The Lawfare Podcast, Trump’s Trials and Tribulations: Still Waiting on the D.C. Circuit

[Introduction]

Quinta Jurecic: We also saw, I think it's fair to say, Habba stumbling a bit during trial and sort of tangling with the judge over the procedures for impeaching a witness and putting forward evidence and all kinds of things that you'd really hope counsel for a former and perhaps future president would have on lock. So I think it's, as with the New York civil trial, sort of an example of plenty of shenanigans going on.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast, January 20, 2024. It's another episode of Trump's Trials and Tribulations, recorded on January 18, in front of a live audience on YouTube and Zoom.

Joining me in the virtual jungle studio were Quinta Jurecic, Anna Bower was missing, but Roger Parloff was there. And we discussed where the Section 3 disqualification litigation stands all across the country and at the Supreme Court. We talked about some amicus briefs. We talked about lack of action from the D.C. Circuit Court of Appeals on Trump's presidential immunity defense. We talked about a puzzling statement from a few D.C. Circuit judges on a different D.C. Circuit matter involving Twitter and executive privilege. We talked about what Judge Cannon is up to in Florida.

And of course, we took audience questions from our material supporters of Zoom. To submit such questions yourself, you should become a material supporter, lawfaremedia.org/support. It's the Lawfare Podcast, January 20, Trump's Trials and Tribulations: Still Waiting on the D.C. Circuit.

[Main Podcast]

So let's start with Section 3 of the 14th Amendment, because, you know, it's all anyone's talking about these days. Roger, we have briefs due today. Have any of them been filed? Do we, has anybody had anything to say?

Roger Parloff: I don't think we have Trump's brief yet. We have a lot of amicus briefs. The briefs that are due, the amicus briefs are due, are the ones that are either supporting Trump or are supporting neither party, which means they're clarifying some point of law. And the ones that are supporting the voter challengers will come in, another I think January 31. Does, does anyone know that I'm wrong? January 31, yes. And then the replies will be February 5, and then the argument is February 8.

Benjamin Wittes: And it occurred to me this morning when I was talking to Charlie Sykes on the Bulwark podcast that if I were the Supreme Court, I would really want to hear from the Solicitor General on this. Have they asked for the views of the Solicitor General and are we expecting an SG's office brief?

Roger Parloff: I have not seen a request like that on the docket. The docket I have is not always complete. Have you seen anything like that Quinta?

Quinta Jurecic: I have not for what it's worth, nor have I seen any conversation around that. I know Jack Goldsmith speculated on Twitter about whether or not Special Counsel Jack Smith would want to weigh in. I haven't seen any indication of that either. It's not clear to me why, I thought I would want to stay as far away from this as possible.

Benjamin Wittes: Yeah, exactly. It's true. Although if I were the solicitor general, I mean, this is a matter that obviously affects the executive branch very deeply. And it would seem like the solicitor general might well have things to say on the subject.

Roger Parloff: Oh, the Solicitor General? Yes, I thought you said special counsel though.

Benjamin Wittes: Oh, I, certainly meant the solicitor general. If I, if

Roger Parloff: Okay.

Benjamin Wittes: But there's no, there's no indication of a request for the views of the SG?

Roger Parloff: No.

Benjamin Wittes: Alright.

Quinta Jurecic: They have everyone else's views.

Benjamin Wittes: Yeah. So, I, I think it would be odd for the SG not to weigh in on a matter that bears on who gets to be president and what the meaning of a core provision of the 14th Amendment is.

Roger Parloff: We might, might want to mention while we're on Section 3 that we got a ruling from Maine yesterday.

Benjamin Wittes: Oh yes, so tell us about Maine.

Roger Parloff: Yeah, they have a fast track system there. You remember the secretary of state, they have an administrative proceeding that begins before her, and she had determined that after a hearing that Trump was disqualified. She followed the reasoning a lot of the Colorado court.

And so, by yesterday, this, a superior court, appeal to a superior court, had to, the superior court had to rule by state law. And Justice Michaela Murphy of Kennebec County, they call their superior court judges justices, she remanded to the secretary of state with instructions to reconsider after the Supreme Court rules. Basically, she wanted to just stay the case herself and wait till the Court ruled, but she felt Maine law didn't permit that, but it permitted her to do this. She did not vacate the ruling. So the, the ruling sort of still exists out there, the disqualification by Bellows is her name, I think Shenna Bellows, but it's, it's apparently stayed. Now, under Maine law, this was supposed to then go to their Supreme Court by January 31, and they were then supposed to rule. I assume, I, I don't know if the voter challengers are going to try to appeal to the stay, the remand ruling to the Supreme Court, I sort of doubt it.

I think we're beginning to get what looks like a little bit of consensus that people are going to wait until the Supreme Court weighs in. And that's what the Oregon Supreme Court also did.

Benjamin Wittes: Yeah, so I, I would think that the posture of Maine now is about as clear as it is going to be, which is pending the Supreme Court, which is if the Supreme Court affirms Colorado, he will be off the ballot in Maine as well. And if-

Roger Parloff: Well, it doesn't say that.

Benjamin Wittes: No, but, but I mean, if you combine the, the secretary of state's judgment with an affirmance in Colorado-

Roger Parlof: Oh yes, I see. Yes. Yeah, Yeah.

Benjamin Wittes: -it would be very hard for the Maine court system to say, no, but it, that logic doesn't work here.

Roger Parloff: No, you’re quite right.

Benjamin Wittes: But there's no point in trying to preempt the Supreme Court on, on this. So, it sort of goes into abeyance until we hear from five justices. It seems to me to make a lot of sense, although it does seem to defy the statutory deadlines in main law.

Roger Parloff: That's, that's right. But she, she said there's all these federal constitutional questions of first impression and, and it, it would be imprudent for her to weigh in when we're about to get some sort, we're likely to get some sort of definitive answer to some of those questions.

Benjamin Wittes: So, all right. Any other Section 3 action?

