Trump Prosecutions > Likes and Comments
THE HUSH-MONEY CASE: ARREST, INDICTMENT, AND ARRAIGNMENTOn April 4, 2023, Donald J. Trump was arrested and arraigned in a case captioned “The People of the State of New York vs. Donald J. Trump,” case number IND-71543-23 in the Supreme Court of The State of New York, County of New York. In New York State, unlike other state jurisdictions, a supreme court is a trial court and not an appellate court.
The indictment and prosecutor’s statement of facts unsealed on April 4, 2023, can be accessed at https://s3.documentcloud.org/document... and https://www.politico.com/f/?id=000001..., respectively.
Trump pleaded “not guilty” to each of the 34 counts of the indictment.
Going forward in this topic, this case will be referred to as the “hush-money case.”
THE CLASSIFIED DOCUMENTS CASEOn June 8, 2023, an indictment was filed against defendants Donald J. Trump and Waltine Nauta in the U.S. District Court for the Southern District of Florida, Case No. 23-80101-CR, with regard to classified government documents taken and stored by former President Trump and his associates at Mar-a-Lago in Florida. The counts, several of which have a maximum sentence of twenty years of imprisonment, include willful retention of national defense information, conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document or record, concealing a document in a federal investigation, a scheme to conceal, and false statements and representations. A copy of the indictment can be located at politico.com/f/?id=00000188-a12f-db74....
US DISTRICT JUDGE AILEEN CANNON IN THE CLASSIFIED DOCUMENTS CASEThis is an interesting July 21, 2023 New York Times article regarding Judge Aileen Cannon’s background and experience: https://www.nytimes.com/2023/07/21/us.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual New York Times paywall.)
The article points out that Judge Cannon may have learned from her initial error (reversed on appeal) in appointing a special master to review the classified documents at issue. Her July 21, 2023 ruling—and the judicial proceeding leading up to it—appears to be more impartial regarding Trump’s arguments. She has set a trial date of May 24, 2024, contrary to the position of Trump’s attorneys that the trial should occur after the 2024 presidential election.
Time will, of course, tell.
Superseding Indictment in the Trump Classified Documents CaseOn July 27, 2023, the Grand Jury filed a Superseding Indictment in United States of America v. Donald J. Trump et al., U.S. District Court for the Southern District of Florida, Case No. 23-CR-80101. A copy of the Superseding Indictment can be accessed at https://s3.documentcloud.org/document.... A July 27, 2023 AP article summarizing the Superseding Indictment (including the new charges and a new defendant) is at https://apnews.com/article/donald-tru....
The new factual allegations in the Superseding Indictment are mostly set forth in paragraphs 74–87 and 91 thereof. The new legal allegations are mostly set forth in paragraphs 113–20.
AUGUST 1, 2023 FEDERAL INDICTMENT OF DONALD TRUMP REGARDING HIS ALLEGED ACTIONS TO OVERTURN THE 2020 ELECTIONThe August 1, 2023 indictment of Donald J. Trump in the U.S. District Court for the District of Columbia for his alleged attempts to overturn the 2020 election can be accessed here: https://storage.courtlistener.com/rec....
This indictment is easily readable, and I recommend reading it. The media accounts of the indictment–whether left, right, or center–have often been inaccurate. It’s best–as in all such cases whenever possible–to read the actual document instead of relying on media spin.
I am cross-filing this post in the “Trump Prosecutions” and “Revolutions, Coups, Insurrections, and Rebellions” topics in this Goodreads group.
DAVID FRENCH: OPPOSING ARGUMENTS RE 2020 ELECTION CASEPer Wikipedia, “David Austin French (born January 24, 1969) is an American political commentator and former attorney who has argued high-profile religious liberty cases. He is a columnist for The New York Times. Formerly a fellow at the National Review Institute and a staff writer for National Review from 2015 to 2019, French currently serves as senior editor of The Dispatch, and occasionally a contributing writer for The Atlantic.”
In an August 10, 2023 column, David French constructed an interesting debate (as it were) between the prosecution and defense regarding the indictment of Donald Trump as to the latter’s attempts to overturn the result of the 2020 presidential election: see https://www.nytimes.com/2023/08/10/op.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual New York Times paywall.)
French concludes this column with the following remarks (italics in original):
My view is that the American government faces greater risks if prosecutors don’t try to punish Trump for his coup attempt. As I wrote on the day of the indictment, it’s necessary to prosecute Trump on these facts—not because a conviction is inevitable but because our nation cannot set a precedent that presidents enjoy a zone of impunity for their misconduct that no other citizen enjoys.
I wouldn’t just be comfortable bringing this case to a jury; I’d be eager to make my argument. But I’d also know that Trump’s legal team has its own defenses, and it’s far from certain that a judge or a jury will agree with the prosecution’s case. But democracies aren’t sustained without risk, and prosecuting Trump is a risk our nation needs to take.
THE FULTON COUNTY, GEORGIA INDICTMENT OF TRUMP AND OTHERSThe August 14, 2023 indictment of Trump and others in the Fulton County, Georgia Superior Court can be accessed at https://www.politico.com/f/?id=000001.... For a summary, see this August 15, 2023 Politico article: https://www.politico.com/news/2023/08....
JUDGE RULES THAT TRUMP IS NOT IMMUNE FROM PROSECUTION IN THE 2020 ELECTION CASE BROUGHT IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIAU.S. District Judge Tanya S. Chutkan’s December 1, 2023 Memorandum Opinion (48 pages) is at https://ecf.dcd.uscourts.gov/cgi-bin/....
A December 1, 2023 Politico article about this ruling is at https://www.politico.com/news/2023/12....
GOVERNMENT'S NOTICE PURSUANT TO FEDERAL RULE OF EVIDENCE 404(b) IN THE FEDERAL PROSECUTION OF DONALD TRUMP IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIAIn the federal criminal case against Trump regarding the 2020 election, the Government filed, on December 5, 2023, a Notice Pursuant to Federal Rule of Evidence 404(b). The following December 5, 2023 Washington Post article discusses and links this notice: https://wapo.st/4a4wqSl. (In accordance with my Washington Post subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual Washington Post paywall. I don’t know whether the link to the notice document can be accessed without charge, and I cannot find another free access to this court document.)
This filing is more significant than what might appear on the surface. Specifically, Rule 404 of the Federal Rules of Evidence provides, in pertinent part, as follows:
Rule 404. Character Evidence; Other Crimes, Wrongs, or ActsAs the above-linked article explains, the Government (prosecution) filed such notice on December 5, 2023, and that document contained notice of the Government’s intention to use significant incriminating evidence showing Trump’s “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” pursuant to Rule 404(b)(2).
