Trump Trials and Tribulations: Weekly Round-Up (May 09, 2024)

[Audio Excerpt]

Anna Bower

We had some news out of Fulton County, and the news is that the Georgia Court of Appeals is going to take up the appeal of the order denying Fani Willis's disqualification from the case.

Benjamin Wittes

It's the Lawfare Podcast, Trump's Trials and Tribulations. I'm Benjamin Wittes with Anna Bower, Tyler McBrien, and Roger Parloff.

Roger Parloff

It's conceivable if her motion to compel rulings were really broad, Jack Smith might try to appeal. But I don't know, things look pretty bleak right now.

[Main Podcast]

Benjamin Wittes

Today we're talking about why Judge Cannon suspended the classified documents trial date. And we're talking about the Georgia Court of Appeals decision to hear Trump's and the other codefendants efforts to disqualify DA Fani Willis.

Hey everybody, and welcome to this week's Trump Trials and Tribulations. Speaking of my personal trials and tribulations, tech continues to be an issue. But we love technology and so we're being cheerful about it. You're all great Americans and it's great to see you.

Before we get started today, I have a note of personal privilege that I want to address. This is to people out in YouTube land, frankly, not to people who are close supporters and close followers because I think everybody in that latter category totally understood what happened yesterday. But there were some people in the YouTube comments, and I'm aware of the admonition, never read the comments, but I take our viewers very seriously, so I actually do sometimes read the comments. And there were some people who were quite offended by some things that I said yesterday about Stormy Daniels as a witness, and I want to address that a little bit just directly before we get started.

So first of all, I was not in any way suggesting that either I or any given juror wouldn't necessarily believe what she says. I happen to believe her story. My concern about her as a witness is that she is not testifying to the elements of the offense, and that because she has a history of trying to get money for different stories that are quite different from one another, she is extremely vulnerable to very aggressive cross examination, which is exactly what was happening. It has nothing to do with whether I think she's telling the truth or whether we believe that Donald Trump is a bad guy, or whether we believe her story. It has everything to do with a sense of trial strategy. And my job is to not, pardon me, validate people's feelings about witnesses. My job is to try to tell you what I think is going on in the courtroom, what I think is going to work from a point of view of prosecutors and defense lawyers, what I think is helpful and not helpful to different sides’ cases, and how I think testimony is or is not likely to advance trial strategy. That is what I did yesterday. I do apologize if it came off as brusque or dismissive of the witness's story. That is actually not how I feel. I do not, however, apologize for giving you my honest view of what I think is probably an unfortunate decision by the prosecution to put this witness on the stand, which I do not recant, and I stand by it.

So if you, as I said, when people went after Tyler for reporting stuff out of the courtroom, if you do not like the tone or substance of Lawfare’s trial coverage, you are very welcome to find other places to learn about what's going on in the court. I'm sure there are, whatever your sentiments are, there is somebody in there who is servicing those. We are for the people who want a very cold-blooded analysis of—not just cold-blooded—but among other things, cold-blooded and clinical analysis of what is going on at the level of the trial. And so I want to, as I have mama-beared some of our people when they have faced criticism and said, hey, this is what we do, I'm going to actually say the same thing about myself right now, which is, hey, this is what we do.

And one of the other things that we do is we go deep where others go shallow, and I want to draw all of your attention to an article written by one Quinta Jurecic and one Tyler McBrien. Quinta Jurecic who's not here, Tyler McBride who is here, on what I think is going to be, it's one of the nerdiest articles that has ever or will ever be written on this trial. And we're going start today by diving a little bit deep on it. Tyler, what is this article and what were you trying to do in it?

Tyler McBrien

Yeah, thanks, Ben. I want to preface this by giving a big shout out to Quinta. She did the lion's share of the research and the writing on this, as I was in court reporting. I wish the byline could reflect that, but it's just both of our names. So I want to give credit where credit is due. Yeah, amazing work by my co-author on this. But this piece actually came out of another piece that Quinta wrote, which was essentially charting the legal theory behind the DA's case because I think because of quirks of New York state law there's been a lot of confusion. There was even one episode on April 23^rd in court when the assistant DA Joshua Steinglass himself said there were a lot of misperceptions about the law and the case. And so, I think Quinta's first piece and then the second piece that we wrote were aiming to clear up these misperceptions. And also, another caveat that this is not to be an endorsement of their legal theory at all, but just a means of explaining some of these misperceptions.

But essentially, we wanted to tackle two questions that were still lingering for us, and I think a few people. The first being, what the prosecutors have to actually prove beyond a reasonable doubt. Just a very brief reminder that the falsification of business records in New York are a misdemeanor, but they can be, quote, “stepped up” to a felony if they were done, and I want to get the words of the statute right here. So, “a person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime, or to aid or conceal the commission thereof.” So that underlying crime is also called the object offense. We wanted to address whether or not the prosecutors would have to prove the commission of that crime beyond a reasonable doubt.

And then secondly, relatedly, we were also curious to know, in the event of a guilty verdict, whether the jury has to be unanimous on which of the object offenses there are, that the prosecution is trying to prove. Because as a reminder, they're actually pursuing three different theories of the underlying crime. So one is related to a FICA violation, one is related to New York state election law, and the other one is related to tax fraud. So those were the two questions we were addressing.

