The Weekend Wrap: June 9, 2024

More delays in Georgia and Florida, and Biden trial draws to a close

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

Trump Prosecutions

Georgia State Case - January 6 Allegations

You’ll recall that the Georgia Court of Appeals granted the request by Trump and eight other defendants to hear the appeal of their motion to disqualify DA Fani Willis. That motion, which Judge McAfee denied after several days of hearings, was based on Willis’s romantic relationship with the man she appointed as lead prosecutor and the defense claim that she benefited financially from his appointment. 

Last week the Georgia Court of Appeals said it will hear arguments in the case on October 4. The court also ordered that the lower court proceedings against these nine defendants be stayed until the appeal is resolved. 

According to Georgia practitioners, both the timetable of the appeal and the issuance of the stay are what would routinely be expected in any case. That didn’t stop some on the left from claiming that the court’s actions were politically motivated to delay Trump’s trial. Those commentators fail to recognize that when they reflexively claim any court decision they don’t like is political or “rigged,” they are doing exactly what Trump does. But the courts aren’t to blame for this mess.

So where does that leave the Georgia prosecution? Clearly the trial, at least as to these nine defendants, will not take place before 2025 at the earliest. Those who joined in this appeal and whose cases are now stayed include most of the big-name defendants, including Trump himself, Rudy Giuliani, Mark Meadows, and Jeffrey Clark. The odds were already slim that the trial of Trump in this case would begin before the election, but now there is zero chance.

But six of the remaining defendants did not join in the motion or the appeal. As to them, the case is not stayed — at least not yet. They include former Trump attorney John Eastman, Georgia state senator and fake elector Shawn Still, and four other lesser players. Theoretically, the case against them could still proceed.

Several months ago, Judge McAfee floated the idea of breaking the case into two trials because going to trial with nineteen (now fifteen) defendants would be too unwieldy. This development has sort of done that for him - a trial against the six remaining defendants could theoretically go forward while the appeal of the other nine is being concluded.

Even though Trump would not be on trial, all the evidence of his misconduct would still come into evidence as part of the overarching RICO charge for which all defendants were indicted. In other words, even without the marquee defendants, the trial would provide a full public (and televised) airing of the January 6 plot and the criminal actions of Trump and the others.

I’m not saying this is likely to happen. There would be some risk in allowing the other defendants to proceed to trial. If the Court of Appeals later ruled that Willis should have been disqualified, any convictions could be tossed out. These defendants did not join the motion and could be deemed to have waived the argument, but a court might rule that the conflict was not waiveable. There’s also no guarantee that Willis or the judge would want to proceed this way, or that even the smaller trial could begin or be concluded before the election. But it’s an intriguing possibility.

One of the remaining defendants, former Coffee County elections supervisor Missy Hampton, has already asked Judge McAfee to pause the proceedings against her, arguing that the stay from the court of appeals should apply to the entire case. This may be the most prudent course for Judge McAfee: pausing the entire case against all defendants until the court of appeals decides. If that happens, the Georgia case is basically on the sidelines for the rest of 2024.

New York State Case - Hush Money/False Business Records

Trump’s attorneys filed a letter with Judge Merchan asking him to lift the gag order that prevents Trump from publicly attacking witnesses, jurors, or court personnel. They argued that because the purpose of the order was to protect the integrity of the trial proceedings, now that the trial is over the order is no longer needed and Trump’s First Amendment rights have to take precedence.

The DA filed an opposition and requested that the judge require the parties to file briefs on it as part of the regular post-trial briefing schedule. Prosecutors argued the order is still necessary to preserve the integrity of the proceedings and fair administration of justice until sentencing and all post-trial motions have concluded.

On Friday there was a brief flurry of excitement when Judge Merchan sent a letter to the parties about a post that appeared on the court’s Facebook page the day before the jury verdict. The post said: “My cousin is a juror and says Trump is getting convicted. Thank you folks for all your hard work!!!”

This was pretty clearly a fake and the work of an Internet troll. In fact, the man who posted it identifies himself in his Facebook profile as a “professional sh*t poster” and later confirmed himself that the post was a fake. That didn’t stop the MAGA world from running wild with it and claiming this means Trump’s convictions must be thrown out based on juror misconduct.

Judge Merchan had to notify the parties about the post, given that it was on the court’s own page. But that doesn’t mean he thinks there is anything to it. Nothing is going to come of this - but you can expect to hear the “sh*t post” cited for years as “proof” that the trial was rigged against Trump all along.

In the meantime - sentencing is still set for July 11.

Florida Federal Case - Mar-a-Lago Documents

Judge Cannon continues to surprise and disappoint.