(a) Character Evidence
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. . . .
(b) Other Crimes, Wrongs, or Acts
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
SUPREME COURT ACCEPTS JAN. 6 CASE THAT COULD AFFECT TRUMP PROSECUTIONThe foregoing is the title of this December 13, 2023 Washington Post article: https://wapo.st/3uWQRk1. (In accordance with my Washington Post subscription, the foregoing link provides access to this article for fourteen days without charge, notwithstanding the usual Washington Post paywall.)
EXCERPT:
The Supreme Court on Wednesday [December 13, 2023] took up a challenge to a law used to charge hundreds of people in connection with the Jan. 6, 2021 Capitol riot, which also has been levied against former president Donald Trump in his federal election-obstruction case.I am cross-filing the present post in the “Trump Prosecutions” and “Revolutions, Coups, Insurrections, and Rebellions” folders of this Goodreads group.
An appeals court said the government could proceed with prosecuting defendants charged under a federal law that makes it a crime to obstruct or impede an official proceeding — in this case, disruption of Congress’s formal certification of President Biden’s 2020 election.
Obstruction is also one of the four counts brought against Trump by special counsel Jack Smith in connection with the former president’s attempts to block Biden’s victory.
It is unclear how the court’s acceptance of the Jan. 6 case, which involves other defendants, might complicate plans for Trump’s trial, scheduled for March 4. The justices are separately weighing Smith’s request to fast-track consideration of Trump’s claim he is immune from prosecution in the case.
APRIL 22, 2024 NOTE:
The above-referenced case accepted by the Supreme Court is listed on its docket as follows: Joseph W. Fischer v. United States, U.S. Supreme Court Case No. 23-5572.
THE PRESIDENTIAL IMMUNITY ISSUE IN THE FEDERAL PROSECUTION OF FORMER U.S. PRESIDENT DONALD J. TRUMP REGARDING HIS ATTEMPTS TO OVERTURN THE 2020 PRESIDENTIAL ELECTIONOn December 1, 2023, the U.S. District Court for the District of Columbia denied Trump’s claim of absolute presidential immunity (see the December 2, 2023 post 9 above at https://www.goodreads.com/topic/show/...) in the federal prosecution of Trump for alleged criminal acts during and after the 2020 presidential election. Trump thereafter appealed that ruling to the U.S. Court of Appeals for the District of Columbia Circuit. Special Government counsel Jack Smith then asked the U.S. Supreme Court to take the immunity case on an emergency basis before a ruling by the Court of Appeals. The Supreme Court denied that request, and the matter is now again active in the Court of Appeals. Trump filed his opening brief (https://s3.documentcloud.org/document...) in the Court of Appeals on December 23, 2023. The Government’s brief is due December 30, 2023, and the oral argument is scheduled for January 9, 2024. For additional background and information see this December 24, 2023 Politico article: https://www.politico.com/news/2023/12....
Alan,You might be interested to know about a podcast featuring Ken White and Josh Baro called Serious Trouble. It focuses on Trump’s legal proceedings and is sophisticated though aimed at thoughtful lay people. White is a successful criminal defense lawyer based in Los Angeles. Baro is an economist and political commentator based in NYC.
The podcast never talks down to its audience and is refreshingly insightful. White makes no bones that he does not respect Trump, so be forewarned. But his understanding of the criminal process is enlightening.
Serious Trouble drops a new episode about once a week.
Brad
Brad wrote: "Alan,You might be interested to know about a podcast featuring Ken White and Josh Baro called Serious Trouble. It focuses on Trump’s legal proceedings and is sophisticated though aimed at thought..."
Thanks, Brad. Is this video/audio or is a transcript available? The reason I ask is that I avoid podcasts in video or audio form as much as possible. I am more attuned to the written word.
I see no indication that a transcript is available.
Oops. I have been corrected. Evidently, at the bottom of the title page for each episode, there is a link to retrieve a transcript.
Brad wrote: "Oops. I have been corrected. Evidently, at the bottom of the title page for each episode, there is a link to retrieve a transcript."Thanks. Do you have the URL for the podcast?
Brad wrote: "https://api.substack.com/feed/podcast..."Unfortunately, this is an unreadable XML file.
Sorry Alan. Just search on Serious Trouble.
Brad wrote: "Sorry Alan. Just search on Serious Trouble."It looks like I'd have to be a paid subscriber to access it. I think I'll pass.
February 6, 2024 Decision of the U.S. Court of Appeals for the D.C. Circuit Denying Trump’s Immunity Appeal in the 2020 Election CaseToday, a panel (three judges) of the U.S. Court of Appeals for the District of Columbia filed their opinion and judgment denying Trump’s interlocutory appeal regarding immunity. The per curiam opinion (unanimous opinion of the three judges) can be accessed at https://storage.courtlistener.com/rec...). The judgment states:
This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel.There are, of course, many media accounts of today’s development, including https://www.politico.com/news/2024/02....
On consideration thereof, it is ORDERED and ADJUDGED that the order of the District Court appealed from in this cause be affirmed, in accordance with the opinion of the court filed herein this date.
The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued. See D.C. Cir. R. 41(a)(4).
The judgment contains a lot of procedural legal jargon. The “mandate” is the official return of the case from the Court of Appeals to the U.S. District Court for the District of Columbia. Trump has two options at this point: (1) he could file a petition for rehearing or a petition for rehearing en banc to the full Court of Appeals (all active judges on the court), or (2) he could file immediately an application to the Supreme Court for stay of the mandate pending a petition for certiorari (request to the Supreme Court to take the appeal). If, by Feb. 12, he files an application in the Supreme Court for a stay of the mandate pending the filing of a petition for certiorari, the appellate clerk will stay the mandate pending the Supreme Court’s disposition of the mandate. If, instead, Trump decides to seek rehearing en banc (a simple petition for rehearing to the panel would never be granted), the Court of Appeals mandate will not be stayed. So, the Court of Appeals is kind of putting Trump in a bind. They would prefer that he go directly to the Supreme Court. In either case (petition for rehearing en banc or petition for certiorari to the Supreme Court), neither the Supreme Court nor the en banc Court of Appeals is obligated to take the case; they could simply deny the petitions, thereby leaving today’s panel decision and judgment as the final judicial determination of Trump’s categorical immunity claim. If, however, the en banc Court of Appeals decides to take the case, the loser before the en banc court could then file a petition for certiorari in the Supreme Court.
