The Weekend Wrap - August 6, 2023

The indictment we've been waiting for has arrived

The big news last week, of course, was Donald Trump’s indictment on Tuesday in federal court in Washington, D.C. for his efforts to overturn the 2020 presidential election. In a forty-five page indictment, special counsel Jack Smith charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy to violate civil rights.

Trump arrives in D.C. for his arraignment (AP – Alex Brandon)

This is “The Big One,” the case that seeks to hold Trump accountable for his scheme to remain in power that culminated in the Capitol riot on January 6, 2021. If you missed my analysis of the charges and legal issues, you can find it here. I also had this piece in the New York Times discussing the smart strategic choices Smith made in the indictment.

On Thursday Trump appeared in federal court for his booking and arraignment and pleaded not guilty, all of which would be routine in any other criminal case. Outside the courthouse he made a brief statement, saying, “This is a very sad day for America.”

Never one to go gently into the good night, on Friday Trump posted this on Truth Social:

Many quite reasonably interpreted this as a threat against prosecutors, judges, and/or witnesses in the cases against him. Prosecutors in D.C. on Friday filed for a protective order preventing Trump and the defense from disclosing discovery materials. That’s fairly routine. But prosecutors also alerted the judge to Trump’s post to argue there is a particular need for a protective order in this case, given the risks that Trump might use material received in discovery to go after witnesses.

A Trump spokesperson responded to the filing by saying Trump’s post was protected political speech and was aimed at his political opponents including “RINO, China-loving, dishonest special interest groups and Super PACs.”

U.S. District Judge Tanya Chutkan ordered Trump to respond to the motion for a protective order by this Monday at 5. On Saturday his lawyers filed a motion asking for three additional days to prepare their response. Prosecutors promptly filed an objection, and on Saturday evening Judge Chutkan denied the request.

In an ordinary case requests like this for additional time are often agreed to as a courtesy. It looks like Smith’s team is putting down a marker early on that it wants to keep things moving and will not agree to any delaying tactics.

(It probably didn’t help Trump’s attorneys that at the same time they were protesting they needed more time to respond, they also announced his lead attorney would appear today on the five leading Sunday morning talk shows - a feat know in Washington as “a full Ginsburg.”)

We’ll see if Trump’s social media rants result in a scolding from the judge or any changes in his release conditions, although I think those suggesting this might lead the judge to lock Trump up pending trial are dreaming.

Judge Chutkan has also set a status conference date of August 28, when the lawyers will appear in person before her. At that time she will likely set a schedule for motions and hopefully a trial date.

Meanwhile, in Georgia

Indictment watch continues for what will likely be the fourth criminal case brought against the former president this year. Fulton County District Attorney Fani Willis gave an interview in which she said the legal work is done and her team is “ready to go.” Security precautions around the Atlanta courthouse continue to be beefed up, with road closures announced for next week. We still expect charges before the end of the month.

On Monday, a Georgia state judge denied Trump’s motion to derail the criminal investigation. Trump had sought a court order to preclude any further prosecution, to suppress the report and evidence from the Georgia special grand jury, and to have Willis disqualified. This was a pure Hail Mary by Trump’s attorneys and was not expected to succeed. The judge properly ruled there is no legal basis for Trump’s claims, particularly when there has been no indictment yet.

The judge was clearly annoyed by the motion and threw some appropriate shade at Trump and his lawyers. He wrote that while being the subject of a high-profile investigation “is likely an unwelcome and unpleasant experience,” no judge had ever held that was a basis for a court to halt an investigation. In a footnote, the judge then noted that for some, being under investigation “can, à la Rumpelstiltskin, be turned into golden political capital” – a shot at Trump’s fundraising and campaigning painting him as a victim of political prosecutors.

The judge also observed: “Perplexingly, prematurely, and with the standard pugnacity, Trump has filed not one but two mandamus actions against the District Attorney and this Court” – although, he said, neither one was in the proper form. He went on: “In the future, counsel is encouraged to follow the professional standard of inquiring with chamber’s staff about timing and deadlines before burdening other courts with unnecessary and unfounded legal filings.”

Ouch. Perhaps finally seeing the writing on the wall, later in the week Trump’s lawyers dropped one of the mandamus petitions, saying it was duplicative.

Trump Donors are Paying His Legal Fees

In a filing last week, Trump’s Save America PAC disclosed it had spent about $40 million on legal fees in the first half of 2023 for Trump and for dozens of others under investigation in the various cases against him.

Prosecutors are understandably concerned about possible conflicts of interest when Trump’s PAC is paying the legal bills for many who may be witnesses against him. For example, the Florida superseding indictment we discussed last week, which added a new defendant Carlos De Oliveira, alleges that when investigators began closing in last August Trump called De Oliveira to say he would pay for De Oliveira’s attorney. This was after the other co-defendant Walt Nauta had checked to make sure De Oliveira would remain “loyal.”