Just to spare everyone the suspense on the first question, we—rather, Quinta more so—dug into the case law. I spoke to a former Manhattan DA, someone who worked in the Manhattan DA's office, and I think it's pretty clear here. The bottom line is that the intent to commit the crime, the intent to commit the object offense, is the element that the prosecution needs to prove beyond a reasonable doubt. The object of crime itself is the means, and so, the intent is what needs to be proven here. And we can go into some more of the case law there if we want. And then, secondly, on the jury unanimity question, this one is perhaps less of a slam dunk, I think, for the prosecution. But I think, similarly, we found that these object offenses are, again, means, and the jury will not have to find unanimously which of the ways in which Trump committed the crime of falsification of business records.

I will add a quick addendum here that given how careful I think Justice Merchan has been throughout this entire process, it seems very likely that he'll issue jury instructions and a special verdict form to the jury, asking yes or no questions on whether Trump intended to commit each of the object offenses. And I'll also say that the DA has been pretty clear at this point that they're pursuing one of the theories, the New York election law theory, as their, Steinglass's referred to it as the primary crime that that they're alleging Trump committed, in addition to the falsification of business records. So that may also be them hedging against or preserving the guilty verdict on appeal. So I'll leave it there as the broad overview.

Benjamin Wittes

So I want to push on a couple points about it. The first is for those who do not understand the why is this important question, right? This was dealt with in the motion to dismiss. Trump argued, hey, you can't charge me under this statute, under this step-up theory. Justice Merchan rejected that. What is the residual question that we're still, why are we still thinking about it?

Tyler McBrien

I guess to go back to the one of the motions to dismiss, I think it's helpful to think about a similar statute, which both sides did, which is burglary. So burglary in New York is similar in that it can be stepped up if there's an underlying object defense attached to it. But there's a distinction between, for example, the burglary statute and the 17510, which is the falsification of business records. And the burglary statute, it's intent to commit a crime, which suggests, I think, a more general and less specific reference to whatever the object defense is. But in 17510, it's to intend to commit another crime. Quinta and I actually went back and forth on this. I think the reasoning could be inverted for a crime versus another crime. But I think that's one of the reasons that it's open ended. But Ben, I'm curious if you had another reason in mind that I'm missing.

Benjamin Wittes

So I think the critical thing, the reason this case, this issue is important is that this has everything to do with how the jury gets instructed. There's been a whole lot of questions raised, including some that I raised yesterday. Why are we talking about the sexual encounter between Trump and Stormy Daniels in 2006/2007 when the issue was falsification of business records, right? And the answer has everything to do with this step-up theory and how much do you have to prove about the step-up crime, especially because you've named three of them, right? And so, what if one juror believes that the step-up works because of one crime, your tax law, election law, and a third one believes because of federal election law? And then a whole bunch of others are just convinced that he did one of them, but don't really know which one? These are going to be the major appellate issues in the case, I think. And how Justice Merchan handles them in the context of the jury instruction is going to be all important.

Tyler McBrien

Agreed. And I think these questions also get to an answer to the question of why, perhaps, the prosecution is pursuing one of the theories above the others. And this has to do with the New York election law 17-152, which criminalizes, quote, “promoting or preventing the election of any person to public office by unlawful means.” Quinta laid this out really well in her other article, which is called “Charting the Legal Theory Behind People v. Trump.” Because we tried to lay this out via a chart, but essentially, those unlawful means are then the other object offenses as well. So it loops everything back together, which is another good reason, I think, for the prosecution to pursue this one, so that you don't end up with this sort of split verdict on the jurors deciding which of the object offense they actually believed Trump was intending to commit or conceal.

Benjamin Wittes

So Roger, what do you make of this? Do you think that this is a matter that without exquisite care on Justice Merchan's part, we're going to end up with a serious appellate problem? Or do you think this is just an area where New York statutory law, New York criminal law, is really forgiving to the prosecution and kind of, as long as 12 people agree that you meant to do something that was illegal when you falsified your business records, the appellate courts aren't going to take too close a look at what you were trying to do or to what standard it was proven?

Roger Parloff

If he's convicted, I'm sure it will be an issue. But I thought the law, I think the statute is pretty, the statute's crystal clear. It's only intent you need to prove to commit another crime. And I think Quinta lays out a convincing theory that they wouldn't need unanimity about which crime, although, like Tyler says, it's certainly safer if you have that. I'm not that worried about it.

Obviously, the thing that a lot of people were worried about, and I think still are worried about, is that the strongest case here always reverts back to the object crime directly or indirectly being a federal crime, and so there will be this issue, can the object crime be a federal crime? And I can't predict that. I think there's strong reasons to believe it can be. But that was one of the reasons that Mark Pomerantz, the special prosecutor, did not want to go with the hush money case alone. He was willing to go with it, but only in conjunction with another case, in case the hush money case turned out to only be a misdemeanor.

Tyler McBrien

Ben, I'd also add, you mentioned this was very in the weeds. And it's funny we had this experience, Quinta and I, when speaking to former prosecutors from the Manhattan DA's office, where they almost said, this is very in the weeds for us too. These weren't questions we would generally think about with this particular statute. They called it a keep it simple statute. They were trained to just keep it simple. The element is intent, that's what we have to prove in the course of a trial where prosecutors were telling a story. So of course, we're going to name and probably focus on one object offense over the others because it makes for a cleaner narrative. But this is a very simple type of thing to prosecute.

I will say, just briefly digging into the case law, most similar cases that worked their way through the appeals courts did also charge the object of offense alongside the other charge. But there were other cases, I believe two or three, that Quinta found that, like Trump's case, only charged 175-10. So this I think this speaks to early reactions when the indictment came out of this is a very novel prosecution. This is very strange or unique. And I think we were gently pushing back on that as well as part of our piece.

