Monday morning started off slowly. I was beginning to eye my basketball brackets and settling in to write a primer on what we could expect tomorrow when Trump files his opening brief with the Supreme Court in the presidential immunity appeal. Then, things started hitting from all sides. By the end of the day, there were developments in the remaining three criminal cases against Trump, as well as the New York AG’s civil fraud case. So, hold on as we ride the whirlwind and try to cover all of the legal developments from today. I’ve headed each case in bold so you can go straight to the ones that interest you the most.
Since we’re playing four corners with the four cases tonight, you may even want to save the Mar-a-Lago piece until you’re feeling fresh in the morning.
Today, Trump filed a request with the court of appeals in New York to stay execution of the judgment against him. He can’t find anyone to give him a bond for the $454 million and counting he owes the people of New York. “This case has no victims, no damages, and no actual financial losses,” Trump’s lawyers wrote, ignoring the fact that the Judge who heard the evidence in the case ordered the Trump Organization and individual defendants to disgorge fraudulently obtained profits.
Unless Trump comes up with a bond or the court gives him some breathing space, which he’s really not entitled to, New York AG Tish James can begin collecting on the judgment this coming Monday. In a filing today, his lawyers said he was turned down for a bond by 30 companies.
Also in New York, in the Manhattan DA’s criminal case again Trump, Judge Juan Merchan issued his decisions on pre-trial motions from both Trump and the prosecution this afternoon. This is interesting because the trial is on hold until the Judge holds a hearing, a week from today, on the discovery issue raised by Trump, who says the whole case is due to be dismissed or at least delayed by months. Most people don’t do work, especially detailed, painstaking work, if it’s going to ultimately prove unnecessary, and judges are no different than most people in this regard. The fact that the Judge is methodically working his way through the tasks that need to be done in advance of trial suggests he doesn’t anticipate granting Trump’s motion, at least not a full dismissal. Right now, the case is on hold, with April 15 as the earliest date for trial; the Judge said he’d set a trial date if still necessary after he ruled on Trump’s motion last week.
Trump’s motions included one to prevent Michael Cohen from testifying, which the Judge denied. Trump said Cohen wasn’t trustworthy and had lied in the past, but the credibility of a witness is a matter for the jury to decide. The Judge pointed out there was no law on Trump’s side, but thanked him for his “interest in protecting the process of justice and the integrity of this court.” It’s entirely possible that this Judge possesses a rich sense of irony.
Trump’s lawyers remain free to use evidence of lies Cohen has told in the past as well as his perjury conviction to impeach him on cross-examination—if they dare. That’s a double-edged sword since Cohen was convicted of some of the same conduct Trump is charged with here.
The Judge also rejected Trump’s motion to block testimony from Stormy Daniels and Karen McDougal, as well as Trump’s attempt at keeping prosecutors from presenting evidence about the 2015 Trump Tower meeting between AMI (the parent for the National Enquirer) CEO David Pecker, Michael Cohen and Trump, where the catch-and-kill scheme to prevent Trump’s philandering from coming to light was discussed. But the Judge was careful to impose limitations to keep the testimony from going too far and becoming unfairly prejudicial. This is what a good judge does—calling the balls and strikes and making sure the process is fair to both sides. It’s reassuring to see this Judge taking great care to protect the integrity of the trial. This is the kind of judge who gets affirmed on appeal when there’s a conviction.
In a number of instances, the Judge says that whether evidence will ultimately be admitted at trial needs to be determined at that time. This is not a “kick the can down the road” type ruling; instead, it’s entirely appropriate when talking about the admissibility of evidence to see how the issues tee up at trial to determine what’s relevant. For instance, Trump wanted a blanket prohibition against admitting any of his public statements about the case. The prosecution argued that they were admissions by a defendant, which are always admissible. The Judge ruled that the prosecution should be prepared to explain when they prepare to offer it into evidence why each statement is admissible, and Trump can make “good faith objections.” This is how good, experienced judges handle trial evidence; for certain types or pieces of evidence, it may not be clear whether it will be relevant and admissible until the trial begins to play out. It’s always possible that a defendant can “open the door” to evidence that wouldn’t otherwise be admissible, making it relevant through questions he asks a witness, for instance.