The panel opinion is interesting, though not quite what I had expected due to the fact that I had not read the parties’ appellate briefs. I doubt that Trump will prevail in either the en banc Court of Appeals or in the Supreme Court (or both). The arguments of his counsel verge on the ridiculous. At one point the panel opinion called one of their arguments a “logical fallacy,” citing that “master” of logic Antonin Scalia (p. 44). At another point, they characterized one of Trump’s arguments as “irrational” (p. 48). It is possible that Trump’s whole house of cards is going to collapse at some point. The only question is whether he can become president before that time and then instruct the Department of Justice to dismiss the federal cases or, alternatively, purport to pardon himself. The latter would raise another “question of first impression” (never decided before) in the federal court system.
What the Law Says in 3 Cases That Could Decide Trump’s FateThe foregoing is the self-explanatory title of the following February 8, 2024 New York Times article: https://www.nytimes.com/interactive/2.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
I am cross-filing this comment in the “Trump Prosecutions” and “United States Constitution and Government” topics of this Goodreads group.
SUPPLEMENT TO POST 23 (FEBRUARY 6, 2023): DEVELOPMENTS IN TRUMP’S IMMUNITY APPEALOn Monday, February 12, 2024, former President Trump filed an “Application for a Stay of the D.C. Circuit’s Mandate Pending the Filing of a Petition for Writ of Certiorari” in the U.S. Supreme Court (https://s3.documentcloud.org/document...). This application requested, on page 4, the following relief:
This Court should stay the D.C. Circuit’s mandate pending resolution of President Trump’s petition for certiorari in this Court and subsequent proceedings on the merits. As additional relief, President Trump also requests that this Court stay the D.C. Circuit’s mandate pending the resolution of a petition for en banc consideration in that court, before the filing (if necessary) of his petition for certiorari in this Court.Chief Justice John Roberts has given the U.S. Government until February 20, 2024, at 4:00 p.m. EST to respond to Trump’s application (see the first February 13, 2024 docket entry at https://www.supremecourt.gov/search.a...).
Note that Trump intends to file a petition for rehearing en banc (by all eleven active judges of the D.C. Circuit) of the February 6, 2024 three-judge D.C. Circuit panel decision. This may be inconsistent with the panel’s judgment that the mandate to the District Court would be stayed only if Trump intended to file an immediate petition for certiorari to the Supreme Court (see https://www.goodreads.com/topic/show/...). Trump is intending to file a petition for certiorari to the Supreme Court only if his petition for rehearing en banc to the D.C. Circuit Court of Appeals is unsuccessful (he cannot file both simultaneously). It will be interesting to see how the Supreme Court handles this. It should be noted, however, that many media sources are inaccurately portraying Trump’s February 12, 2024 application to the Supreme Court as an appeal to the Supreme Court on the merits or as a request for a stay of the mandate pending the filing of an immediate petition for certiorari to the Supreme Court.
The media and other laypersons are obviously and understandably confused by the complicated and somewhat esoteric procedures involved in this interlocutory immunity appeal. During the decades before my retirement from law practice in 2012, I represented many local governments and their officials in constitutional litigation, in which the officials often sought qualified or absolute immunity pursuant to precedential case law of the U.S. Supreme Court. Under that case law, a denial of immunity by a U.S. District Court could be immediately appealed (called an “interlocutory appeal”) to a U.S. Court of Appeals and, if denied by the Court of Appeals, to the U.S. Supreme Court (by way of a petition for certiorari, which the Supreme Court has discretion to grant or deny). During the pendency of such an interlocutory immunity appeal, the District Court proceedings are stayed. This is why the U.S. District Court for the D.C. Circuit has stayed proceedings in the present case, resulting in an indefinite postponement of the trial date. However, because a panel of the U.S. Court of Appeals for the District of Columbia denied immunity on February 6, 2024, the stay of District Court proceedings (including trial) will expire unless the Supreme Court extends that stay under the application submitted by Trump on February 12, 2024.
The procedural aspects of the immunity appeal are quite complicated. For those wishing to explore the procedure further, see the following document setting forth both the Federal Rules of Appellate Procedure and the procedural rules of the U.S. Court of Appeals for the D.C. Circuit: https://www.cadc.uscourts.gov/interne.... The following appellate and local D.C. rules (numbered identically) are particularly relevant to the present proceeding: Rules 26 (Computing and Extending Time), 35 (En Banc Determination), 36 (Entry of Judgment; Notice), 40 (Petition for Panel Rehearing), and 41 (Mandate: Contents; Issuance and Effective Date; Stay). Under Federal Appellate Rule 35(c), “[a] petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.” Under Federal Appellate Rule 40(a)(1), “[u]nless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment.” Under Federal Appellate Rule 35(e), “[n]o response may be filed to a petition for an en banc consideration unless the court orders a response.” Additional relevant rules of the U.S. Court of Appeals for the D.C. Circuit are found in section XIII, Post-Decision Procedures, on pages 56–60 of its Handbook of Practice and Internal Procedures: https://www.cadc.uscourts.gov/interne.... See also the Rules of the Supreme Court of the United States (https://www.supremecourt.gov/filingan...), especially Rules 20–16.
ADDENDUM TO MY PRECEDING POST:On February 14, 2024, Special Counsel Jack L. Smith filed in the U.S. Supreme Court the U.S. Government’s Response in Opposition to the February 12, 2024 Application by former President Trump for a Stay of the Mandate of the United States Court of Appeals for the District of Columbia Circuit. This Response can be accessed at https://www.supremecourt.gov/DocketPD....
The Government’s response sets forth strong arguments in opposition to Trump’s application for stay of the mandate, including arguments against granting Trump immunity from prosecution. It also argues against granting Trump an extended delay for the latter to file a petition for en banc consideration in the Court of Appeals (p. 37, n. 13).
Toward the end of its Response, the Government argues as follows:
Alternatively, if the Court is inclined to grant review, the government respectfully requests that it treat the application as a petition for a writ of certiorari and grant review on the question whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin. If the Court grants review, the government requests that the Court expedite briefing and argument. For all the reasons that the government stated in its petition for a writ of certiorari before judgment and in this response, the public interest weighs heavily in favor of this Court’s issuance of its decision without delay. And in order for the Court to decide this case in its present Term, expedited briefing and argument is necessary.The ball is now in the Supreme Court’s court (so to speak). They will meet privately on February 16, 2024, to discuss pending cases. Perhaps they will rule shortly thereafter on Trump’s February 6, 2024 application and the Government’s alternative requested rulings. We wait with bated breath.
