The Weekend Wrap: December 17, 2023

Jack Smith as the Grinch, and SCOTUS to review key obstruction law

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

D.C. Federal Case - January 6 Allegations

It was a wild week in the D.C. case. Portions of the case are now before all three levels of courts in the federal system: the district court, court of appeals, and U.S. Supreme Court.

I wrote about some of these developments in more detail in a post late Monday evening. If you missed it, you can find it here:

Rocket Docket Update

District Court: Judge Chutkan granted Trump’s motion to stay the proceedings pending his appeal of his motions to dismiss for presidential immunity and double jeopardy. Prosecutors argued that the judge could still rule on motions that were already pending and some other collateral matters, but Chutkan agreed with Trump that everything has to be paused. She noted that she will retain jurisdiction to enforce Trump’s release conditions and the gag order if necessary.

This ruling was not a surprise. The law is pretty clear that the trial court loses jurisdiction during such an appeal and the defendant is entitled to be free from the burdens of litigation, including responding to discovery and other pretrial matters. But it does highlight how now the clock starts ticking with regard to that looming March 4 trial date. The longer things are tied up in appeals, the more difficult it will be for that date to hold.

Court of Appeals: On Monday Jack Smith moved the D.C. Circuit for expedited consideration of Trump’s appeal on the immunity issues, arguing there is a compelling public interest in preserving the trial date and avoiding delays. As I noted in Monday night’s post, the Court gave Trump until Wednesday to respond. On Wednesday he opposed expedited consideration, arguing there is no good reason for it and that this is all part of the Biden administration’s effort to take out Biden’s main rival in the 2024 election. Trump’s lawyers said that the novel issues in the appeal call for full and careful consideration and should not be rushed. They also objected to Smith’s proposed schedule, which they claimed would make Trump’s brief due on December 26. They complained that it would require them to work over the holidays and compared Smith to the Grinch. This is from their brief:

This literary citation earned them a great deal of justified online ridicule.

Smith had until Thursday to file his reply but he filed it on Wednesday afternoon, just a few hours after Trump filed his opposition. (Smith kind of reminds you of that kid in high school who always turned in his homework early.)

And Wednesday evening the Court granted Smith’s motion for expedited review. Trump’s brief is due on December 23, Smith’s opposition on Dec. 30, and Trump’s reply on January 2. Oral argument is not yet scheduled, but I expect it will be in early January, unless the Supreme Court intervenes. (They could summarily affirm Judge Chutkan’s ruling without oral argument, but that’s probably unlikely.) I think we could also expect a decision some time in January.

This is a very good sign that the D.C. Circuit recognizes the urgency of getting the case to trial and is willing to do its part to expedite the proceedings. And they didn’t even make defense counsel work over Christmas.

NOT Jack Smith on Christmas Eve

Supreme Court: As I also discussed in Monday’s post, Smith has simultaneously asked the Supreme Court to take the extraordinary step of granting certiorari before judgment and taking Trump’s appeal directly without waiting for the D.C. Circuit. The Court granted Smith’s motion for expedited consideration of that petition, and Trump’s brief in opposition is due next Wednesday. If the Supreme Court grants the petition, then the D.C. Circuit will be out of the case. I’d expect oral arguments some time in January, and perhaps a decision by February.

Possible Trial Delay: These developments, coupled with the Supreme Court agreeing to review a key obstruction of justice statute involved in Trump’s prosecution (see below), make it increasingly unlikely that the March 4 trial date can hold. Even if the courts move very quickly, it’s going to be difficult for Judge Chutkan to resolve all remaining issues and still be ready for trial in March once the case comes back to her.

That raises some interesting tactical questions for Smith. The Florida trial date is currently set for May 20. Suppose the case comes back to Judge Chutkan in February, and she is trying to set a new trial date. If she wanted to schedule it in April or May, Trump’s attorneys are going to protest that he has another trial scheduled. If she “double books” him, it will look unreasonable.

No one believes the Florida trial will actually begin on May 20, given all of the classified information disputes that need to be resolved and Judge Cannon’s foot-dragging. If I were Smith, I’d think about bowing to that reality and seeking to delay the Florida trial date to clear the calendar for Judge Chutkan. That would put Trump in a box: he couldn’t really object to moving the Florida trial date after all of his own efforts to push it back, but if it does get moved that will clear the decks for a trial in DC in the spring.

Government’s Notice of Expert Testimony: As he said he would, Jack Smith is continuing to make filings and meet all existing deadlines while Trump’s appeal of his immunity claims is pending, even if the judge can’t currently act on them. On Monday Smith filed a notice of expert testimony the government intends to introduce at trial.