We’ve talked in the past about the calculus a judge engages in when deciding whether to admit evidence. Evidence must be relevant to be admissible. All good evidence is prejudicial in the sense that it tends to point to the defendant’s guilt, so the prosecution’s evidence is going to be prejudicial in that sense. But judges are to exclude unduly prejudicial evidence. A good example of those legal rules played out here when the government sought to introduce evidence about a $50,000 expense claim involving Cohen and a firm hired to “rig an online poll ranking business leaders in defendant’s favor.” The Judge decided that information about the payment would be admissible because it “relates directly to Cohen's reimbursement and thus goes to the alleged falsification of business records.” He wrote that it’s relevant because it explains that payment, which is part of the money flowing to Cohen, but he prohibits the prosecution from mentioning the payment was to rig a poll. That fact, the Judge concludes, “is not necessary and may not be introduced,” a good example of excluding evidence because it would be unduly prejudicial.
We see that same process in play when the Judge rules on the admissibility of the Access Hollywood tape. Again, the court weighed considerations of relevance and prejudice:
Prosecutors argued that the "evidence at trial will show that after the release of the Access Hollywood Tape one month before the presidential election, Defendant and his campaign staff were deeply concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular." The Judge concluded that “the tape helps establish Defendant's intent and motive for making the payment to Daniels and then, attempting to conceal them,” so it’s relevant.
But the Judge had sympathy for Trump’s argument that the evidence has to be balanced in a way that avoids “undue prejudice” to him and suggests there needs to be a compromise.
The Judge decided that “the proper balance lies in allowing the People to elicit testimony about” the Access Hollywood Video, which “contained comments of a sexual nature which Defendant feared could hurt his presidential aspirations.” But the Judge concludes it isn’t “necessary that the tape itself be introduced into evidence or that it be played for the jury.
It’s a Solomonic ruling that splits the baby, permitting the government to prove its case without straying into material that would be unfairly prejudicial to a defendant. This one was a close call, and another judge might have permitted the government to play the tape. But Judge Merchan is letting the government go far enough to explain to the jury why Trump engaged in the scheme to cover up the hush money payments—he was doing it because he feared the election hung in the balance—while protecting any convictions the government gets from an argument on appeal that the evidence was too prejudicial.
These rulings suggest Judge Merchan will live up to his reputation for fairness and toughness. The Judge’s full order on Trump’s motions can be found here and on the prosecution’s motions here.
Also Today, Trump asked Fulton County Judge Scott McAfee to issue a certificate of appealability, which is necessary if Trump is going to appeal the Judge’s order that permits DA Fani Willis to stay on the case. A COA is necessary for a pre-trial (“interlocutory”) appeal, which requires the consent of the trial judge in the first instance and the court of appeals as well.
If Judge McAfee grants the COA, the defendants will have to convince the court of appeals that one of the three circumstances set forth in Georgia’s appellate rules exist for them to hear the case:
That deciding the issue on appeal will end the case. It won’t here, so check this one off. If Willis is removed, another prosecutor could pick up the case.
That the trial judge’s order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party. Also not the case here since McAfee tracked the law on what constituted a conflict of interest when he permitted Willis to stay on the case, but then went significantly beyond it in requiring Wade to step aside.
The establishment of precedent is desirable. That might be a hook here, but there’s no reason to believe precedent needs to be set before trial in this case and that it can be done as effectively on appeal if there is a guilty verdict.
Don’t be surprised if Judge McAfee doesn’t issue a COA or, if he does, if the court of appeals declines to hear the case. If this appeal does happen now, it will have the odor of the type of special treatment too many courts have offered Trump, the tendency to bend over backwards to protect his legal rights in ways that don’t apply to people generally.
Tomorrow, Trump has to file his opening brief with the U.S. Supreme Court, making out his case for the Court to dismiss Jack Smith’s election interference case against him. This is the case where Trump’s lawyer conceded in oral argument before the court of appeals that Trump’s argument for immunity meant a president could use SEAL Team Six to take out an opponent. None of the judges on that panel posed the question that was the logical step to Trump’s lawyers: Doesn’t that mean Joe Biden could legally take out his political opponents too?
Of course, he can’t, and that’s not how immunity works. Former presidents shouldn’t have total immunity from all criminal prosecution for the rest of their lives by virtue of spending four years in the White House.
In addition to Trump’s own brief, Tuesday is the deadline for anyone who wants to file an amicus brief in support of his argument. We’ll take a look at the briefs as they come in.
Late in the day, Judge Cannon gave an order in the Mar-a-Lago case that has a lot of people shaking their heads. In an order that consisted of two pages and three footnotes, the Judge gave both sides until April 2 to “file proposed jury instructions limited to the essential elements of the offenses charged in Counts 1 through 32.” The trial is scheduled for May, and the Judge still has key motions to consider. This is a short deadline for a Judge who has been comfortable keeping far more pressing matters on a back burner.