February 16, 2024 Note:
On February 15, 2024, Trump filed a reply to the Government’s above-referenced response: see https://www.supremecourt.gov/DocketPD....
Trial Date Set for March 25, 2024, in New York Hush Money Prosecution of TrumpSee this February 15, 2024 Politico article for details and context: https://www.politico.com/news/2024/02....
FISCHER v. UNITED STATES, U.S. Supreme Court, Dk. # 23-5572 The following background about this case is excerpted from the article cited in post 24 (February 10, 2024) supra:
Two of the four charges against former President Donald J. Trump in the federal election-interference case are based on a provision of the Sarbanes-Oxley Act of 2002. The statute, enacted after the collapse of Enron, the giant energy company, was aimed primarily at white-collar crime. Prosecutors have also charged hundreds of rioters who stormed the Capitol on Jan. 6 under the provision, saying they had obstructed an official proceeding.See the article cited in the above-referenced post for additional details, including the specific legal issue.
The Supreme Court has agreed to hear a challenge to such prosecutions from Joseph W. Fischer, who was accused of breaching the Capitol as Congress met to certify the results of the 2020 election and of assaulting police officers.
Mr. Trump is not involved in the case, but the Supreme Court’s ruling, expected by June, could undermine key parts of the prosecution of the former president.
The Supreme Court’s docket for this case can be accessed at https://www.supremecourt.gov/search.a.... The brief on the merits for the petitioner (Joseph W. Fischer) is located at https://www.supremecourt.gov/DocketPD.... That brief was filed on January 29, 2024. The opposing merits brief of the United States has not been filed but is due on February 28, 2024.
The case has been set for oral argument on April 16, 2024.
March 1, 2024 Note:
The Brief for the United States on the merits was filed on February 28, 2024. It can be accessed at https://www.supremecourt.gov/DocketPD....
ADDENDUM TO POST 26 (February 15, 2024): U.S. SUPREME COURT GRANTS CERTIORARI ON IMMUNITY QUESTION IN TRUMP PROSECUTION REGARDING THE 2020 ELECTIONOn February 28, 2024, the U.S. Supreme Court filed the following order (https://www.supremecourt.gov/orders/c...) in Case No. 23-939 (emphasis added):
The application for a stay presented to The Chief Justice is referred by him to the Court. The Special Counsel’s request to treat the stay application as a petition for a writ of certiorari is granted, and that petition is granted limited to the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Without expressing a view on the merits, this Court directs the Court of Appeals to continue withholding issuance of the mandate until the sending down of the judgment of this Court. The application for a stay is dismissed as moot.Note the Supreme Court’s statement (emphasized above) that it is precisely the “Special Counsel’s request to treat the stay application as a petition for a writ of certiorari” that is being granted. Nevertheless, much of the media has characterized this order as a victory for Trump, because it enables him to delay the trial further, perhaps until after the election. They have apparently not read either the actual order or Special Counsel Jack Smith’s response to Trump’s application for a stay of the mandate. It is true that Smith initially asked simply for a denial of Trump’s application for a stay. But Smith asked, in the alternative, for the Supreme Court to treat Trump’s application as a petition for certiorari, which the Court has now done. Why is this significant? Absent such Supreme Court action, Trump would have filed a petition for rehearing en banc in the U.S. Court of Appeals for the D.C. Circuit. If the en banc Court of Appeals had granted such petition for rehearing, the remand to the District Court would have been stayed or retrieved pending the determination on rehearing. In any event, the decision of the en banc Court of Appeals would have been appealed to the Supreme Court by the losing party. The Supreme Court short-circuited all this by doing the Supreme Court appeal now. See the discussion and the referenced documents in post 26 (February 15, 2024), above.
The case will be set for oral argument during the week of April 22, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Tuesday, March 19, 2024. Respondent’s brief on the merits, and any amicus curiae briefs in support, are to be filed on or before Monday, April 8, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, April 15, 2024.
In other words, the Supreme Court just eliminated an intermediate step in the appellate process that would have resulted in further delay. Given the magnitude and urgency of this issue, and the fact that the Supreme Court has never before considered it, the Court probably decided that it was best that it take the case now, before any further delays. Should it have done so earlier? Probably, but now they have an actual panel decision of the Court of Appeals with which to work.
Is it some travesty of justice that the Supreme Court is scheduling the case for oral argument during the week of April 22, 2024, instead of immediately? No. The parties are entitled to brief this issue before oral argument, and this is a normal briefing schedule. Could it have been speeded up? Perhaps, but the Supreme Court may not want to give anyone an argument that they didn’t have sufficient time to brief the issue before the Court.
I don’t think this order means that the Court is going to recognize immunity for Donald Trump, thereby resulting in the dismissal of all the federal cases against him. But, of course, we don’t really know. We’ll have to see what happens.
March 14, 2024 Ruling on Defendant Trump’s Motion to Dismiss Counts 1–32 of the Classified Documents Prosecution on the Ground of Unconstitutional VaguenessU.S. District Judge Aileen Cannon denied Trump’s motion without prejudice, meaning he can bring the motion at a later time, for example, during briefing regarding jury instructions. See this New York Times article, which includes a copy of Judge Cannon’s two-page order: https://www.nytimes.com/2024/03/14/us.... (In accordance with my New York Times subscription, the foregoing link provides access to this article for 30 days without charge, notwithstanding the usual New York Times paywall.)
Trump has other pending pretrial motions upon which Judge Cannon has not yet ruled.
BRIEFS ON THE MERITS FILED IN THE TRUMP IMMUNITY CASE IN THE U.S. SUPREME COURTFormer President Donald J. Trump filed his brief on the merits in the U.S. Supreme Court on March 19, 2024. It can be accessed at https://www.supremecourt.gov/DocketPD....
The brief on the merits for the United States was filed on April 9, 2024. It can be accessed at https://www.supremecourt.gov/DocketPD....
Former President Trump’s Reply Brief was filed on April 15, 2024. It can be accessed at https://www.supremecourt.gov/DocketPD....
Oral argument is scheduled for April 25, 2024. I will post a transcript of the oral argument when it becomes available. A decision by the U.S. Supreme Court is expected no later than the end of its term in late June or early July 2024.