Benjamin Wittes

Right. A lot of people said that the step-up was unique here, but I think you guys pretty convincingly show, first of all, the step-up itself is commonplace. And secondly, even to the extent that there is some unusualness with the step-up involving an uncharged object offense, it's not unique. There are these cases where there are either pleas or charges where—they tend to involve guns, interestingly—but where the step-up offense is uncharged. There aren't a lot of them, but it's not like they created this idea for Donald Trump.

Tyler McBrien

Right, and I think the question does remain of why the DA didn't charge the object offenses as well, because it is common. I think because they didn't have to is an answer, but an incomplete one. I think other theories, and actually I was speaking with Anna Bower about this, where she thinks that statute of limitations could have played a role here, where actually the underlying object offenses might have timed out in terms of statute of limitations reasons, and so that's why they didn't. One of my theories is, I'm curious why they actually, the Manhattan DA, doesn't leave off the object offenses from the indictment more. It seems there is maybe an incentive to only charge 175-10 because it's such a simple, you just prove the intent, and then why complicate things? But I think those are all still just theories. They didn't have to, so they didn't, but we're not exactly sure why.

Roger Parloff

To the extent that the object crime is a federal crime, you can't charge it.

Benjamin Wittes

So there's some interesting chatter in the chat about to what extent this is appealable to the Supreme Court of the United States. Roger, do you agree with me that the answer is that this is a pure matter of state law, at least insofar as the object offense is a state crime? There's no reason to think, even to the extent that it incorporates some federal law with a federal object crime, this would not be a matter that the federal courts would trouble themselves with under anything like normal circumstances.

Roger Parloff

I think that's right. Technically, the defense has raised, and Professor Sugarman has raised, this theory of maybe it's federally preempted the election object crime. That's sort of tortured. If the Supreme Court wanted to reach out and take that, I guess it could. If that even makes it into, we're all assuming there's a conviction in order for there to be an appeal. And then even assuming that they judge that to be one of their stronger arguments, which I doubt.

Benjamin Wittes

This is going to be, to the extent that there is an appellate issue here, it's really a New York state appellate issue.

Tyler McBrien

There's also a relevant Supreme Court case that Quinta and I talk about in our piece of Schad v. Arizona, which I won't go into the details, but it was a bit of a confusing opinion, I would say. But essentially, from what we could tell, the majority held that agreement among jurors is required as the elements of an offense. I think that's not in dispute, but it's not required as the means. Much like what we've been talking about, the jury must agree on which crime was committed unanimously, but not necessarily how it was committed. So I think that's also more context in favor of a non-requirement for unanimity for the object offense.

Benjamin Wittes

We are joined by the estimable Anna Bower, who is joining us from a room in her palatial mansion that I have never seen before. Anna, where are you?

Anna Bower

I don't know, Ben. I'm going to let you christen the name of the room, because I just built this room in my place.

Roger Parloff

The thermostat room.

Anna Bower

The thermostat room.

Benjamin Wittes

This is the coffee shop near Penn Station room, right?

Anna Bower

That is correct. And it also is the there's music in the background and I apologize to everyone for the poor audio as a result room.

Benjamin Wittes

As we always say on Trump Trials and Tribulations, the tech glitches and the music in the background are part of the show. Alright, let's talk about Fulton County because we've had movement in the Fulton County case. Anna, what gives? What's happened?

Anna Bower

We had some news out of Fulton County, and the news is that the Georgia Court of Appeals is going to take up the appeal of the order denying Fani Willis’s disqualification from the case. We talked about this a lot, but we haven't talked about it as much in recent days because we've been waiting to hear from the Georgia Court of Appeals as to what it's going to do. We now know in a very brief order, they just basically said, yes, we're going to take up this case. The case, last I checked when I was getting off the train about less than an hour ago, it had not yet been docketed. So we don't know who the panel will be from the Georgia Court of Appeals. It will be a three-judge panel who decides the issue.

But I think, importantly, this has some real consequences for the case and the timing of the case. It almost certainly means that Trump will not go to trial in Georgia before probably 2025. And it also means that a lot of these other issues that have been denied by Judge McAfee, for example, some of the RICO challenges that were raised earlier on, which judge McAfee denied because of a rule under Georgia statutory law, which says, basically, once you raise an appeal, you can bring in all these other issues. It means that those issues may very well be raised before the Georgia Court of Appeals as a part of this disqualification appeal as well. So there's a lot to unpack there if you want to unpack it more. But I think the bottom line is that this strategy of raising the disqualification issue, appealing it, has, at the very least, both impacted public perception of the case and then also is causing some real delay. So I think to that end, it's probably a huge victory for Trump and for the other co-defendants who joined this appeal in Fulton County.

Benjamin Wittes

Has the Georgia Court of Appeals stayed the lower court proceedings, or does Judge McAfee keep chugging along on pretrial stuff as long as he doesn't start a trial?

Anna Bower

Yeah, so if people recall, when Judge McAfee initially gave Trump and the other co-defendants permission to appeal or to seek an appeal from the Georgia Court of Appeals, he said, okay, I'm staying the order that I issued denying the disqualification of Fani Willis and allowing her to continue on the case. But other parts of the case I'm still going to deal with. So basically, he was saying, I can continue to have hearings on pretrial motions, I can continue to issue orders on those motions. But we're not going to trial and there's no judgment of conviction that's going to be entered until this issue is or is not taken up by the Court of Appeals.

There was no indication in the Court of Appeals order today that it had an issue with Judge McAfee doing that. It didn't on its own accord, say, oh, actually everything stayed in the lower court. However, there will be an actual substantive brief that the defendants will file to the Georgia Court of Appeals. We're going to go through another briefing cycle. Because, remember, this decision is just whether or not the court takes it. Now we have another briefing cycle. And in that briefing cycle, I think we might see that the defendants could ask the Court of Appeals to stay all proceedings in the lower court. So we will see. But as of now, it seems that judge McAfee can still continue to deal with some of these pretrial matters.