Roger Parloff: Yeah and I mean, theoretically, you know, there's this administrative proceeding in Massachusetts. There's, we're supposed to get a ruling on January 29. There's an administrative proceeding in Illinois. We're supposed to get a ruling on January 30. I'm sure there are others out there. Those are the ones that I know have firm, seemingly firm deadlines. I don't know if those are stayable or not in light of the SCOTUS, the Supreme Court. Yeah.

Benjamin Wittes: And so is, is your impression that they will all just back up waiting for the Supreme Court? Or do you think some of them are going to be like, well, we, we've got to decide this and the Supreme Court will do whatever it does, but we're in the meantime, we're going to keep him on the ballot or throw him off the ballot or—how is it like to work, likely to work procedurally?

Roger Parloff: I think if they have the wiggle room to stay it until the Supreme Court rules, that's what they'll do. Some may feel that they just don't have that wiggle room under state law. In addition, just imagine, you know, if you, if I assigned you the problem of, write a ruling on this question, which has umpteen parts to it, and do it by January 31st wouldn't you rather say, let's hear from the Court first.

Benjamin Wittes: Right, let's see how much work we can get the Supreme Court, how much of my work we can get the U.S. Supreme Court to do.

Roger Parloff: Because this might vanish after that. Right.

Quinta Jurecic: I say this is consistent with my hot potato theory of Trump, which is that every institution that has the chance to deal with him desperately wants to fob the issue off on everyone else. And here I think various state officials and courts have an extremely good reason to just kick it to the Supremes and see what they do.

Benjamin Wittes: Well, especially because the Supreme Court is actually the controlling authority.

Quinta Jurecic: No, it's a very good reason. I think sometimes people toss the hot potato with very little reason, but here there's, I mean, it is literally their job to, to decide this.

Benjamin Wittes: All right, so, speaking of courts who it is literally their job to decide things, it is literally the job of the D.C. Circuit Court of Appeals to have already decided because we said by the end of the week, last week, and we said 48 hours, I think I personally said 48 hours. And the D.C. Circuit has no business proving us wrong but it seems to have. So, Roger, Quinta, what do we know about what's going on?

Roger Parloff: Oh, we know nothing but that won't stop us. It never has. So, my theory is that Judge Karen LeCraft Henderson is writing a long and irrelevant and baffling concurrence, and that that's holding things up.

Benjamin Wittes: Quinta ‘LeCraft’ Jurecic, do you have a theory?

Quinta Jurecic: I think that's as good a guess as any. I think I also predicted 48 hours, so I will also eat my, my crow. But yes, I mean, look, we, we don't know. They've been quiet. We'll find out.

Benjamin Wittes: All right. There is a subject, however, about which the D.C. Circuit has not been quiet, speaking of baffling quasi concurrences. It involves executive privilege. I confess, I had a little bit of a hard time making head or tail of this matter that involves Twitter, Trump, and lower court Judge Beryl Howell, who was chief judge at the time. Quinta, what do we know?

Quinta Jurecic: So this is a little bit of a strange one. So I will open just by explaining what specifically we're talking about, and then I'm gonna rewind because it, it, as you just hinted, Ben, requires a fair amount of context.

So what we got was a ruling from the D.C. Circuit on January 16 that was a denial of Twitter's petition for rehearing en banc of a ruling that came down from a panel of the D.C. Circuit over the summer concerning a appeal, again, by Twitter, of a contempt order from the district court, in this case from Judge Beryl Howell, then acting as Chief Judge.

We're talking about, so a denial from a petition for rehearing en banc at the D.C. Circuit is nothing new. The D.C. Circuit does not like to hear things, rehear things en banc. But this particular one is interesting because there is a, not a, not a dissent from the denial of rehearing, not a concurrence from the denial of rehearing, but a, a statement which is something that I have never seen before from the three Trump appointees on the court, Judge Naomi Rao, Greg Katsas and Justin Walker, along with one Judge Karen LeCraft Henderson. The statement is written by Judge Rao, sort of objecting, maybe, to how the courts have handled what they believe is an executive privilege issue that has to do with this case.

So now that I've said that out, let me back up and sort of record scratch for you so I can move backward in time and then I'll, I'll explain what this is about and why it may or may not matter.

So all this traces back to some litigation that listeners may recall from over last spring and summer that has to do with a warrant sent by Special Counsel Jack Smith to Twitter, then under the control of Elon Musk, which is relevant, for material relating to Trump's Twitter account in the course of the January 6th election investigation. Twitter resisted handing over that information. It seems like there was a, perhaps some confusion in terms of communication between the government and Twitter over it, which I think probably traces back to the fact that Twitter's legal department was pretty substantially hollowed out after Musk's takeover.

All of this back and forth, resulted in a court hearing in February. So sorry I've gotten the timing a little wrong, but last, last winter, a court hearing where the Twitter and the special counsel hashed out before Judge Howell Twitter's objections to this warrant Twitter agreed to hand over some material, then it failed to hand over the material by the deadline that Judge Howell had set, and because she had also gotten both parties to agree to a structure of fines for non compliance that increased geometrically, Twitter's delay in handing over that material ended up landing them with a fine of $350,000.

So all of that is the background. The appeal has to do with, so Twitter was essentially appealing this contempt fine along with some other aspects of how Judge Howell handled the case. The D.C. Circuit dealt with that over the summer, and now we have this appeal for re-hearing en banc that was denied.

What does any of this have to do with executive privilege and why are we talking about it?

Great question. So one of Twitter's arguments before Judge Howell initially was that they didn't want to hand over the material because they could see that there were DMs in the account, direct messages in the account that had been sent either to or from President Trump and that they believed that there might be executive privilege interests in those DMs given that he was president when they were sent or received. They, they weren't, they hadn't looked at them. They're just sort of, the data is such that they know that they exist. We have no information about what may be in them.

Judge Howell, we now know because of a transcript of the proceedings that was unsealed, was not particularly impressed by this, didn't take it particularly seriously and ruled that Twitter had to hand over the materials anyway. This gets us to the situation with the fine.

