The Weekend Wrap: October 8, 2023

Trump claims immunity and SBF goes to trial

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

Trump Prosecutions

Delay, delay, and dismiss were the key defense goals on display last week in the Trump prosecutions.

D.C. Federal Case - January 6 Allegations

On Monday Prosecutors blasted Trump’s request for two additional months to respond to motions (the original deadline was Oct. 9) and to review classified materials, arguing that the defense was simply seeking to delay the trial. Prosecutors noted that the defense has been saying for months – even before the case was indicted – what their defenses would be. But other than claiming there would be numerous “novel and complex” legal issues, the defense still had not filed a single motion.

Prosecutors also rejected the claim that the defense needs more time to review classified materials. Unlike the Florida case, the D.C. case does not involve a significant amount of classified information. Prosecutors said they do not intend to use any classified materials in their case in chief, and noted that the amount of potentially relevant material that needs to be reviewed by the defense is relatively small.

Without waiting for a ruling on the request for more time, on Thursday the defense filed their first motion, and it’s a biggie. They moved to dismiss the entire case based on “presidential immunity.” They argue that Trump cannot be prosecuted because his “efforts to ensure election integrity and to advocate for the same” were within the scope of his duties as president, and that a president is immune from criminal prosecution for any actions within the “outer perimeter” of his official duties. (That “outer perimeter” standard comes from Supreme Court cases holding that a president is immune from civil damages for official actions – but that standard has never been applied to criminal charges.)

The Impeachment Clause of Article I provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” That language appears to contemplate that a former president could be prosecuted. But Trump claims this language means that only an officer who is convicted in an impeachment proceeding and removed from office may later be prosecuted. Because the Senate failed to convict him in the impeachment related to January 6, he claims he is now immune from a criminal prosecution based on those same events.

This motion is not likely to succeed. If granted, it would mean a president is above the law. It would mean, for example, that if a president took official actions in exchange for bribes but the conduct was not discovered until he was already out of office, it would be impossible to prosecute him. I think even this Supreme Court is unlikely to go that far.

The real significance of this motion is the potential it creates for delay. A defense of complete immunity from prosecution is one of the relatively few claims that give a defendant a right to an interlocutory, or pretrial, appeal. Once Judge Chutkan denies the motion, Trump will have a right to appeal to the D.C. Circuit and potentially the Supreme Court before going to trial. The D.C. Circuit would likely affirm, and I expect the Supreme Court might not even take the case. But unless those courts are willing to act extremely quickly, this motion has the potential to push the current March trial date past the Republican nominating convention and even past the November election.

Let’s hope the appellate courts will recognize the urgency of having this case resolved prior to the election and will act with the necessary speed. They can definitely move that quickly if they want to.

On Friday, Judge Chutkan granted the defense motions for additional time in part, giving the defense two more weeks, until October 23, to file motions to dismiss. She also granted additional extensions of time to file other motions, but much less than the two months the defense had requested.

Florida Federal Case - Mar-a-Lago Documents

A couple of weeks ago when Trump’s attorneys asked that the schedule for handling classified materials be bumped back by three months, prosecutors argued it was effectively a request to delay the May trial date. Now the defense has made that request explicit. In their reply brief on that motion, they have asked that the trial be moved to mid-November 2024 or later. (Mid-November? I can’t imagine why they selected that date.)