Of course, there's one pretrial matter that he maybe won't be dealing with until the Supreme Court rules, which is the pending presidential immunity motion that he still has not held a hearing on or ruled on. And in my view, he's very likely to wait until the Supreme Court rules and then make his own ruling based on that decision.

Benjamin Wittes

That's almost certainly the right thing for him to do, given that whatever he were to do now, they could upset in a month and a half. So what do we know about the Georgia Court of Appeals? My impression of it is that it is a quite professional and relatively nonpolitical court. On the other hand, it is a state with elected judges. What do we make of the prospects of Judge McAfee's order surviving appellate review in Georgia?

Anna Bower

Yeah, appellate judges on the Georgia Court of Appeals do run for office in nonpartisan races, but you're right, Ben. Georgia's courts are very professionalized as compared to some of the courts in other states that are more partisan in terms of, for example, the Texas Court of Criminal Appeals or something. And I think that, again, it's the kind of thing where it depends on the panel, and so we will see who is on the panel. But my perception from talking to folks who are in appellate practice in Georgia is that the court of appeals is known to be a little bit more criminal defendant-friendly than maybe the Georgia Supreme Court. So there might be some kind of element or aspect to that defendant friendliness that is maybe a factor within the decision to take up this case. I don't know.

What we also don't know is why the court of appeals took up the case because it could be that it doesn't necessarily even relate to the aspects of the disqualification motion that related to Fani Willis and Nathan Wade's relationship. it could relate to some of these claims of forensic misconduct. Judge McAfee, if you all remember, had to consider whether or not Fani Willis's out-of-court statements were themselves disqualifying, and there were some statements that he said were, quote, “legally improper,” I believe was the term that he used. So it may have been that the court of appeals isn't so much focused on the Fani Wills-Nathan Wade relationship aspect, but more on the forensic misconduct aspect, which is a pretty underdeveloped area of Georgia law. But back to your initial question, yes, the Georgia Court of Appeals is a pretty thoughtful, professionalized body.

Benjamin Wittes

And how long does a Georgia Court of Appeals opinion take? What's the current docket timing from the time they say, hey, yeah, we're interested in this, to the time they issue a ruling? What are we talking about?

Anna Bower

In the normal course, it takes a very long time, over six months at least. And I believe that there's been a lot of cases that have been backlogged, that they have a pretty heavy docket at the moment. That's my understanding from talking to appellate lawyers in Georgia. My understanding is that they think this is going to take a very long time. And again, a part of the trouble, too, is that it's not just that they're deciding this issue. I can guarantee you that these defendants are going to try to use this as a hook to tack on a bunch of these other issues that the court of appeals may then consider as well. So it's going to take a long time. I think there is a process to expedite. I've just been reading this order, and so I will get back to folks on if the appeal is in some way expedited, what that time frame might be. But I really think that it's going to take a long time and that this case is not going to trial before 2025 as a result.

One of the big questions though here that I have is, what about these other defendants who didn't join the disqualification motion? Could we still see some of them going to trial before the election or before the end of the year? It's possible because Judge McAfee has said that he wants to sever out some of these defendants into different groups. You have some defendants who didn't join the disqualification motion such as John Eastman, who is someone who has said he wants to go to trial before 2025. And he wants to be severed from Trump. So it's very possible that we could see some of these defendants who didn't join this appeal or this motion to begin with, who have now waived that right and didn't file a timely motion and that kind of thing. They could be severed out and we might still be able to get a trial for some of them, but it's unclear.

Benjamin Wittes

All right one other important question about Georgia before we go to South Florida. Scott McAfee, Boy Wonder. Campaigning with a dog. Now, dogs are in the news in political campaigns because the governor of South Dakota shot one and seemed to be boasting about it. So I think the first thing we got to say is no evidence that Scott McAfee has shot the dog, right?

Anna Bower

But do we know that is his dog, or is it just a dog?

Benjamin Wittes

I was just going to ask you that. What do we know about Scott McAfee and dogs, and do we know anything about Scott McAfee and dog shirts?

Anna Bower

Oh, should we send Scott McAfee a dog shirt? Or is that a conflict of interest? I don't know.

Benjamin Wittes

I think he's not allowed to take gifts from us. Only Clarence Thomas is allowed to take gifts from us.

Anna Bower

I don't know the answer to Boy Wonder's dog campaign, but I will try to find out because that is a good question.

The other thing I will mention in the Fulton County news as well is that this court of appeals decision comes just after Nathan Wade gave his first public interview. He gave an interview to ABC News over the weekend that aired, I think it was on Monday morning. And there are some choice lines in there, especially one in which he says, “Workplace romances are as American as apple pie.” There are other comments that he made in which he said, for example, I believe the line was something to the effect of, “We knew it could compromise the case, but it just happened,” or something like that. So it's really unfortunate that, I think, he decided to go out and make those comments because it's just feeding more into the idea that there was something improper about what was going on between Willis and Wade. It is the something that Steve Sadow, Trump's defense attorney, seized on when this interview came out.

A lot of people have asked whether that's something that could be used in the appeal. I don't think so because what the appellate court is looking at is just the factual record that was developed in the lower court. However, it really is something that I think was not helpful to the case or to this pending appeal that Nathan Wade decided to go out and make public comments. So yeah.