When Twitter appealed Judge Howell's ruling on contempt and other sort of procedural matters, the, the D.C. Circuit panel in a ruling by Judge Florence Pan whose name may be familiar by now, didn't really address the executive privilege issue. It comes up, but it's kind of nested within another issue, which is that Twitter is arguing that it has a First Amendment right to be able to disclose to President Trump that this information is being sought, given that one of the measures that Judge Howell implemented was a non-disclosure order, essentially to prevent the investigation from being interfered with. So, the D.C. Circuit and Judge Pan's ruling essentially upholds everything that Howell does, does not touch substantively this executive privilege issue because it's focused on the, sort of, broader First Amendment question of whether Twitter has a First Amendment right, and it says it does not.

This brings us then to the denial for the petition of, for hearing en banc and the statement by Judge Rao. So essentially Rao is zeroing in on this kind of subsidiary argument that has been made by Twitter throughout about whether there is potential for executive privilege implications of handing over these DMs that were in Trump's account.

And what she argues is essentially, is not necessarily that, that Trump should have triumphed in invoking the privilege, but that he should have been given an opportunity to invoke it before this material was handed over. There are some weird aspects to this. So, for example, we know from previous court filings that the material that Twitter eventually did hand over included 32 direct messages.

Judge Rao refers to these as messages from Trump, so messages sent by Trump. With apologies to Judge Rao, I don't see how that can be right. There is no indication elsewhere in any of the reporting or any of the other court filings that these were messages sent by Trump. And because she's saying all of those, we know there are only 32 messages, she says all of those 32 were from him. So in this, in her version of events, Trump is only sending DMs. He's not receiving anything. That just strikes me as a bit odd.

Benjamin Wittes: Not really the way people use DMs.

Quinta Jurecic: Exactly. And I think it, that kind of inflects her understanding of the potential privilege implications because I looked at what Special Counsel Smith had said about the 32 DMs and thought, you know, these could be anyone, right? It could be spam. We don't even know if Trump read them. So, all of this, it's, it's very odd. I've been talking for a while, we can talk more about how it is that the President even could have privilege in communication sent on a public platform. It's, it's a bit fuzzy but that's essentially what, what Judge Rao and her three colleagues are saying.

Benjamin Wittes: Just to be clear, it is not fashioned as a dissent.

Quitna Jurecic: No, it is a statement.

Benjamin Wittes: It is not fashioned as a concurrence.

Quinta Jurecic: Correct.

Benjamin Wittes: Is it clear how the four of them voted? In the, on the question before them, which was whether to grant rehearing en banc?

Quinta Jurecic: No. We, we just have that they have this statement, and it's just, it's not really obvious what is going on here.

Roger Parloff: Is one of the issues that Trump himself, even when he became aware of this situation, never asserted executive privilege?

Quinta Jurecic: So that's correct. So that's part of what's strange about all of this, is that so partly what is, what we're, what we know is that there is an initial decision on the part of Judge Howell to not disclose the fact that this information is being sought.

And Judge Rao seems to think that there should have been some process by which to kind of flag to Trump or perhaps his representative or something along those lines to kind of give him an opportunity to weigh in. That said, even after this information did become public, that all this had happened, at no point did Trump seek to intervene.

Benjamin Wittes: I would say when the court does something per curiam, which means as the court,

Quinta Jurecic: And this is a per curiam ruling, to be fair.

Benjamin Wittes: And you don't dissent, then you are presumptively represented by the per curiam. And so, I guess the question that puzzled me about this is, if we are to assume they are not dissenting, because it is not crafted as a dissent, and they are therefore represented by the per curiam, why is it not a concurrence which, I don’t,

Quinta Jurecic: I don't have an answer for you.

Benjamin Wittes: It's a very, I mean, it's just strangely postured, and some of the people involved in it are very eccentric, but some of them, like Judge Katsas, are not very conservative, but, but a, a quite normal judge's judge kind of guy, so I'm a little bit just befuddled by how to read it. Roger, do you have thoughts?

Roger Parloff: I don't really. I'm, I'm just puzzled by it.

Benjamin Wittes: All right. We will leave ourselves in a state of puzzlement on this matter and move to the next puzzling feature and creature, which is Judge Aileen Cannon, who has done a few puzzling things and been asked to do a few more. Roger, why don't you bring us up to speed on the antics in South Florida?

Roger Parloff: Yeah, a number of things have been going on. We're still laboring over this CIPA Section 4 stage.

Benjamin Wittes: And remind us what that is.

Roger Parloff: Yeah. So, you know, initially the government was willing to provide about 5,500 pages of classified, not provide, but to make available, you know, they don't turn over the classified information, but make available 5,500 pages.

That was mainly the, the documents in the 32 counts that Trump is charged with for willfully withholding. They were going to make that available to Trump and to the lawyers for Nauta and De Oliveira, and there were objections of different kinds. And then she on her own, Judge Cannon decided that she couldn't even say yes at that stage.

She had to wait until Section 4, the Section 4 stage. The Section 4 stage is when after the government has conceded that certain things should be made available, it, it, it wants to make some additional discovery available, but those documents only in part because there's ultra-sensitive stuff that nobody needs to know.

So they want it to be redacted or they want substitutions. They want the, the defendants to be told summaries of what's involved. And normally that stage proceeds ex parte. That is, the government tells the judge in a sealed proceeding with only the government present what it wants to do.

And then at the same time the defendant tells the judge, likewise, in a sealed ex parte proceeding, what its defenses are. And then the judge tries to make a judgment about whether these redactions will be fair, given what the defenses are. Now, for some perspective, originally, Judge Cannon wanted the government's motion, CIPA Section 4 motion, to be filed on October 10, and it wanted Trump's reply to be filed the same day, October 10.

They're two ex parte motions, why not? And then a week later, she would hold a hearing if necessary, October 17. Instead, nothing has gotten decided, today still. And the reason is Trump wants to have an adversarial proceeding. They want to see in certain ways, the SIPA Section 4 motion and want to be able to contribute and argue about it.

They don't say that, you know, they don't say Trump gets to see the motion, but Trump's cleared counsel get to see the motion, things like this. She's, that's been fully briefed. Incidentally, the same thing was argued in Chutkan's case. And she said, nope, the statute says ex parte. That's it. She said she ruled recently that she wanted a, an ex parte hearing January 31 to discuss this with the government.