What sentencing could look like if Trump is found guilty in the pending New York business record falsification trialSee this April 18, 2024 New York Times opinion essay by Norm Eisen: https://www.nytimes.com/2024/04/18/op.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
Here are Eisen’s conclusions:
We will probably know what the judge will do within 30 to 60 days of the end of the trial, which could run into mid-June. If there is a conviction, that would mean a late summer or early fall sentencing. . . .
If Mr. Trump is convicted and then loses the presidential election, he will probably be granted bail, pending an appeal, which will take about a year. That means if any appeals are unsuccessful, he will most likely have to serve any sentence starting sometime next year. He will be sequestered with his Secret Service protection; if it is less than a year, probably in Rikers Island. His protective detail will probably be his main company, since Mr. Trump will surely be isolated from other inmates for his safety.
If Mr. Trump wins the presidential election, he can’t pardon himself because it is a state case. He will be likely to order the Justice Department to challenge his sentence, and department opinions have concluded that a sitting president could not be imprisoned, since that would prevent the president from fulfilling the constitutional duties of the office. The courts have never had to address the question, but they could well agree with the Justice Department.
So if Mr. Trump is convicted and sentenced to a period of incarceration, its ultimate significance is probably this: When the American people go to the polls in November, they will be voting on whether Mr. Trump should be held accountable for his original election interference.
ORAL ARGUMENT IN JOSEPH W. FISCHER v. UNITED STATESSee post 28 (February 19, 2024) above (https://www.goodreads.com/topic/show/...) for background.
The U.S. Supreme Court’s oral argument in this case was conducted on April 16, 2024. The transcript of that oral argument is located at https://www.supremecourt.gov/oral_arg.... This case involves a difficult and complicated question of statutory construction. As a retired litigation lawyer, I found the oral argument fascinating, but a lay person might find it incomprehensible. I thought that the U.S. Solicitor General’s argument and answers to questions were brilliant. I did many appellate oral arguments myself during my three-decade career as a lawyer, and I greatly appreciated the Solicitor General’s command of the record and the applicable law as well as her facility in communicating her arguments. I recommend her argument as a model for law students and others interested in criminal law (I myself handled only a couple of criminal cases and those not as lead counsel) and law generally.
Although I thought, upon reading the entire transcript, that the Solicitor General had much better arguments than the attorney representing the criminal defendant, I cannot predict how the Supreme Court will decide the case. Some of the justices seemed to be trying to find a way to overcome the Solicitor General’s arguments, but it’s not clear to me how the case will be decided. The Supreme Court will post its decision by late June or early July 2024.
NEW YORK BUSINESS RECORDS FALSIFICATION (HUSH MONEY) TRIALRe: People of the State of New York v. Donald J. Trump (New York business records falsification/hush money case)
The New York trial court is publishing online (one business day after each session) the daily transcripts of the trial of Donald Trump in the NY business records falsification (hush money) case. They published on April 23, 2024, the transcript of the first day of proceedings (April 22, 2024) after jury selection. The transcript of this session (and of future sessions) is available at https://ww2.nycourts.gov/people-v-don.... The April 22 transcript includes, among other things, the Court’s opening statement to the jury (starting at page 833), the opening statement of the prosecution (starting at page 857), the opening statement of Trump’s counsel (starting at page 877), and the beginning of the prosecution’s direct examination of the first witness, David Pecker (starting at page 911).
This trial is expected to last about six weeks, and I won’t be giving a daily account of the proceedings. If you are interested (and have time to read them), you can access the transcripts of the daily sessions at the link posted in the preceding paragraph.
This particular trial is not being televised, so the most accurate account we will have of it is through the trial transcripts. It would be interesting to compare/contrast the media accounts of this trial with the actual transcripts. Of course, it would be time consuming to read the transcript of every session, and I doubt I will have time to do so even though I am retired and have some time on my hands.
The transcripts of this and any future Trump criminal trials will likely appear in book form after their conclusion. They will probably be studied by legal scholars and historians for centuries hereafter.
(last edited 4:10 p.m., U.S. Eastern Daylight time, April 24, 2024)
APRIL 25, 2024 ORAL ARGUMENT ON THE TRUMP IMMUNITY CASE IN THE U.S. SUPREME COURTRe: Donald J. Trump v. United States (U.S. Supreme Court Case No. 23-939)
Today (April 25, 2024), the U.S. Supreme Court heard oral argument in this case. The transcript (“Tr.”) of this oral argument can be freely accessed at https://www.supremecourt.gov/oral_arg....
I listened to the audio (video not available) of the oral argument, which lasted almost three hours. It is impossible to predict how the Court will rule on this very difficult and complicated subject. Nor can it be predicted how soon the Court will rule. This is the last oral argument of the Court’s 2023-24 term.
Former President Donald J. Trump has indicated in various public remarks over the past many months that he believes that he has absolute presidential immunity from all allegations in the indictment in this criminal case. However, this is not what his counsel, D. John Sauer, said today at the oral argument. Justice Amy Coney Barrett asked Mr. Sauer: “So you concede that private acts don’t get immunity?” Sauer responded: “We do.” (Tr. 28.) He repeated his agreement with this principle in response to a question by Justice Ketanji Bown Jackson. (Tr. 57–53.)
Justice Barrett referenced (Tr. 28–29) pages 46–47 of the Government’s Brief (https://www.supremecourt.gov/DocketPD...) wherein the Special Counsel made the alternative argument that the Supreme Court could remand to the District Court (trial court) for trial on Trump’s private acts designed to overturn the election, with the proviso that evidence could be presented about official acts as evidentiary background. Justice Barrett asked counsel for the Government (Michael R. Dreeben): “Is another option for the Special Counsel to just proceed based on the private conduct and drop the official conduct?” (Tr. 162.) Mr. Dreeben responded in part:
[I]f the Court were to say that the fraudulent elector scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after January 6th by calling Senators and saying please delay the certification proceeding is private campaign activity, we still think, contrary to what my friend [Mr. Sauer] said, that we could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent. And we would take a jury instruction that would say you may not impose criminal culpability for the [official] actions that he took. However, you may consider it insofar as it bears on knowledge and intent. (Tr. 163.)Accordingly, even if the Supreme Court determines that immunity bars some or all of the claims based on official conduct, it could remand for trial on at least the private claims in the indictment. However, a majority of five of the nine justices is necessary for any determination in this case, and it is unclear what such majority will end up holding in its decision.
When the Supreme Court publishes its decision, I will provide a link to and explanation of same. The Court’s term will end in late June or early July, though it is possible, if not probable, that it will announce its decision before that time.
