The Weekend Wrap: June 16, 2024

Hunter Biden convicted

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

Trump Prosecutions

New York State Case - Hush Money/False Business Records

On Monday Trump was interviewed for 30 minutes over Zoom by a New York state probation officer. This is a routine part of the sentencing process, and the interviews are not made public. The probation officer questions the defendant about his personal history, family and living situation, finances, mental and physical health, addiction issues, and anything he might want to say about the crimes for which he was convicted. The officer also evaluates the defendant’s “behavior, attitude, and character,” which must have been interesting in this case. The officer uses the information to help prepare a pre-sentence report for the judge, who then uses that report to help him fashion an appropriate sentence.

One thing that’s remarkable about this is just how unremarkable it is. Trump is going through the same gritty criminal justice processes as any other convicted felon in New York state court. In this, he is neither privileged nor special — not above the law. It probably drives him crazy.

Florida Federal Case - Mar-a-Lago Documents

Judge Cannon denied another defense motion to dismiss. The motion had challenged several counts of the indictment on legal grounds such as failing to state an offense or being duplicative of other charges. Cannon rejected those claims, finding that dismissal was not appropriate even if the language of the indictment generated “arguable confusion” or was “technically deficient.”

In the alternative, the defense moved to strike many of the allegations in the indictment as unnecessary and unduly prejudicial. With one exception, Cannon rejected those claims as well, although she agreed with the defense that much of the language in the indictment is “legally unnecessary.” That’s true but irrelevant. Prosecutors followed the standard practice in big white collar cases of using a “speaking indictment” that tells the full story of the case, beyond bare bones allegations that meet the minimum requirements. There’s nothing wrong or unusual about that.

In other words, once again Cannon ultimately reached the right conclusions while at the same time taking unjustified swipes at the prosecutors.

The judge did strike one paragraph from the indictment. It refers to Trump improperly displaying a classified document at his Bedminster Country Club in New Jersey. The judge ruled this allegation was not properly included in the indictment because it did not directly related to any of the charged crimes:

This ruling will almost certainly have no practical effect. Prosecutors may still seek to introduce evidence of the incident as “other crimes” evidence at trial, even if it is no longer in the indictment.

Last week Trump’s attorneys also filed a motion to dismiss based on “spoliation of evidence in violation of due process.” When the FBI recovered the boxes of documents from Mar-a-Lago during the execution of the search warrant and later reviewed those boxes, it maintained box-to-box integrity, ensuring that the contents of each box remained the same. But agents apparently did not ensure that the exact order of the documents and other items within each box was recorded or preserved.

Trump’s attorneys argue that this violated his rights. They argue his defense at trial could depend on a claim that he did not know classified documents were mixed in with personal papers and effects within a particular box. The strength of that argument might depend on exactly where the classified material appeared, in relation to other items. But because the order of the materials in a box was not preserved, they argue, that potential defense has been impaired. And because these are Trump’s lawyers, of course, they claim this was done deliberately and in bad faith, as part of Biden’s efforts to interfere with the 2024 election through this political prosecution.

This seems like an effort to make a mountain out of a molehill. It certainly would have been better if the FBI had been more meticulous about documenting the arrangement of each box’s contents. But at most, I’d say this might entitle the defense to a jury instruction about the government’s failure to maintain the order of the materials, if the evidence at trial suggests that is relevant. It certainly doesn’t justify dismissal. But filing the motion does help fuel the general Trump narrative about alleged government misconduct and the political “witch hunt” prosecution.

With most judges, this motion wouldn’t go anywhere. But it might be the kind of claim the defense could get Judge Cannon to bite on, given her demonstrated hostility to this prosecution. At this point Jack Smith might almost prefer that — if she dismissed the case on this basis, he could appeal to the 11th Circuit and at the same time ask them to remove Cannon from the case.

But for now, just add this to the long list of motions the judge needs to resolve. There still is no trial date set, more than a year after the case was first indicted.

Georgia State Case - January 6 Allegations

You’ll recall from last week that the Georgia Court of Appeals stayed all proceedings involving the nine defendants, including Trump, who have appealed the denial of their motion to disqualify DA Willis. The stay order does not appear to apply to the remaining six defendants, raising the possibility that the case against them – even their trial – might proceed.