And she's still postponing deciding the, and she's going to put off deciding the, whether this will be an adversary proceeding with whether, the Trump will get to see any of CIPA Section 4 until a two day hearing scheduled in February, February 12 and 13. Meanwhile, she had Trump file his objections to CIPA Section 4, which he did on, yesterday.

And I don't know how he filed objections without seeing the motion but that was done under seal and it puzzled Judge Cannon, who's, who then issued an order saying, did you really mean it's under seal, but it's not ex parte. Did you really mean that it's not ex parte? And Trump said, yes, it's not ex parte, because we still haven't told you yet what our defenses are.

We want to set up a meeting, ex parte meeting later to tell you what our defenses are. Anyway, the thing is limping along at, at very slowly. We, we won't even have a decision on whether this is ex parte or adversarial until sometime after February 12 and February 13. So, that's where that stands.

Benjamin Wittes: And then, wasn't there also, there's a Trump motion to compel all kinds of discovery?

Roger Parloff: Yes, yes.

Benjamin Wittes: What, what's the story with that?

Roger Parloff: That's an important thing that happened two days ago. Sort of like the D.C. case again, he wants to define the prosecution team very, very broadly so that an enormous amount of additional discovery has to be turned over. He wants the, and again, Chutkan rejected this very quickly, but we'll have to see how Judge Cannon sees it, members of the prosecution team, as Trump sees it, to include the National Archives and Records Administration.

Benjamin Wittes: That famous prosecutorial office.

Roger Parloff: The CIA, the Defense Department, the National Security Agency, and National Geospatial Intelligence Agency, the National Reconnaissance Office, the Department of Energy, the State Department. In the White House: the National Security Council, the White House Counsel's Office, the White House Office of Records Management. In the DOJ: the Office of Legal Counsel, Office of Attorney General, Office of Deputy Attorney General, National Security Division, and, and the U.S. Attorney's Office for the Southern District of Florida, the Special Counsel's Office pertaining to the D.C. case, the Secret Service, the Department of Energy. So there, there's a lot there. In addition, to give the categories of information they're looking for, and, and, and almost all of this relates to theories that there is political bias everywhere, political bias in NARA, political bias-

That the Biden administration has been and, and political, been colluding with all of these agencies against Trump. And so any communications with members, relatives, or associates of the Biden administration, communications between members of the Biden administration, and the Fulton County district attorney's office, including particularly records relating to meetings involving Nathan Wade, who is now mentioned at least three or four times in the motion.

Nathan Wade is now a pressure point, and he is going to use that evidence relating to analytic bias harbored by the intelligence committee and, and so on and so forth. There's also, he wants to explore political bias at the intelligence community going back to the 2019 whistleblower complaint relating to his call to Volodymyr Zelensky. He thinks that's relevant to this case. He wants to go into misuse of the D.C. grand jury forcing Evan Corcoran, his attorney, to testify. Also, there's a lot of this motion is redacted, but so I can't tell exactly what portions of it are about, but some of it has to do with the way Stanley Woodward was treated before the D.C. grand jury. He also wants to have this motion entirely unredacted. So it's clear that you know, there's a lot of-

Benjamin Wittes: Public communications is a big part of the purpose here.

But let me ask you, I, one of the things that I couldn't tell, and I haven't read the motion, only the press accounts about it, but one of the things I was curious about is whether the purpose here is actually to create a defense based on some wide Biden administration conspiracy that dates back to the dawn of time in 2019 to, you know, deep state Biden to frame Trump, or whether the goal is here simply to give her an opportunity to order a kind of impossible discovery against a wide range of agencies that, you know, maybe it'll turn something up that is like, you know, Hillary Clinton's email server, or maybe it won't. But what it'll certainly do is it'll turn the agencies in knots and eat up a lot of time and thereby raise the cost to the executive branch of litigating the case. Is, is this a either one or the other, or is it both kind of thing?

Roger Parloff: I think it is both. It would run out the clock if you know, if, if Trump is gonna, it, it, it, it, it's, it's delay. There's also an investigate the investigators strategy, a sort of a Durham investigation sort of thing, which will benefit both his campaign, and possibly his defense if he's allowed to bring in, you know, to, to make this claim that, that this is all about the Biden administration trying to keep him from becoming president. I think it's all of those things.

Benjamin Wittes: So, unlike a CIPA ruling by her that's really crazy, there's no obvious interlocutory appeal if she orders some sort of deranged discovery along these lines. I suppose they could try to mandamus her, or they could try to comply, right?

Roger Parloff: I think that that's right. Mandamus is of course very difficult. So it would have to be really outrageous. It could be outrageous, so we'll have to see.

Benjamin Wittes: I gotta say, I think it's a smart move for the Trump lawyers. It gives her an opportunity to be very helpful in a faction that's paralytic vis-a-vis the government. It's good public communications that plays well on Fox News and allows them to, it's sort of consistent with their campaign themes. You know, who knows, maybe you get some discovery that's actually interesting.

Roger Parloff: Yeah, it's a very worrisome motion from the perspective of those who would like to see this tried in our lifetimes.

Benjamin Wittes: All right, speaking of Nathan Wade, and I may take some of this myself, do either of you, so we, we are down one Anna Bower, which is to say our, our major Fulton County expertise, but I think between the three of us we can, we can handle this.

So, Fani Willis, over the weekend responded sort of to the motion about her supposed conflict of interest. She took to the pulpit of her church and announced, I don't think I'm mischaracterizing this, that while she was certainly flawed, people were out to get her. She also, her office also made clear that they would be filing a response to the motion concerning Mr. Wade, but not until February 2, which seems like a terribly long time to take to respond to a motion that raises a question of your office's integrity. And yes, and as somebody pointed out in the as Joyce points out in the chat, attributed at least some of the action allegations to racism.

So I think we can begin now to address at least in, in in very tentative terms, some of these allegations, if not, we don't have a clear statement of her position regarding what is true, but she rather conspicuously didn't deny the entire gravamen of the thing. And so, Roger, what do you make of it? Is, is there anything responsible that we can say at this point?