(edited April 26, 2024)
ADDENDUM TO MY PRECEDING POST:Notwithstanding the current hysteria on the Left (mostly by nonlawyers) predicting that the U.S. Supreme Court is going to replace democracy with monarchy (“the king can do no wrong”) in its decision in the pending immunity case, I think the worst-case scenario is what I outlined in the preceding post. My analysis therein is basically the same as in this April 29, 2024 New York Times article titled “Why an Immunity Ruling in Trump’s Favor Might Not Alter the Shape of His Trial”: https://www.nytimes.com/2024/04/29/us.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
Regarding the question of delay, this article notes:
If the Supreme Court decides there is some immunity for Mr. Trump’s official acts, the dispute would most likely next return to Judge Tanya S. Chutkan to distinguish which alleged actions in the indictment count as official and which as private.I regard it as possible that the Supreme Court might itself distinguish between official and private acts in the allegations of the indictment.
To the extent prosecutors and defense lawyers disagree about how to consider some of Mr. Trump’s conduct, such a proceeding could preview parts of any eventual trial, including potential witness testimony about his words and deeds.
But Professor Buell said that if the judge ultimately ruled against Mr. Trump on one or more such matters, he probably could not appeal back up to the Supreme Court before a trial. Courts usually treat disputes over the nature of evidence as matters to be appealed after a guilty verdict, he said. (emphasis added).
Of course, the alarmists could be right if the views of Justice Alito end up convincing a majority of the Supreme Court justices. I doubt, however, that Chief Justice Roberts and Justice Barrett, along with the three liberal justices (Sotomayor, Kagan, and Jackson), will let that happen.
JURY INSTRUCTIONS IN THE NEW YORK BUSINESS RECORDS FALSIFICATION (HUSH MONEY) CRIMINAL TRIAL AGAINST DONALD TRUMPOn May 29, 2024, the New York trial court read the following jury instructions to the jury: https://www.nycourts.gov/LegacyPDFS/p.... The jury is now deliberating. They have three options: (1) convict Trump by a unanimous 12-0 vote; (2) acquit Trump by a unanimous 12-0 vote; or (3) inform the judge that they are unable to reach a unanimous verdict. In the event of the latter, the judge will probably send them back for further deliberations. If, however, they are unable to reach a unanimous verdict, the judge will declare a mistrial. The prosecution would then decide whether to retry Trump with a different jury.
TRUMP FOUND GUILTY ON ALL 34 COUNTS IN BUSINESS RECORDS FALSIFICATION (HUSH MONEY) CASEWithin the last hour, the New York jury has found former president Donald J. Trump guilty of all 34 counts in the business record falsification (hush money) case.
Sentencing is scheduled for July 11, 2024—four days before the beginning of the Republican National Convention.
MAY 31, 2024 NOTE:
Regarding the aforesaid verdict and its immediate aftermath, see this May 31, 2024 AP article titled “Trump tries to move past his guilty verdict by attacking the criminal justice system”: https://apnews.com/article/trump-2024....
JULY 4, 2024 NOTE:
As a result of the July 1, 2024 U.S. Supreme Court immunity decision (see following two posts), the sentencing in the New York hush money/document falsification case has been postponed until at least September 2024. See https://apnews.com/article/trump-hush....
July 1, 2024 U.S. Supreme Court Decision Regarding Trump ImmunityAddendum to posts 9, 12, 23, 25, 26, 29, 31, 35, and 36
The slip opinions in the U.S. Supreme Court’s July 1, 2024 decision in Trump v. United States can be located at https://www.supremecourt.gov/opinions....
The opinion of the Court was written by Chief Justice John Roberts. It was joined in full by four other justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh), thus making it the majority opinion of the nine justices. Justice Thomas wrote a concurring opinion in which he suggested that the appointment of special counsel Jack Smith was contrary to law; none of the other justices mentioned that issue. In an opinion concurring with the majority opinion in part, Justice Amy Coney Barrett joined most of the majority opinion but dissented on one point. Justice Sonia Sotomayor wrote a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson. Justice Jackson also wrote a separate dissenting opinion.
The various opinions totaled 119 pages in the slip opinions (the official publication in the U.S. Reports will be accomplished at some point in the future). The issues are very complicated, and I will not attempt to address them here. Generally, I agree with the positions articulated in the two dissenting opinions. One can find many media interpretations and evaluations of the decision on the internet. See especially Michael Conway, “How the Supreme Court Broke Its Most Important Rule,” MSNBC, July 2, 2024, https://www.msnbc.com/opinion/msnbc-o.... (Michael Conway, the author of this article, was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. In that role, he assisted in drafting the committee's final report to the House in support of the three articles of impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago.)
(edited July 6, 2024)
ADDENDUM TO MY PRECEDING POST:The following is Justia’s very basic summary (https://supreme.justia.com/cases/fede...) of the majority opinion:
The case involves former President Donald Trump, who was indicted on four counts for conduct that occurred during his presidency following the November 2020 election. The indictment alleged that Trump conspired to overturn the election by spreading knowingly false claims of election fraud. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within his official responsibilities. The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D.C. Circuit affirmed this decision.See also the July 2, 2024 Politico article titled “The terrifying SEAL Team 6 scenario lurking in the Supreme Court’s immunity ruling” (https://www.politico.com/news/2024/07...) and the July 2, 2024 Washington Post article titled “What is an ‘official’ act, and how will a judge interpret Trump’s immunity?” (https://wapo.st/3RV9tcC; as a result of my Washington Post subscription, the foregoing link can be accessed without charge for fourteen days, notwithstanding the usual Washington Post paywall).
The Supreme Court of the United States held that under the constitutional structure of separated powers, a former President is entitled to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. He is also entitled to at least presumptive immunity from prosecution for all his official acts. However, there is no immunity for unofficial acts. The Court vacated the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The Court emphasized that the President is not above the law, but under the system of separated powers, the President may not be prosecuted for exercising his core constitutional powers.
(edited July 5, 2024)
August 11, 2024 Note:
See this August 9, 2024 Politico article titled “What the Supreme Court left unsaid about Trump’s criminal immunity”: https://www.politico.com/news/2024/08....
Fischer v. United States, U.S. Supreme Court, June 28, 2024Addendum to posts 28 (February 19, 2024) and 33 (April 22, 2024), above
Although Donald J. Trump is not a party in this case, the Court’s June 28, 2024 decision (https://www.supremecourt.gov/opinions...) in Fischer has some bearing on Trump’s federal case involving the 2020 election, because the indictments in both cases included alleged violations of 18 U.S.C. § 1512(c)(2).