Benjamin Wittes

One other serious question on the appeal, which is, first of all, anything that the Georgia Appeals Court does, the Georgia Supreme Court can review. If I were Fani Willis, I might very much want some kind of early Georgia Supreme Court intervention, à la what Jack Smith asked and did not get from the Supreme Court in terms of a cert before judgment on the immunity question. And so my question is, is there any prospect of basically the Georgia Supreme Court dealing with this in the first instance, or are we necessarily going to go through a two-step appellate process here?

Anna Bower

I don't think so. I'm thinking back to earlier last year with the special grand jury, for example, I believe that Trump's team tried a similar strategy of leapfrogging over the appeals court and going straight to the Georgia Supreme Court with an issue that Judge McBurney had denied when the special purpose grand jury was ongoing. And my very vague memory is that there was only like one time in Georgia history or something in which the Georgia Supreme Court had allowed that type of leapfrogging. Again, it's a question that I would need to look into. And so check back with me next week and I'll be able to provide an answer for you.

Benjamin Wittes

Alright. Let us go 500 miles southeast to Fort Pierce, Florida. Roger, I think we're going to title this segment, “Come On Aileen. Oh, I Swear.” What is she up to?

Roger Parloff

She's done a lot of things, none of them favorable for those of us who had hoped to see a verdict ever in this case. She has finally formally vacated the May 20^th trial date and did not set a new one. And she doesn't mention it, but while she was refusing to set a new trial date, other judges do set trial dates. And so Stan Woodward, who represents Nauta, had been assigned to another trial during that period. And he is now expected to be on trying that case from August 26^th to possibly as long as October 7^th. That had already pretty much taken this off the table.

And anyway, she formally did it. She did it in a sort of characteristic, I'll say, canonical sentence. It's 66 words long. I'll read it to you. And this is maybe uncalled for. In fact, I'm sure it's uncalled for. But when I read her writing it always reminds me of the Margaret Dumont character in a Marx Brothers movie. See if you understand. “The court also determined that finalization of a trial date at this juncture before resolution of the myriad and interconnected pretrial and CIPA issues remaining and forthcoming would be imprudent and inconsistent with the court's duty to fully and fairly consider the various pending,” and so on and so forth. So you get the feeling. That is how she writes.

She did set some new dates. It seems clear at this point that she is on track to grant hearings on every single motion that Trump and his co-defendants sought them on. It's about 13. One of the ones that she's already set is a three-day partial evidentiary hearing from January 24^th to 26^th on a motion to compel and to redefine the prosecution team. So what they want to do here is say that the prosecution team has to include certain members of the White House, NARA, the intelligence community, Department of Defense. So this would mean more delay. It would mean extraordinary and unprecedented discovery. It could possibly mean an appeal that is a big decision there. The fact that she's holding it and it'll be in part at least evidentiary—

Benjamin Wittes

--meaning you can call witnesses.

Roger Parloff

Yeah. That's something. There's this CIPA Section 5 rule deadline that I've been talking about for a while. She had set that finally for tomorrow. She pushed that off. It'll be held June 17^th.

Anna Bower

And the original CIPA Section 5 deadline, do you remember what it was?

Roger Parloff

It was November 17^th of 2023. In fact, Jack Smith had asked for September 12^th of 2023, and she said November 15^th. And then on November 3^rd, she lifted it. And the special prosecutor said, no, this is crucial. Can you reset it? And the next day she said, no, I'll reset it after we hold a hearing four months from now on March 1^st. And she held a hearing on March 1^st. And then 40 days after the hearing, she set the date for tomorrow, May 9^th. And then earlier this week, she put it off and she put it off until June 17^th, which, lo and behold, is exactly the date that Trump's lawyers had originally asked for.

Then there is a new flap, which a very resourceful lawyer, Stan Woodward, has come up with. He noticed that some of the boxes that were seized on August 8^th in the search of Mar-a-Lago, the order of the documents, or items, they're not all even documents, it's a jumble of trash. There's news clippings, there's index cards. Then there were classified documents, they have put those in a different place now with placeholders. That the order is not exactly the same as it once was, which is not that surprising because a lot of people have leafed through them. Remember this, including a special master that Judge Cannon appointed before this way back when, right after the search. They are taking the position that's called spoliation of evidence, that the integrity of the evidence has been impaired, and this is a big deal. And I asked you to do a thought experiment and ask, what exactly is the Trump defense that would hinge upon the order of those documents in each box? And then what would the defense be as far as Nauta, Woodward's client, who's not even charged with classified documents? Is it that maybe 102 documents were stuck to various pizza boxes, and he didn't realize it? I don't know what the defense is exactly, but this has become a big problem.

And then finally I will do a self-plug. I did a story relating to another matter, an old matter, relating to Stan Woodward. If you remember right around the time the indictment was handed up, June 8^th, there were accusations made by the defense nine months earlier. Jay Bratt, the sort of the lead, he's with the National Security Division of the Justice Department, that he had threatened Stan Woodward by bringing up a pending judgeship and hinting that if Nauta didn't cooperate, something might happen to that judgeship. Obviously, the prosecutors disagree. It's an article about that now that all of the facts have come out.

I also try to give a feel in that—it's called “The Stanley Woodward Mess”—a feel to what it's like for the special counsel to litigate in front of Judge Cannon, and also a little bit about what to expect in the future from these hearings as the campaign continues because the defense motions to dismiss are really on campaign themes. They are selective and vindictive prosecution. They are prosecutorial misconduct. They are, “I am being picked upon. You don't do this to anybody else but me. Hillary Clinton did the same, Joe Biden.” It's all of that, and we're going to be having hearings as we get further down the line. Originally, he wanted all of these hearings to be held right before the Republican Convention, but of course, that was before he had won all the primaries. Anyway, this is where we're headed in the case.