Roger Parloff: I think so. First, just a little more information. Today, Judge McAfee, Scott McAfee ordered a hearing on this question February 15 at 9:30. And he said that Willis must reply by February 2. That date is important because on January 31, there is a hearing in Nathan Wade's divorce case over whether to unseal it.

So it might well be that Fani Willis, this is speculation, may have wanted to see what was being released before filing the motion. This motion was filed back on January 8, it's by Mike Roman's attorney, Ashley Merchant. I guess, Anna described it last week. Also, incidentally, if you want to hear that what, what Fani Willis said at the church, Anna did a, a nice little thread about the gist of it on her Twitter and Thread feeds, where I think her, her handle is “@AnnaBower” for both, I think. But the gist of it is, he was, Nathan Wade was hired as a special prosecutor, according to the motion. His, his first contract was signed November 1 of 2021. On November 2, 2021, the next day, he filed for divorce. And the gravamen of the complaint is that a, they are having a romantic personal relationship.

And it implies, it's a 39 page motion. And then there's about a hundred pages of documentation from Open Records Act stuff. But Ashley Merchant, the lawyer, says that part of what her motion is based on, this sealed divorce file, which she was allowed to see, before she realized it was sealed. So those records are not available. So we don't know if there is a personal romantic relationship. That's sort of a, only a tiny aspect of this. The, the accusation is that he's being paid very well, Nathan Wade. That he's, I think, $250 an hour. And that, effectively, he's making more than most of the regular prosecutors in the office.

There are two other special prosecutors appointed by Fani, and I don't know how they're being paid, but because of their relationship, the claim is that she is benefiting from some of that money, in effect, because they're a couple. It makes allegations that they've traveled together to Napa Valley, California, to Florida, to the Caribbean.

It alleges without proof, without proof at this stage, that he bought tickets for them to go on the Norwegian and Caribbean cruise lines. So, the idea is why would this matter? And I, I think the theory, a couple of theories of why this would matter. You want an impartial prosecutor with no stake in the case. And in this case, we have 19 defendants, some of which are fairly minor. If you are directing public funds to your boyfriend and sharing the benefits of that, there might be an incentive to have more defendants than necessary and to keep them in the case longer than necessary. I think that would be the theory of how it could impact the case.

There are probably others. She also claims that that he wasn't appointed in the correct way that she has to, Fani has to get permission from Fulton County in a way that she didn't. I think it implies that he needs to get approval from the Board of Commissioners. There's already been some pushback from that, the New York Times quoted a Republican prosecutor in Georgia, I think the head of the prosecutor's organization, who was saying he didn't think that was necessary. So that's, that's an issue. We'll have to see how that develops if, if she needed any sort of approval that, that she didn't get. And then, of course, what he's asking for, what she's asking for, Mike Roman's attorney, Ashley Merchant, is asking for is dismissal of the case.

I don't understand how that would be possible. She's also asking, however, to disqualify Fani, to disqualify Nathan Wade, and to disqualify the whole office. Those are possibilities if, if her premises, if all of her premises turn out to be true. And as you've pointed out, there's, there's no reply yet. We don't even know that a romantic relationship exists. We don't know that any money came back to benefit Fani. And I guess the last thing before I turn this over, she implies that, and Fani was very upset about this, that Nathan Wade is sort of underqualified for the position, has never tried a felony RICO case, has never so far as she knows, file, tried any felony case. So, again, very unproven. So that's, I think, where we are.

Benjamin Wittes: So, a couple of things about, about this that have just struck me as the stories have come out. The first is that the hourly rate that he is supposedly billing at, which is $250 an hour, is not very high, you know. I, I don't know what he makes as a private practice attorney, but I would be shocked if it were not substantially higher than that.

The, the brief is laced with this implication that the, that there's this exorbitant spending, but you know, $250 an hour, it sounds like a lot of money to a lot of people, but for lawyer billing rates, it's, you know, it's not a, it's not an exorbitant rate by any means. What is the purported basis for saying that this is some outrageous amount of money?

Roger Parloff: Well, first, you know, it, it's a criminal case in state court. You know, it, it, it's, the comparison would not be to you know, what Manhattan commercial litigators get. And the, what he says is that her salary as DA is around $200,000. So all of the special, so all of her ordinary prosecutors are, are getting a lot less than that.

And the allegation is over three years he has billed I think around $650,000. And of course, she's getting $200,000 for running the whole office, not just for this case. So, you might be right. Maybe it turns out this is he's taking a pay cut. And that could well be an argument, but she sort of has to make the case, we need a special prosecutor that there's nobody in the office that could do this.

Benjamin Wittes: And it needs to be him

Roger Parloff: And it needs to be him. And-

Benjamin Wittes: It looks bad.

Roger Parloff: It, it, it looks bad.

Benjamin Wittes: Second question. Is there any argument other than assertion that any of the money is kicked back to her? I mean, for example, do we know, is it alleged that when they went up to Napa Valley, he was paying for her, or she was not paying her own way? You know, it seems to me much worse if you can credibly allege that, you know, the office paid him a lot of money and he spent that money on her, then it is, if you can say, the office paid him a lot of money and they did things together.

Roger Parloff: Yeah, there is zero documentation of that. In the, it definitely implies, you know, money is fungible and they took a vacation together and that. I believe it does say, it does allege, there was something about those tickets to the, on the, on the cruise lines, that he paid for them. I don't know if they, if she's claiming she can tell what account that came from. But, you know, when you're a, say, a Supreme Court Justice and you're supposed to have a financial disclosure, you're supposed to disclose what your wife makes too, because-

Benjamin Wittes: Wait, so wait, who paid for her recreational vehicle? Who paid for her recreation, the big shiny RV that she, oh, sorry, that was Clarence Thomas.

Roger Parloff: Yeah, but it is sort of assumed that certainly if you're a couple, if you're a married couple, you're providing for one another. And if you're a romantic couple, it's, it doesn't look great.

Benjamin Wittes: All right. So state of play before we move on, she's going to respond in a formal way, February 2. Judge is going to hold a hearing February 15. We will have a lot more clarity at that point. Is that?