On June 28, 2024, the U.S. Supreme Court issued its decision in this case. The opinion of the Court was written by Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Jackson wrote a concurring opinion. Justice Amy Coney Barrett wrote the dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan.
Justia (https://supreme.justia.com/cases/fede...) summarizes the majority opinion in this case as follows:
The case revolves around the interpretation of the Sarbanes-Oxley Act of 2002, specifically 18 U.S.C. §1512(c)(2), which imposes criminal liability on anyone who corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so. The petitioner, Joseph Fischer, was charged with violating this provision for his actions during the Capitol breach on January 6, 2021. Fischer moved to dismiss the charge, arguing that the provision only criminalizes attempts to impair the availability or integrity of evidence. The District Court granted his motion, but a divided panel of the D.C. Circuit reversed and remanded for further proceedings.It is notable that Justice Ketanji Brown Jackson, who usually sides with the “liberal” justices (Sonia Sotomayor and Elena Kagan), concurred in the majority opinion of the “conservative” justices and that Justice Amy Coney Barrett, who normally votes with the conservative justices, wrote the dissenting opinion, joined by Justices Sonia Sotomayor and Kagan.
The Supreme Court of the United States held that to prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so. The Court reasoned that the "otherwise" provision of §1512(c)(2) is limited by the list of specific criminal violations that precede it in (c)(1). The Court also considered the broader context of §1512 in the criminal code and found that an unbounded interpretation of subsection (c)(2) would render superfluous the careful delineation of different types of obstructive conduct in §1512 itself. The Court vacated the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion.
The issues between the majority and dissenting opinions involved complicated questions of statutory interpretation.
Justice Jackson’s concurring opinion noted (slip opinion, p. 8) that “it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding” in ways that would trigger 18 U.S.C. §1512(c)(2), the statutory provision at issue in this case—a question that the District Court can consider on remand. As other commentators have observed, it may be that the prosecution of Trump under §1512(c)(2) could also survive this decision for similar reasons, e.g., his alleged acts in connection with attempts to get so-called fake electors to file false documents in connection with the January 6, 2021 proceeding of Congress to determine the votes in the Electoral College for president and vice president.
July 20, 2024 Note:
See the July 18, 2024 article “Prosecutors dropping some Jan. 6 obstruction charges after Supreme Court ruling” at https://www.msn.com/en-us/news/politi....
Is the Supreme Court’s Immunity Decision Consistent with the Conservative Justices’ Theory of Originalism?”: Addendum to posts 39–40 (July 4, 2024) The title of conservative columnist David French’s July 7, 2024 column in the New York Times (https://www.nytimes.com/2024/07/07/op...) is “What Happened to the Originalism of the Originalists?” French argues that the March 4, 2024 U.S. Supreme Court decision in Trump v. Anderson, which rejected state governmental attempts to enforce section 3 of the Fourteenth Amendment (see posts 1154–55 here), as well as the Court’s July 1, 2024 immunity decision are inconsistent with the originalist doctrine promoted by the conservative justices on the Supreme Court. (In accordance with my New York Times subscription, the foregoing New York Times link provides access to this article for 30 days without charge, notwithstanding the usual New York Times paywall.)
Excerpts:
When I read the majority opinion on Monday [July 1, 2024] in Trump v. United States, which held that presidents enjoy absolute immunity for official acts within their “conclusive and preclusive” constitutional authority and presumptive immunity for all other official acts, I was genuinely and sincerely confused. The Supreme Court’s opinion is difficult to decipher, and in many important ways it is not originalist. . . .
Given this history, however, one would have expected a narrower immunity ruling in Trump v. United States and a narrower ruling in Trump v. Anderson. Instead, the conservative majority created a barrier to prosecuting presidents for even the most blatantly corrupt official acts and blocked any enforcement of Section 3 against candidates for federal office in the absence of congressional action.
In reading both decisions, I’m struck by the way the court’s conservative majority (with the partial and notable exception of Amy Coney Barrett) ultimately made a series of policy choices more than it engaged in the kind of close textual analysis that should be the hallmark of originalism. The court’s policy choices are rooted in real concerns, but they’re not textual, they should not be constitutional, and they contradict the wiser judgment of the founders in key ways. . . .
. . . [T]he court’s immunity ruling both adds to the Constitution and deviates from its text. You can read the entire document [the Constitution] from cover to cover and not find a single reference to presidential immunity, and it’s not as if the founders were unfamiliar with the concept.
This is entirely consistent with a constitutional structure that is comprehensively anti-monarchical. The founders could have made the president more powerful and less accountable, but they chose the opposite course — and for good reason. They had fresh experience with the terrible consequences of consolidating power in the hands of one person.
Consequently, to the extent that the Constitution speaks at all to presidential criminal liability, it leaves the door wide open. The impeachment judgments clause limits the reach of an impeachment conviction to removal from office and disqualification from future federal office (in other words, impeachment convictions do not function like criminal convictions), but the clause also states, “the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”
The court’s ruling alters that clause — essentially changing the word “shall” to “may.” Even a party convicted after impeachment can still be absolutely immune from prosecution if he was acting while carrying out a “core constitutional power.” Even when the president’s official actions aren’t “core,” they’re still presumptively immune, presenting a high bar for prosecuting any official act. . . .
I disagree with the Supreme Court’s rulings for the most basic reason of all — they do not square with the text of the document the justices are supposed to interpret, and that means they’re granting the presidency a degree of autonomy and impunity that’s contrary to the structure and spirit of American government. In both Trump cases, the liberal minority was more originalist than the conservative majority. This time, it was the conservatives who created a living constitution.
DISTRICT JUDGE AILEEN CANNON DISMISSES INDICTMENT IN THE CLASSIFIED DOCUMENTS CASEToday (July 15, 2024), U.S. District Court Judge Aileen M. Cannon dismissed the indictment against former president Donald J. Trump in the classified documents case pending in the U.S. District Court for the Southern District of Florida. Her 93-page opinion and order can be accessed at https://storage.courtlistener.com/rec....
Judge Cannon dismissed the case on her theory that Jack Smith, the prosecutor, was not lawfully appointed as special counsel. For a Politico article on this development, see https://www.politico.com/news/2024/07....