Benjamin Wittes

I want to actually focus on that, which is that this is the case that is the strongest, in my opinion, in terms of it's a slam dunk. It's very hard to imagine what the defenses look like in this case. The evidence is really powerful, and the law is really clear. And this judge single handedly has managed to turn this into an offensive campaign operation on behalf of Trump. That is, she's going to hold hearings this summer. Not merely not going to have a trial. She's going to have hearings on, as you put it, his major campaign themes. And that strikes me as a pretty striking turnaround, like Jim Jordan and the Weaponization Committee should learn a thing or two from her. She's actually getting done what they set out to do.

And so I want to ask you, at the point at which you're holding a three-day partial evidentiary hearing on matters that the record simply does not support, that dovetails quite nicely with the defendant's campaign themes, at what point do you start getting into areas that Judge Pryor and his colleagues on the Eleventh Circuit are going to scratch their heads about for mandamus purposes?

Roger Parloff

Yeah, I think she'll have to tread carefully. This motion to compel, a lot of it has to do with getting material for the selective and vindictive prosecution claim. And that's not discovery that you can get through a normal Rule 16 discovery motion. There are special standards. They're very high. You need to show X, Y, and Z. I don't think they have. So I think it's going to be another one of these questions where she grants discovery in sort of a modest way so that Smith has to say, is this really worth it? Should I appeal on this? But yes, I think it's definitely an issue where mandamus could come into play.

And like you say, Trump said, this is our highest priority, is the motion to compel because we want to get as much stuff as we can before we go into the other motions. And also, it slows the thing down. But it is a lot like, James Comer. It's like judicial watch. It's a way of, you're digging, let's get emails and take them out of context and say, oh, look how suspicious this is out of context. And that's where we seem to be headed.

Anna Bower

And Roger, I'm curious, to what extent is one of the other purposes of this hearing, in addition to gathering evidence or discovery materials that could relate to the selective and vindictive prosecution claim, to what extent could it also be that there's an element of it in which at this evidentiary hearing they want to bring in some of the equity holders from the intelligence community who they're arguing are part of the prosecution team that might make some of those equity holders really uncomfortable with continuing to work with DOJ on the investigation? And that might deserve some unpacking for people who are unfamiliar with the role of the intelligence community within these types of cases. But yeah, is there any kind of aspect of this that relates to that specifically?

Roger Parloff

Sure, that's a good point. It could be. It's the old fashioned, it's graymail, yeah, a form of graymail that maybe people will get cold feet if she says, yes, we need to speak to these people. That could be. The theory of all of this is that basically each time the prosecutors talk to somebody outside their office, even when they have to subpoena evidence from them, they're saying they've become part of the office. Obviously, they have to have conversations with the intelligence community and NARA. And then and of course every glancing interaction with the Biden White House is the most, I think, that's what they're most interested in delving at.

There was a guy in the White House Office of Records Management, who was a career guy, and in the middle of Trump's administration, he began to notice that there were a ton of boxes in Trump's residence, and he began to worry about, were these being handled correctly? And there was Trump's staff secretary was also apparently worried. Staff secretary is an important guy. Remember Brett Kavanaugh was the staff secretary to George Bush. It's not like some minor position. And so each time NARA wants to talk to this guy in the White House Office of Records Management, they need to involve White House Counsel, and that's Jonathan Su. And that's the way they're building up a case. “Oh, I see Biden is controlling the whole thing,” because White House Counsel Su is involved. I think they want a ton of discovery about him. But you're right, they also want a ton of discovery about the intelligence community. And you could be exactly right, that maybe that's a sort of a graymail thing, another pressure point.

Benjamin Wittes

Alright, we are going to go to audience questions. But before we do, I just want to remind you that we're now taking audience questions. And if you are in this webinar with us, you can be one of the people whose questions we take. There are 11 such people. We're going to get through all of their questions. If you're not in this webinar, why not? And the answer is maybe because you have not yet become a material supporter of Lawfare. And I'm here to tell you that is something that only you can remedy, but that you should remedy it. And your decision to remedy it is subject to your sole and unreviewable discretion. You can accomplish it. You can be the executive branch and the judicial branch of this at the same time. You can accomplish it at lawfairmedia.org/support. Sign up for our Patreon and join us inside this conversation to get your questions answered.

The first question is Mr. Jeff, who asks, who has standing to challenge a presidential self-pardon? Or are the pardon or the pardon of political allies who commit crimes on the president's behalf?

And so the general answer to that question is going to be, of course, nobody quite knows because these things have never happened before. But as a general matter, a third party can't challenge a pardon. The challenge to a pardon can only come from, I suppose, the prosecutor. A pardon does have to be pled. But the same president who issues a pardon is most unlikely to allow his justice department to argue against the validity of a pardon. So I think there's a real justiciability problem with a self-pardon, and for which reason, do not expect Trump not to be able to get away with it if it comes to that. Yeah, Roger.

Roger Parloff

I think the way it might happen is if he were to pardon himself, and I don't think that's what he'd do. I think he would fire Jack Smith and then order his attorney general, Kim Guilfoyle or whoever, to drop, dismiss the indictment. But if he does the self-pardon, I think his attorneys would then, or the prosecutor, would then go to Judge Cannon and attach the pardon and say the case is over. And then it would be up to the judge to say, wait a minute. I don't recognize this. And she might appoint some sort of special counsel of her own to brief this. And I think that's how it might proceed.