Roger Parloff: That's right. And, and again, let's emphasize again, hearing myself speak, I, I want to say, we don't know anything yet. I mean, all of these allegations, they might be false. She hasn't responded. And the second factor is, I'm not Anna Bower, you know, she knows what she's talking about. I don't really, you know, this isn't my thing.

Benjamin Wittes: It's okay. You're doing a, you're doing a fairly good job of impersonating Anna Bower.

Roger Parloff: And I imagine everyone's quite disappointed that I'm taking Anna's place here. Some people are probably despondent that it's just me here. But anyway. This is all we know at this, that's all I know at this point.

Benjamin Wittes: All right. Speaking of things that are a little bit outside our jurisdiction, but are close enough in that we're going to sweep them in for purposes of this conversation, E. Jean Carroll, outside our jurisdiction, because it's not really a national security matter. That said, it's Trump litigation. It's ongoing. And it would be kind of conspicuous not to mention it at all. So Quinta, what's going on with E. Jean Carroll?

Quinta Jurecic: So today and yesterday we've had proceedings in the second defamation trial brought by Carroll against Trump. So the first defamation trial listeners may recall, ended up with a finding that, in civil court I should emphasize, that Trump sexually abused Carol and that he defamed her, and he has put 5 million on bond with the court while the rest of this proceeding plays out there. She is now bringing a second case against him because he defamed her, I can't recall whether it was in the middle of or following the previous trial.

Roger Parloff: I mean, there might've added a, a, a, a a count, but this is when he was president. And so, this was delayed while they argued various, you know, Westfall Act and, and, and

Quinta Jurecic: That's right. Apologies. I'm, I'm getting confused.  

Roger Parloff: This is the second trial, but they call it Carol I because it was filed first.

Quinta Jurecic: Yes. Apologies. I'm, I'm getting confused because there are too many of them. So, there will be a second trial in Carol II, I think, if I'm getting my numbering right. But yeah, the, the, it's kind of the, the magical, expanding, self-perpetuating defamation litigation because Trump also, during the proceedings yesterday, was posting on Truth Social or someone was posting from his, his account, again calling Carroll a liar so he's now done this again and again and again. There's a variety of cases against him. And what we've seen, I think, in the last two days is that his litigation strategy seems to be essentially annoying the judge as much as possible. So this is a case in federal court. And his counsel, Alina Habba, her approach really just seemed to be, to be as abrasive as possible, frankly, clearly irritating Judge Lewis Kaplan.

Trump himself caused a disruption. At one point, Judge Kaplan said he would throw him out of the courtroom if he didn't stop. So it, it seems like Trump has made the calculation that kind of raising a ruckus is the move here, I assume for PR reasons, since it's certainly not going to help him in court.

We also saw, I think it's fair to say, Habba stumbling a bit during trial and sort of tangling with the judge over the procedures for impeaching a witness and putting forward evidence and all kinds of things that you'd really hope counsel for a former and perhaps future president would have on lock. So I think it's, as with the New York civil trial sort of, an example of plenty of shenanigans going on.

Benjamin Wittes: All right. We are going to go to audience questions. I'm going to start with Josh, who asks, in Trump's D.C. case in Chutkan's court, could Trump's team try an insanity defense? They seem to be throwing any and everything at the wall, and his supporters don't seem to care about any of it.

I will take a crack at this which is at a basic level, they won't do it, he won't let them. I do think a, some kind of diminished capacity defense wouldn't be the craziest if you had a compliant client, would not be the most insane, no pun intended, approach. That said he won't let them do it, and more importantly, the standards for establishing it are really, really high, and he's a sufficiently high functioning human being that, like, it's not the kind of defense that ever prevails when you use a sort of the, the insanity species of defense, you know. They tend to tend to work best when you're dealing with either, you know, florid delusional systems where you can really say this is somebody who believes that, you know, cats are flying through the air and attacking him, or occasionally, you know, in situations like Lorena Bobbitt, where you have a very appealing defendant, for some reason, and a very but they're not situations where somebody brings out a crowd and, you know, is functioning at the highest levels of American government.

You're not going to be able to establish the degree of disconnection from reality that is not the formal legal standard, which is based on knowing the difference between right and wrong, but is the functional thing that persuades juries in this regard. So that's my answer. Roger, Quinta, what do you think?

Roger Parloff: I think that's right. The, there are ways to try to convey to the jury even that, well, you know, he's a quirky guy, you know, he's an eccentric guy, you know, he's, this is the way he is. He's, he's charming, you know, it's all out in the open. And, you know, the Republican party has bought this, you know?

Yeah. He's, he lies a lot, you know? Yeah. Yeah. You know, he, he abuses women. He's probably a criminal. Yeah. He's, but he's charming. And they will try to do that with the jury, but it won't be an insanity defense. He won't permit that.

Benjamin Wittes: Yeah, I think that's exactly right but I do think if you can convince a juror that there's a soft version of it, which isn't crafted as an insanity defense, it's crafted as a he's a quirky guy, but it's that, you know, he really believed this stuff. And if you, you know, that's, it may seem crazy to you. Look, it seems crazy to me, but he really believed it. He honestly believed all this stuff. And so he doesn't really have the criminal intent necessary to, convict.

That's an argument they're gonna make, and it is not formally an insanity defense, which is an affirmative defense you have to prove, but it is kind of like inflected by a diminished capacity argument, and it's based around the same idea, which is that hey, the criminal intent is an element of the offense. If you can convince people that he's not capable of forming the requisite criminal intent, you know, the glove fits and you have to acquit.

So, all right, Susan asks, Trump's team uses so much stalling and so many opportunities seem available at every juncture to introduce delays. Do you think any ruling by the end of March is possible? Quinta, what do you think? End of March?

Quinta Jurecic: I guess I'm, I'm not sure what case specifically this is-

Benjamin Wittes: I think she means any case.

Quinta Jurecic: I mean, end of March, definitely not. I think the D.C., for example, D.C. trial starting, it was meant to start at the beginning of March and that is not happening. And it gets pushed back a little farther every day that the D.C. circuit decides not to rule.

So we're, we're definitely in delay land. I think each of the cases are on kind of a different delay. The D.C. case, I think Judge Chutkan really wants to get moving as quickly as possible once that's handed back to her. In South Florida, it seems like Judge Cannon would be happy to delay as, as long as possible. So we'll, we'll see what the timing looks like.