There is a pattern of Trump trying to keep people close by providing attorneys who are part of “team Trump.” You might recall the incident involving Cassidy Hutchinson, the former White House staffer who was a witness in the January 6 Congressional Committee hearings. She reported that her Trump-provided attorney had tried to shape her testimony to protect Trump and urged her to falsely claim she did not recall particular details. She ultimately fired that attorney, hired her own, and became a bombshell witness against Trump.

The Save America PAC is also part of an ongoing investigation into Trump’s fundraising practices after the 2020 presidential election. As I discussed in this post, the Trump campaign and the Republican National Committee raised more than 250 million dollars, mostly from small donors, claiming it would go to an “election defense fund” that did not actually exist and would be used to fight voter fraud that likewise did not exist. They then diverted most of the money to Save America, which was legally prohibited from spending money to contest the election. The PAC has been spending the money on campaign and other political expenses, with its biggest expenditure being legal fees.

Ironically, then, those individual donors who sent Trump their hard-earned money to help him fight nonexistent election fraud ended up paying the legal bills for Trump and others who engaged in actual election fraud by trying to overturn the results.

The January 6 Congressional Committee referred to this scheme as “The Big Rip-Off.” It makes sense that the special counsel did not include it as part of the most recent indictment because, although related, it is distinct from the efforts to overturn the election. I still think we could see charges related to fundraising fraud at some point.

Michigan Officials Face State Election Charges

In Michigan, the Republican former attorney general candidate and two other GOP officials are facing state criminal charges for trying to seize and access voting machines after the 2020 presidential election. Their efforts were related to the attempts by Trump and his co-conspirators to overturn the election results in Michigan, as outlined in Trump’s D.C. indictment. Two weeks earlier, Michigan prosecutors also charged sixteen other Republicans for submitting certificates falsely claiming Trump had won the election in that state. This is part of the “fake electors” scheme that is also part of Trump’s case.

The allegations overlap with some of those in Trump’s indictment, but the state and federal cases should be able to proceed on their own tracks and not interfere with each other. Like the state prosecutors in Georgia and New York, the Michigan prosecutors are pursuing their own obligations to enforce their state’s laws.

There have been reports that prosecutors in Arizona are also investigating the fake electors scheme in that state. Efforts to submit a slate of phony Trump electors could also form a part of any case brought by DA Willis in Georgia.

Capitol Rioters Seek SCOTUS Review of Obstruction Law

A second January 6 rioter has filed a petition for certiorari with the U.S. Supreme Court, challenging his conviction under 18 U.S.C. 1512 for obstruction of an official proceeding. More than 300 Capitol rioters have been charged with that offense for corruptly disrupting the January 6 joint Congressional proceeding to certify the election results. Two of the four counts in the most recent Trump indictment also charge him under this statute.

Capitol riot defendants have challenged their prosecution under 1512 on various grounds. They claim the law properly applies only to the destruction of documents or other physical evidence, that the joint session of Congress was not an “official proceeding” as defined in the statute, and that the requirement of corrupt intent is improperly defined or unconstitutionally vague. The D.C. Circuit Court of Appeals recently upheld the use of the law in a fractured 2-1 decision. If you’re interested in more detail you can find my post about that decision and the challenges to the law here.

One argument the petitioner made is that the Supreme Court should review the case because Trump was likely to be charged with the same offense – which has now happened. On the other hand, there is no split of opinion in the lower courts, which might typically spur the Supreme Court to take up the case.

Some people are worried the Supreme Court might seize this opportunity to throw a wrench into the gears of the Trump prosecution (not to mention hundreds of other January 6 prosecutions). I’m less concerned. As I wrote here and here, I think this is a solid charge and that the statute squarely applies. I’m not convinced that even this Supreme Court will go out of its way to take up the question. But we shall see.

Roger Parloff of Lawfare posted this good thread about these petitions the other day, although he’s more pessimistic about the statute’s prospects than I am.

The Week Ahead

We will continue to keep an eye on Georgia, where state charges could come any day.

Don’t expect too much action in Trump’s D.C. case this week, other than the ruling on the protective order. The parties will be busy beginning the discovery process and getting ready for the first status hearing before Judge Chutkan on August 28.

You will probably start to see lots of articles previewing and critiquing some of Trump’s potential defenses in this latest case – including one I’m working on that should come out in a couple of days on Sidebars.

This new Trump indictment is probably the most significant criminal prosecution in our history. It’s going to be a real test of the country’s ability to respond to a former president’s assault on our nation’s foundational values, and of the justice system’s ability to navigate those uncharted waters.

We are just getting started down what will be a long and challenging road.