Benjamin Wittes

Yeah, so I think that's what happened in the Joe Arpaio case. And there was some amicus objection to the pardon, and it didn't go anywhere because the president's pardon authority is not quite plenary, but basically pretty plenary. And so would it be different in the event that you have a self-pardon, and a district judge was skeptical of that? That could be a little bit different, but you'd have to have a pretty, I don't say this in the pejorative sense, but you'd have to have a pretty activist district judge who's willing to say, I am the one withstanding this pardon has to be pled to me and I don't buy this. Is that impossible? No. But I'm saying if your sense of the preservation of the rule of law comes down to the rejection, the persistence capacity, to reject the self-pardon, you're in a pretty bad place.

Alright. John Hawkinson, the floor is yours.

Audience Member

Thanks, Ben. So I'm wondering if the Manhattan DA's office thinks about risk differently from the rest of us? And I wrote this question before yesterday's Stormy Daniels testimony. Aka, can you walk us through the Sandoval game theory? Four points. A, everyone seems to agree if Trump testifies, it will help the prosecution. B, in order for the DA to cross or confront Trump with many issues, they have to be approved in advance under Sandoval. C, every additional Sandoval approval should discourage Trump from testifying. But D, the DA keeps raising new Sandoval issues. Shouldn't the DA try to limit the number of things that can come in under Sandoval to avoid discouraging Trump from testifying? It doesn't seem to be what they're doing. Every approval decreases the likelihood of Trump testimony. Could it be the DA is raising these things to deliberately overreach and lose their motions so Trump will be emboldened to testify? That sounds crazy. I don't know.

Benjamin Wittes

Alright. I love this question. Tyler, Anna, you have both been in the room for some Sandoval discussions, as have I. What do you guys think? And then I'll give a little bit of sense of my own thinking about this.

Tyler McBrien

I can just give a very brief answer of what I think. My guess is that the DA thinks there's no chance in hell that Trump will testify despite his bluster outside of the courtroom, and so I don't know if his testimony is figuring into their Sandoval gamesmanship and strategy. But I defer to your ideas on this, Anna and Ben. And Roger.

Anna Bower

I defer to Ben. I think Ben should go next, and then I will decide between the two of you whose opinion is more worthy.

Benjamin Wittes

Yeah, I think Tyler actually just nailed it. The calculation of the DA's office is that there is no chance that any competent lawyer would let Trump take the stand. And if Trump is going to take the stand, it's going to be because he overrides the considered views of all of his lawyers. And therefore, why not play it very straight? You're not going to dissuade his lawyers from letting him testify. They already know that is a catastrophic thing to happen. The game theory that you're describing assumes lawyers who are less sentient than Trump actually has. The wild card here is the client himself. And whatever Trump's decision to testify will or will not be, it will not hinge on how many Sandoval disclosures the prosecution makes. So I agree with Tyler in the entirety of what he said.

Anna Bower

Okay. That's no fun because I was going to say who I agreed with, but you agree with each other. And I think I agree, too. Look, whatever Trump decides with regard to his testimony, if he decides to testify, it's not a rational decision. And so, it doesn't really matter what the DA's office does with the Sandoval stuff, because I really just don't think—he keeps saying he is going to testify. I don't think he will. But I really don't think—if he is set on testifying, he's going to do it no matter what they want to raise with him.

Roger Parloff

Can I weigh in? And maybe I shouldn't, but I haven't been in court. And maybe I don't understand the question completely, but I think Judge Merchan has been very careful with the Sandoval rulings, and I think he has to be because if Trump doesn't take the stand, he can appeal on Sandoval. He can say, yeah, it was because of your Sandoval rulings that would have exposed me to all of this irrelevant stuff that I chose not to take the stand, and I could have otherwise provided vital information. And that was half of the Harvey Weinstein ruling. Half of it was Molineux, it was these bad acts that came in. But half of it was the overbroad Sandoval rulings, all of these things that deterred him from testifying. So I think Merchant has been very good about limiting that, but the people have to be very careful not to win too many opportunities to confront him if he takes the stand.

Benjamin Wittes

Yeah, I think that's exactly right. Alright Tiffany, the floor is yours.

Audience Member

I had a question regarding Stormy Daniels’ testimony yesterday. It seems like the defense are trying to move for mistrial. How likely is it that a witness testimony, if being too liberal, would actually derail the trial?

Benjamin Wittes

So Tyler, you were there for this portion of it and the mistrial motion. What do you think?

Tyler McBrien

Sorry to Anna, Ben and I might agree again on this because I did sense that Justice Merchan took that motion and subsequent hearing quite seriously. And I think also his actions during the testimony also showed that he takes quite seriously the potentially prejudicial effects of all this extra detail you're getting from Stormy Daniels’ testimony. At the risk of repeating it from yesterday's podcast, he allowed quite a few objections from the defense, so much so that he actually cut off some of the testimonies to sua sponte. He said he was surprised the defense didn't object more to some of what Stormy Daniels was saying. He then instructed Susan Hoffinger for the prosecution before Stormy Daniels resumed her testimony to tell the witness, to limit her answers to the questions at hand. Susan Hoffinger actually didn't do that at that point. She then did it later.

But I think it's definitely wearing on the judge's nerves here with this testimony getting a bit too out of hand. He's trying to keep it on as short of a leash as possible. But I think the seriousness with which he took the mistrial motion suggests that there is a risk here.

Benjamin Wittes

Yes, I agree with that. I don't think it's at the level of high risk right now, but it's an issue that the judge is taking seriously.

Josh asks, Glenn Kirschner observed that Trump's being held in contempt of court in New York state court technically violates his conditions of pretrial release in other jurisdictions. However, as Juan Merchan said, no one wants to put him in jail. Any thoughts?