Although the order is only two pages, it’s perplexing. I read it several times, trying to figure out what it means. It turns out it’s two pages of crazy stemming from the Judge’s apparent inability to tell Trump no when it comes to his argument that he turned the nation’s secrets into his personal records by designating them as such under the Presidential Records Act. After failing to reach a final decision on that motion last week, she is now presenting the parties with two “legal scenarios,” each of which seems to assume that the Presidential Records Act gives Trump the ability to morph national secrets into personal papers. Her two scenarios involve two different ways the Presidential Records Act could help Trump out, but they’re both wrong. The Presidential Records Act isn’t a way around the rules for handling classified information. Just like when the Eleventh Circuit reversed her when she tried to prevent the government from using the items seized during the search of Mar-a-Lago in its investigation, Judge Cannon misses the fact that these items were government property, not Trump’s personal possessions.
In her order, the Judge writes, “understanding that juries are judges of the facts, not the law, the proposals shall take care to specify … exactly what factual questions are reserved for the jury on Counts 1 through 32 in light of the recently argued motions to dismiss.” Then, she goes on to say, “With respect to the proposed language pertinent to the issue of “unauthorized possession” specifically, the parties must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.”
First off, juries indeed decide issues of fact not issues of law. So the Judge should be doing the heavy lifting here. Instead, she seems to want to pass this off as a quasi-factual issue, asking the lawyers to figure out how she can let the jury decide whether Trump transmogrified classified documents into personal property. (Even if he pulled off that feat, it wouldn’t prevent Trump from being prosecuted for violating a criminal law that protects National Defense Information, because Trump can’t magically change the nature of the information contained in the documents recovered during the search of Mar-a-Lago.)
Second, lawyers don’t write hypothetical jury instructions. They propose the instructions they believe are correct and the judge makes a final decision about how to instruct the jury as to the law it must apply, once the jury decides what the facts are. I’ve never had a judge say, “you know, I have no idea what the law is here, so lets make a couple of different assumptions about it, and even though they’re both wrong, give me some ideas.”
The assumptions in Judge Cannon’s two scenarios virtually direct the jury to find Trump not guilty, by suggesting that a president can hold onto any government property he wants to as long as he designates it as personal before he leaves office. The only questions she leaves open is whether anyone can second guess a former president who pinky promises he decided something was personal before he went back home. For instance, in the first one, she directs the lawyers to assume that juries get to examine each item a former president is charged with retaining and decide whether the government has proven that it is personal or presidential. So, it’s up to the jury to decide what’s personal and what isn’t.
In her second scenario, she writes, “A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision. Although there is no formal means in the PRA by which a president is to make that categorization, an outgoing president’s decision to exclude what he/she considers to be personal records from presidential records transmitted to the National Archives and Records Administration constitutes a president’s categorization of those records as personal under the PRA.” In other words, Judge Cannon believes Trump has a magic wand that could turn the nuclear codes into his personal notes as long as he says he did it, and no one has the right to tell him no.
So Judge Cannon, who didn’t rule for Trump on the specious Presidential Records Act motion last week, essentially acknowledged she intends to do so today. She’s wrong about the law, offering two options, one that is really bad and one that is worse. Under option one, if only one juror thought a record had been designated by Trump as personal, he’d be acquitted. But under option two, as long as Trump says they’re personal records, the government is entirely out of business. Presumably, the Judge would take the case away from the jury and dismiss the charges. And that’s nuts, because, I’ll say it again, it means Trump (and any future president) can take documents clearly marked as Top Secret and containing information about matters like nuclear codes, U.S. battle plans, or information that identifies highly placed human sources putting their lives at risk, declare them to be his personal papers and walk out of the White House with them.
The government can’t play ball here with Judge Cannon’s bad interpretation of the law. Expect their response to be hard-hitting. The bottom line is that the Presidential Records Act doesn’t forgive Trump for violating criminal laws regarding handling of national secrets.
All of this comes as we are learning that Trump wants to bring convicted felon-until-he-was-pardoned Paul Manafort back. Manafort is “in talks” to come to work for the campaign according to the Washington Post. Apparently, working for oligarchs aligned with Putin makes for good expertise for helping an American presidential candidate. This is the same Paul Manafort who worked for Trump for no pay and handed over campaign strategy data to a Russian intelligence officer. Manafort was convicted of tax fraud and bank fraud as part of the Mueller investigation, was released from prison to home confinement in May of 2020 during the height of the pandemic, and was pardoned by Trump that December before Trump left office.
Only the best people.
We’re in this together,
Joyce