Benjamin Wittes: You know, keep an eye on New York because that's a case that has a late March trial date that could go forward if the New York case does not go forward in the beginning of March. And so I don't think you're going to have a ruling or a verdict by the end of March, but you could have something not too long after that.

John Bordeaux, lovely to see your your, your name on the chat on the Q&A. The floor is yours, sir.

Audience Member: Delighted to be here. Thank you again for doing all this. This is fantastic. I appreciate you people. You're lovely people. I'll point out to people watching that Quinta's pillow seems to be screaming. I hope that's not an overt message. My question is that Ms. Habba in New York appears to not understand things like rules of evidence or courtroom procedure. Does her defendant have an avenue towards incompetent counsel defense on appeal?

Benjamin Wittes: So the ineffective assistance of counsel is a creature of criminal cases, not civil cases. You cannot plead what's called IAC as a way of getting a civil verdict overturned, I don't think. The other thing is that he had other lawyers in this case, and he drove them all away. And there's no, you know, there's no right to court appointed counsel in civil matters. And so, if you make yourself completely intolerable to your lawyers so that nobody will represent you, you may actually suffer consequences of that in litigation.

And there's no, you know, there's no, the state doesn't have to provide you a competent lawyer like it does in, in criminal matters.

Audience Member: Your real lips to God's ears. Thank you, sir.

Benjamin Wittes: Roger, and any, leave anything out on that one?

Roger Parloff: No, I agree. There, you know, there is you know, theoretically you can sue for malpractice. That would be, you would sue the, he would sue her for malpractice but I, I don't see how, how he could do that. If what, I haven't seen her performance in court, I I'm just-

Benjamin Wittes: It, by all Twitter accounts, not been stellar. All right, Nathan asks, assuming DOJ may weigh in somehow on the Supreme Court's review of Trump's appeal to the Colorado District and Supreme Court decisions, that it may, after ruling on broader questions, remand the case down to Judge Chutkan's court. That seems improbable. Or the appropriate federal district court for Colorado to try the evidence for and against the question perhaps most in dispute, did Trump engage in the constitutional crime of insurrection against the United States?

Okay, so there are a bunch of things in here that I think are incorrect as a matter of assumption. Roger, do you want to take this? Or Quinta, do you want to take this? Or should I?

Roger Parloff: I'll try. That wouldn't happen. They aren't going to send this back to a different court. At least, that's not an existing remedy available. I mean, you know, what the Supreme Court does, it can do. But no, the, it can, there's plenty of variables out there, but that isn't one of them.

It will either affirm what the Colorado court did, in which case we can argue about whether it binds anyone else except the Colorado court, or they will overturn it and depending on the grounds they use that could end all of this or not. And, and in fact there was one brief filed today by Akhil Amar who is a towering constitutional scholar but also someone with, it's very different, difficult to fairly summarize whatever he thinks about anything because it's very nuanced and balanced and confusing.

Benjamin Wittes: Which is not so great for writing briefs.

Roger Parloff: Yeah he wrote a very interesting brief, which I haven't finished, and he says, of course Section 3 applies to presidents, and of course in effect, it's self executing, and of course, insurrection can be based on words as well as conduct or in lieu of conduct, but he sort of implies, even if it upholds what Colorado did, he doesn't seem to think the Supreme Court gets the last word here. It's still a live question for Congress. And anyway, I haven't read the whole thing. Anyway, there's tremendous confusion. We have to wait to see what the Supreme Court says, but it won't send it back down to Chutkan.

Benjamin Wittes: All right. Jim Brennan asks many commentaries regarding the 14th Amendment seem to indicate that a constitutional crisis should be avoided by finding some credible off ramp for the Supreme Court. Seems to me that we have been in a constitutional crisis since at least January 6. My question is, wouldn't it be better to confront this crisis sooner rather than later? That is, find that Trump is not qualified now, many months before the election. Trump will claim all types of conspiracy regarding such a finding. But he's going to do the same thing if he loses the election in November 2024 anyway.

Quinta, you're our resident expert on constitutional crises. What do you make of this? Is it better to resolve it well in advance so that he has time for the temper tantrum? Or is it better to catch him off guard shortly before, before D-Day?

Quinta Jurecic: Yeah, I'm in the resolve it well in advance. Here, the question of what a constitutional crisis is, is a really complicated one. There's I believe I'm, I'm drawing on Keith Whittington's work here in dividing between sort of two different kinds.

One is a, a crisis where the Constitution tells you what to do, but nobody does it, or the person in power doesn't do it, and the other is where the Constitution doesn't tell you what to do. And you can imagine either scenario in this instance. I'll actually point to another amicus brief that was filed today by Ned Foley, Rick Haasen, and Ben Ginsberg all of whom are very highly regarded election law scholars. Ginsberg having for a long time litigated on behalf of the Republican Party in election matters, although he moved away from that recently. Essentially saying, like, not weighing in on the merits of what the court should do, but saying that the court needs to address this issue on the merits. Is he disqualified or isn't he?

No, you know, cutesy procedural measures. No, oh, there wasn't, you know, due process, so Colorado needs to go back and do it again. None of that. No, you know, just that it really needs to cut to the heart of the matter so that we have an answer, because you can imagine a kind of nightmare scenario where, let's say, the court kind of hems and haws, we don't get a clear answer on the question. Let's say, just to reach the worst possible world, you somehow end up in a scenario where Trump wins a majority of the Electoral College. You then go to Congress on January 6, 2025, and then Democratic members of Congress say under the Electoral Count Act and the Electoral Count Reform Act, we think that we have an obligation to prevent this person from serving as president. But in our reading of the 14th Amendment, you see that is that we have a duty to enforce the fact that this person is disqualified.

Then what do you do? I think that there's, that, that's kind of like the, the nightmare. It's not a very good situation. I think that that is a more of a crisis where the Constitution doesn't tell you what to do. Where different actors have different understandings of their own constitutional obligations. And you can end up in just a very, very nerve wracking situation and one that is deeply uncomfortable for everybody involved.