Yeah, I have a thought about that, which is, first of all, a federal prosecutor or a state prosecutor in Georgia would have to move. No judge is going to do that on their own. And Jack Smith could, I suppose, walk into court in the District of Columbia or in South Florida where he would not have a receptive audience and say, hey, the man is in violation of these terms of pretrial release. I think as a prudential matter, that would not be something that Jack Smith would be likely to do. And if he doesn't do it, I can't imagine that Judge Tanya Chutkan is going to do that on her own motion.

But the sense in which the point is significant is that, in the event that Trump were to do something absolutely outrageous, it does put the ability to do that into the hands of federal prosecutors, and for that matter, for Georgia state prosecutors. And so, it gives them a theoretical weapon that they could use under the right circumstances. Roger, Anna, do you think any of that's wrong?

Roger Parloff

No, I'll defer.

Benjamin Wittes

Alright let's go to Eric Berm.

Audience Member

He kinda already answered this, but where, with the new schedule, do you think they're going to do the jump on a writ of mandamus and for removal?

Benjamin Wittes

Yeah, so Anonymous Attendee has an even pithier version of the same question, which is, now can Jack Smith get a writ of mandamus? Roger, you're our Jack Smith, Aileen Cannon, writ of mandamus expert. What do you think?

Roger Parloff

I don't think so. I don't see it right now. It's conceivable if her motion to compel rulings were really broad, that might be something Jack Smith might try to appeal, especially if they relate to the vindictive and selective prosecution motion, if it's evidence being gathered to pursue those motions that might be particularly mandamusable. But I don't know, things look pretty bleak right now.

Benjamin Wittes

So I would only flag one other thing in the mandamus department, which is that eventually holding hearings and compelling people to testify can itself be, to the extent that it's completely lawless, a basis for a writ of mandamus to prevent, for example, somebody, an intelligence community person from being, dragged down to Florida. I think that's actually an area of potential real vulnerability for her.

Anonymous Attendee has a very important question. Can a defendant be held in contempt for farting? And if so, under what circumstances? Too much, too loud, too funky. What if it appears to be strategic and designed to interrupt?

I confess I do not know the law of contempt as applied to flatulence. Do any of you?

Anna Bower

I am not aware of any court order that is prohibiting flatulence in a proceeding. But look, I've been in the nosebleeds a few rows back from Trump, so I just can't speak to this. But yeah, that's all. Got nothing.

Benjamin Wittes

Alright, last question is once again from Tiffany. Did Trump at all prevent the election of a person by unlawful means? This is in reference to the New York election statute. So this is for Tyler. What precisely, by unlawful means, what precisely will count as unlawful means in this case? So I'm going to turn this over to Tyler, but remember, you don't have to have completed the offense. You merely have to have falsified the records intending to commit an offense.

Anna Bower

And I think the statute also uses the term “promote or prevent,” right?

Benjamin Wittes

Yes. It's, “conspiring to promote or prevent the election of any person to public office by unlawful means.” Tyler, what do we make of this?

Tyler McBrien

This one I'll again redirect people back to Quinta's piece about charting the legal theory behind the prosecution's case. I think via unlawful means here, Quinta put it well when she said they loop back around to the other object offenses. So I think the other object offenses, I believe they're arguing that that's the unlawful means. So it's actually, I think, quite a smart move to focus on 17-152 as their primary object offense because it also encompasses the other two legal theories as well, being the unlawful means, but please correct me if I'm wrong here, Roger Anna, Ben.

Roger Parloff

Yeah, I think that's right. And I think the key ones are the election violations. And for instance, for Cohen to pay 130,000 to Stormy Daniels, and correct me if I'm wrong, but it’s a campaign contribution at that point and it's way over the limit. So that's one of the violations. And of course, he has no intention of disclosing it. And Trump is aiding and abetting that. I think that's the crucial one. There may also be the corporation gets involved. It's way over the corporation's limit. And so, I think it goes like that.

Benjamin Wittes

I think that's right. And I also think it's one of the reasons they want to keep the primary statute a New York State statute is because it means that this can all be interpreted in the context of the New York system, rather than being subject to a whole lot of federal election commissioners or former federal election commissioners saying what they think federal law means.

Tyler McBrien

I think they could also include the tax fraud as unlawful means, right? So the bumping it up, the doubling.

Roger Parloff

Definitely. Definitely. The theory there is that you have to be honest when you file your tax form. It's a little unusual here because he's exaggerating his income. He's not minimizing his income. He's overstating his income, but he's still providing inaccurate information and you have to provide accurate information under state tax law.

Benjamin Wittes

With that important admonition for you all, in case you were thinking of providing inaccurate tax information to New York state authorities this week, we are going to leave it there. We are going to be back next week with Trump Trials and Tribulations again on Wednesday. I think we are going to move our time to four o'clock Wednesday afternoon, starting next week. We will be back tomorrow. Except I won't because I'll be around and about, but others will be back tomorrow for Trump Trials, New York trials dispatch, at 5:30. And now we gotta go because Tyler and Anna and I have to write our dispatch for the last two days to keep you guys, very thirsty content people, sated.

And so you are all great Americans, become a material supporter of Lawfare at Lawfaremedia.org/support. If you're watching on YouTube and you just want to send us a little bit of support, you don't want to really do the whole material supporter thing, but you want to say, hey, this was a pretty substantive discussion, buy yourselves a cup of coffee. There's that donate button on YouTube. There's also our give button. There's so many ways you can support Lawfare. And we really need it. Because we're just a shoestring operation here trying to compete with the big boys and kicking their asses every day. We will be back. We will see you soon.

Be well.