of the following elements:

• “A fair prospect of success” that the Court will overrule the Court of Appeals and decide the substantive issues in the case in Trump’s favor. He of course, cannot. We all know why. If Trump wins, any president, including Joe Biden, could do exactly what Trump did, interfere with the outcome of an election and hold onto power, with impunity. Or, to the hypotheticals from oral argument, use SEAL Team 6 to knock off a political rival. Trump should be careful of what he asks for here. But the argument is both lunacy and antithetical to American democracy. And unless the Court contorts itself to pretend it has some legitimacy, then it’s hard to see why there would be five votes here for a stay.

• Irrevocable harm without a stay. There’s some legal nuance here. If, theoretically, Trump were to win, there would be a harm if the case wasn’t stayed during an appeal. If he’s entitled to immunity, he can’t be prosecuted and shouldn’t have to proceed until the issue is decided. That’s the reason the stay was in place while the Court of Appeals did its work. So leaving aside the fact that there are some arguments to the contrary, let’s spot Trump this one since he can’t prevail on the other two. Jack Smith doesn’t focus on this part of the standards either.

• Balancing the equities on both sides, the party that seeks the stay has the better of the situation. Smith explains of Trump, “He has no entitlement to a further stay while seeking discretionary review from this Court. Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former President for alleged criminal efforts to overturn the results of the Presidential election, including through the use of official power.” Smith puts it this way, “the serious harm to the government — and to the public — of postponing the resolution of the criminal charges against applicant outweighs any equities he can assert to preclude further pre-trial proceedings while he seeks certiorari.”

Smith asks the Court to deny the stay and reject Trump’s request that they hear his appeal. But, perhaps nodding to the possibility that, given the importance of the issue and the fact that this issue of presidential immunity in a criminal case has never been decided before, Smith asks the Court to expedite and set a March argument date if they decide to hear the case.

Roger Parloff, the senior editor at Lawfare, calculated a timeline for the case if the Supreme Court agrees to hear it on the expedited schedule the Special Counsel requested. It’s speculative, but gives us some sense that this case could still get to trial ahead of the election.

The Special Counsel’s argument that Trump isn’t entitled to a stay because he can’t meet the legal standard is a strong one. But it’s hard to set aside the concern that there may be five votes on the Court to do it out of some misplaced sense of deference. The courts have often indulged Trump’s requests for delay to avoid the appearance of bias against him. One hopes we are past this point; courts have increasingly shown a lack of tolerance for Trump’s litigation games. The Court should refuse to give Trump more delay time here. As Smith puts it in his brief: “The thorough opinions of the courts below considering and unanimously rejecting his arguments — and applicant’s failure to point to any Founding Era suggestion of such absolute immunity, any former President making such a claim, or even any scholarly commentary positing such immunity — underscore how remote the possibility is that this Court will agree with his unprecedented legal position. And the public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office.”

Thank goodness tomorrow is Friday.

We’re in this together,

Joyce