So I, I am also of the view that the court needs to rip off the band aid and just deal with this one way or the other. I will say that I do think there is going to be a temptation to kind of rule that Trump is not disqualified because that is the kind of way to deal with this issue once and for all because given the decentralized nature of election administration ruling that Trump is disqualified would likely have to be hashed out kind of in, not exactly state by state, but sort of state by state. There would be a lot of litigation that would follow. And so it's kind of less clean. I still think that they should just do it and be legends, but either way, I think an answer on the merits is really important.

Benjamin Wittes: All right, Antti, the floor is yours.

Audience Member: Thank you. So this is a tad frivolous, but what is the current SCIF situation related to the documents case? Do we actually know if Trump and Nauta have access to a functional SCIF or not? Thank you.

Roger Parloff: Well, he certainly has access to one or two actually in the Miami area, which is not that close to Mar-a-Lago. He, we finally found out that he lost the motion to have a SCIF put into Mar a Lago or put back into Mar-a-Lago or put very near to Mar-a-Lago. Judge Cannon hadn't said that expressly, but in a subsequent motion, in a footnote, she admitted that she had ruled against him on that.

Benjamin Wittes: All right. Penultimate question from Jeff. Roger, Quinta, I want both of you on this. What is the over under on a billion dollars punitive, in punitive damages for Trump in the E. Jean Carroll defamation case? Do you take the over or the under?

Quinta Jurecic: I, I don't know enough about the relevant law to have a real sense of this. I would say, I don't think he's endearing himself to the jury. So perhaps the, the damages climbs a little higher every time he has an outburst. I don't know.

Roger Parloff: A ruling like that, although possible, is, would be short lived.

I think she's asking for 10 million and I don't know if she's asking for that as compensatory or punitive, but it's very hard to get more than three to one and hard to get two to one. Above that there, there, the Supreme Court has said there are due process limits. Assuming New York doesn't have its own cap, which it might.

Benjamin Wittes: It's a fun question, but the actual answer is under, and well under, because you're, if you, you know, you have a $10 million compensatory damages, there's no way that will legitimately produce more than, say, 30 or 40 million in punitive damages. But by the way, a $30 million punitive damage award. That would be a heck of a of, of a thing. So don't inflate your expectations so high that you don't notice a big deal when it happens. All right, Nathaniel, you get the last question today.

Audience Member: Good morning from Australia, Friday morning in Australia. Thank you all. My question relates to interpreting the eligibility question in Section, in Section 3 Amendment, in light of Congress's power to overturn the disability.

I'm imagining a situation where SCOTUS rules that Trump is ineligible around Super Tuesday. He's struck quickly from the primary and general election ballots, and in Colorado and other states follows suit, or follow that example, before Congress has even had an opportunity practically to vote to remove the disability.

I mean, the fact that they wouldn't actually in this circumstance is irrelevant to the question, but if that would be the case, to ensure Congress's authority is practically exercisable, mightn't SCOTUS conclude that Trump is eligible to run for president, but not eligible to sit as president and leave it to Congress after the election to decide on whether or not to lift his disability? Thank you.

Benjamin Wittes: So great question. I have a couple thoughts on this. I'm sure, Roger, you do as well. And I suspect Quinta might too. So why don't the two of you go first and I will follow up.

Roger Parloff: So this has been raised in various ways. Trump raises it pretty directly in his brief. Couple problems. One is it kicks the can down the road. And you get a constitutional crisis, it just later if he's elected and, and then, then we don't know, is he disqualified? Who we still don't know who, who has the power to decide that? The way this comes up, this, I, I think I explained this once earlier, you have situations where somebody wants to be on the ballot and he's not a resident of, of the state. And so the court, and somebody sues to keep him out and says, you have to be a resident to run, to be, to be a U.S. senator from the state. And he says, well, I'm not now, but I will be by the time my term begins.

And courts have ruled in favor of that and said, yeah, okay that's true. And, and so by analogy, you could say, well, maybe both, both houses of Congress will vote by a two thirds margin to lift the disability between now and election day now and, excuse me, January 20, 2025, but it's not really realistic.

You have a lot more control over whether you move to a state than, than whether you can convince two thirds of both houses to lift a disability. And, and furthermore, you know, we can take judicial notice. The people in Congress know about these suits going on. They could lift the disability today.

Benjamin Wittes: That's the, that's the key point.

Roger Parloff: Yeah.

Benjamin Wittes: Premise of the question's wrong, actually. Congress could act right now and relieve whatever disability may exist.

Roger Parloff: And, and maybe you know, somebody should introduce a bill to that effect. It would be interesting to see how various people vote. Because it, it, it, to, to vote for it would be sort of to admit that he, you know, is disqualified, so.

Benjamin Wittes: All right. Quinta, do you have thoughts on this?

Quinta Jurecic: Yeah, I just say, so there, there is an, textual argument based on the text of the 14th Amendment that it prohibits holding office but not running for office precisely for this reason and the National Republican Senatorial Committee filed amicus brief, I believe with the Supreme Court or with the Colorado Supreme Court making exactly this argument. I think it's a little too cute for more or less the reasons that we've set out here, but it is potentially on the table.

Benjamin Wittes: Quinta, before we end today's session, do you want to resolve the question that has been roiling the chat about your pillow?

Quinta Jurecic: What, what is the question?

Benjamin Wittes: Is your pillow screaming?

Quinta Jurecic: Oh, yeah.

Benjamin Wittes: Or is it sighing with satisfaction?

Quinta Jurecic: No, it's a, it's an infinite scream pillow.

Benjamin Wittes: Yeah, so infinite scream is a great Twitter feed from back when I was on Twitter.

Quinta Jurecic: It doesn't exist anymore.

Benjamin Wittes: Oh, no. You could tweet at it and whatever you tweeted at it, it would shout back, “AHHHH” and it was very satisfying. All right, we are going to leave it there. Quinta, Roger, thank you both for joining us. We will be back next week. We will have briefs. We will have probably a D.C. Circuit ruling, maybe. We will have antics from South Florida and from, from Georgia. It's going to be a blast. Until then, thank you all for joining us.

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