AUGUST 27, 2024 SUPERSEDING INDICTMENT IN THE FEDERAL CASE AGAINST TRUMP REGARDING HIS ALLEGED ACTIONS TO OVERTURN THE 2020 ELECTIONADDENDUM TO POST 6 (AUGUST 3, 2024) AND LATER POSTS REGARDING THIS CASE:
On August 27, 2024, Special Counsel Jack Smith filed a superseding indictment of a grand jury against Donald J. Trump in this case. This superseding indictment can be accessed at https://www.politico.com/f/?id=000001.... The Government’s Notice of Superseding Indictment (https://storage.courtlistener.com/rec...), also filed August 27, 2024, explains the scope and rationale of the superseding indictment as follows:
Today, a federal grand jury in the District of Columbia returned a superseding indictment, ECF No. 226, charging the defendant with the same criminal offenses that were charged in the original indictment. The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States, 144 S. Ct. 2312 (2024). The Government does not oppose waiver of the defendant’s appearance for arraignment on the superseding indictment. See Fed. R. Crim. P. 10(b). As this Court directed, ECF No. 197, the Government will confer with the defense and make a joint proposal, to the extent possible, regarding pretrial litigation in the status report due Friday [August 30, 2024].For further information and background about this superseding indictment, see this August 27, 2024 Politico article: https://www.politico.com/news/2024/08.... See also this August 27, 2024 New York Times article: https://www.nytimes.com/2024/08/27/us.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
USA vs. Donald J. Trump (election interference case): August 30, 2024 Joint Status ReportThe parties’ Joint Status Report (https://storage.courtlistener.com/rec...) was filed in the U.S. District Court for the District of Columbia on August 30, 2024. The parties agreed on little. The Government left it up to the District Court to determine the schedule. The defense proposed dates for motions and trial that go well beyond the November 6, 2024 presidential election and the January 20, 2025 inauguration of the new president. If defendant Trump wins that election and becomes president on January 20, 2025, he is likely to order the U.S. Department of Justice to withdraw this case as well as the classified documents case (see post 43 [July 15, 2024], above). Alternatively, he might attempt to pardon himself with regard to these cases. If Trump loses the election, these cases will continue. There is no possibility that they will be decided before the November election.
For further analysis and background, see the following media accounts: this August 31, Politico article: https://www.politico.com/news/2024/08... and this August 31, 2024 New York Times article: https://www.nytimes.com/2024/08/31/us.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
The Sentencing Delay in the New York “Hush Money”/Election Interference CaseSee this September 6, 2024 guest opinion by Jonathan Alter titled “Delaying Trump’s Sentence May Mean a Stiffer Penalty if He Loses”: https://www.nytimes.com/live/2024/09/.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for thirty days, notwithstanding the usual New York Times paywall.)
“GOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONS” IN FEDERAL CASE REGARDING TRUMP’S ALLEGED ATTEMPTS TO OVERTURN THE 2020 PRESIDENTIAL ELECTIONUS Special Counsel Jack Smith filed today (October 12, 2024) the unsealed and redacted Government’s Motion for Immunity Determinations in the federal case regarding the alleged attempts of former president Donald J. Trump to overturn the 2020 presidential election. This 165-page motion, as filed, can be accessed at https://s3.documentcloud.org/document.... A brief summary of its arguments can be located at https://www.nytimes.com/2024/10/02/us... (gift article).
ADDENDUM TO MY PRECEDING POST:On October 10, 2024, U.S. District Judge Tanya S. Chutkan ordered the release of a four-part appendix — with potentially significant redactions — listing the sources of quotes and information to the Government’s Motion for Immunity Determinations, which detailed how the case could go forward after the Supreme Court ruled this summer that Trump enjoyed broad immunity. For details, see https://www.msn.com/en-us/news/politi....
TRUMP PROSECUTION DELAYS AND STATUSSee this November 7, 2024 Politico article titled “Trump Dodged the Law. Here’s Who to Blame”: https://www.politico.com/news/magazin....
DISMISSAL OF FEDERAL PROSECUTIONS AGAINST TRUMPOn Nov. 25, 2024, the US Government filed an unopposed motion to dismiss Case No. 23-cr-257 without prejudice in the US District Court for the District of Columbia (https://storage.courtlistener.com/rec...). This is the federal prosecution against Trump for interference with the 2020-21 election. The District Court granted the motion the same day.
On Nov. 25, 2024, the US Government filed an unopposed motion to dismiss Trump from the appeal (Case No. 24-12311) pending in the 11th Circuit Court of Appeals, which would leave the District Court judgment of dismissal without prejudice in place (https://storage.courtlistener.com/rec...). This is the classified documents case. As of now, the 11th Circuit has not ruled on the motion.
The above-linked motions explain why the government is seeking to dismiss these prosecutions without prejudice at this time. The significance of the “without prejudice” language is that these prosecutions against Trump could be reinstated after he is no longer president. If any of the counts of the indictments against Trump would be otherwise barred at that time due to statutes of limitations (I have not had time to research this), the government might argue that the doctrine of equitable tolling (https://definitions.uslegal.com/e/equ...) would prevent the running of these statutes during Trump’s second term of office. Thus, Trump is not necessarily permanently off the hook unless he purports to pardon himself and such pardon is recognized as valid by the federal courts or unless the Justice Department as constituted after the Trump presidency decides not to reinstate these prosecutions.
This topic is about criminal prosecutions that name Donald J. Trump as a defendant. For civil litigation naming Trump as a defendant, see the Civil Litigation against Trump topic.
This topic addresses the various prosecutions, current or future, against Donald J. Trump, who, of course, was president of the United States from January 20, 2016 to January 20, 2021, and who has announced that he is running again for president in the 2024 election.
There are, and will be, a multitude of media stories—left, right, and center—about these prosecutions. This topic is intended to stick to the pleadings, evidence, judicial orders, judgments, and appeals in the various cases. I request that posters not engage in opinion wars for and against Trump in this topic. If that proves impossible, I will delete the topic.
Posts not complying with the foregoing directive will be deleted without further explanation.
Alan E. Johnson
Founding Moderator of “Political Philosophy and Ethics” Goodreads group
APRIL 22, 2024 NOTE:
This topic also includes the following case accepted by the U.S. Supreme Court: Joseph W. Fischer v. United States, U.S. Supreme Court Case No. 23-5572. Donald J. Trump is not a defendant in this case, but it has implications for Trump’s defense in the federal prosecution of him regarding his attempts to overturn the 2020 election results (see https://www.goodreads.com/topic/show/...).