Lawfare Daily, Trump's Trials and Tribulations: What Happens Now?

[Intro]

Anna Bower: How does all of this interact with the possibility that Jack Smith could write a final report that is, you know, at the discretion of Merrick Garland, released to the public versus waiting and then not being able to issue a final report on these cases because it's then in the, in discretion of an AG that is a Trump administration AG.

Benjamin Wittes: It's the Lawfare Podcast, Trump's Trials and Tribulations. I'm Benjamin Wittes, Editor-in-Chief of Lawfare with Lawfare Senior Editors Scott R. Anderson, Anna Bauer, and Roger Parloff.

Scott R. Anderson: But I think on a political basis, on a kind of equitable basis, the most likely outcome is they're going to reach some sort of agreement that this should go away, at least in regards to Trump.

Benjamin Wittes: In a live recording on November 7th, we discussed how Donald Trump winning the 2024 presidential election will impact the criminal cases against him. Spoiler alert: they're coming to an end. We talked about his ability to pardon his codefendants and we took audience questions on the whole story.

Anna Bower: But to what extent do you think a judge in this situation is thinking to himself, if I go ahead and sentence but defer it to after the president-elect's term, it almost incentivizes or encourages, you know, maybe Trump wanting to extend his presidency.

[Main Podcast]

Benjamin Wittes: Hey folks, welcome to one of the very last times you will see me coming to you from the Mar-a-Lago bathroom studio with Trump Trials and Tribulations, because since the last Trump Trials and Tribulations, Trump has stopped tribulating. He has been elected president of the United States again, and that means his trials and tribulations are almost over, including and especially the one from the Mar-a-Lago bathroom studio.

Joining me today, Lawfare Senior Editor Scott Anderson, Anna Bower and Roger Parloff joining from various studios around this fair metropolis. We're going to talk today about the end of the Trump trials which is now hard upon us in one way or another. And we're going to talk about what the mechanisms for wind down look like.

Before we do, have a couple of things to say about this one of which is the subject of my column that will go live just as soon as we finish today. I have a couple tiny edits to make on it. But I want to say that I began this year thinking that we were going to cover four Trump trials. We covered one. And I really thought that these trials were going to play a role in protecting American democracy from the re-rise of Donald Trump. And they did not.

And I want to say that I am, as the column will reflect, I am disappointed by that and a little bit, more than a little bit confused by it, to be honest. The criminal justice system has three basic purposes, which is number one to punish crimes. It didn't do that. Number two, to deter and incapacitate future crimes. Clearly didn't incapacitate future crimes and I suspect it didn't deter them. And number three, it is to do it all in a fashion that is transparent and persuasive to the public. And while it did a certain amount of the transparency part, the persuasion is pretty hard to see. More people voted for Donald Trump on Tuesday than in either of his previous elections, both as an absolute matter and as a percentage. And, you know, those were previous years in which he did not have any pending indictments, much less completed criminal convictions.

And so I want to start out just by saying, and I'll leave the rest to the column, that I do think there is a really a lot of soul searching that those of us who think about and write about the criminal justice system and its virtues and vices need to do about, in terms of why it was almost completely ineffective here, what values it did and did not promote. And I think the answers to those questions, which I will be spending a lot of time thinking about over the next few years are, at least on first inspection, very troubling.

So, before we go on. Roger, Scott, Anna, do any of you have thoughts on the biggest big picture question, which is, hey, whatever happened to the Trump trials? Yeah, Scott, go ahead.

Scott R. Anderson: You know, the one thing I'll say is that I don't think we should entirely give up on criminal justice as a means of accountability, because there was a lot of legal action around a lot of people who were involved in these efforts upon which the problematic schemes and activities hinged that did have major consequences.

Now, some of those may go away with a pardon or commutation that may be coming down the pike, although we'll have to wait and see to know 100 percent for sure, because I think that's going to be a little politically problematic. It's going to come with its own political costs. But I think we've seen enough people go through the criminal justice process, plea out, come back and say they were lied to, they were manipulated, a lot of information come out prominently about a lot of activities that really clarified the public record and underscore that there are real costs for people in doing this and betrayals of trust in at least certain communities, even if they didn't carry the day in a presidential election, that is about a million things and this, not just this, as is every presidential election.

So just as this could not, it should not, and will never dictate the outcome of a presidential election, I don't think we should let a presidential election's outcome dictate the value of a lot of these activities, or their lasting impact.

If there was a mistake made or a thing that was unexpectedly challenging, it's the fact that targeting the president himself is even more legally difficult than we thought it was going to be. I don't think we knew that going in. I think that came from a very, primarily, now, from a really unorthodox Supreme Court decision that took a lot of people by surprise, including me, whose full implications we're still trying to reconcile and figure out. I'm not sure it's as broad as that but it is substantial. And the timeframe to figuring out those issues, we always knew was going to be a problem, and frankly, we were worried about that when a lot of these prosecutions started.

But I think there's still accountability to be had here in play and I still think a lot of these processes were worth pursuing just to make clear there are processes in place here and underscore and put on the public record exactly what people did that was so unlawful and wrong.

Benjamin Wittes: Roger, do you have thoughts on this?

Roger Parloff: A couple. I think it’s possible that, you know, he may be getting away with these four indictments because the price of groceries went up, and the Biden administration did not deal with the immigration problem.

Benjamin Wittes: Yeah, and there are some transgender athletes I hear.

Roger Parloff: Yeah, so. And all along you know, I have a friend who's more who is more tapped into political analysis, and he was always telling me nobody cares about these cases.

But I was never in this to affect the election. I was in this because I believe in justice, and when somebody commits a heinous crime, and I'm not counting New York, I'm talking about what happened on January 6th. And to some extent, the classified documents, the obstruction of justice, the willful obstruction of justice. There ought to be a reckoning.

And it's very easy from a 30,000 foot level to lie and say, I'm innocent, it's all Biden. It's a politically motivated trial. And to get past that, you need to almost be a juror and be steeped in and see, oh, this is real. And that's especially true for half the audience is watching Fox and, you know, they're not gonna, you know, they boycotted the January 6th committee hearings. I don't really know how they handled, would have handled, you know, these criminal cases.

But just like, at a certain point he was very skillful at turning himself into the victim and this was what Clinton, Bill Clinton did effectively in the when Ken Starr was going after him too, the, his, you know, his polls went up.

So I guess those are my reactions. That said, it is hard to feel like that this isn't a personal rebuke to everything I've been doing for three years. And so, you know, I do have to process that too.

Benjamin Wittes: Yeah, so, Yeah, I definitely feel it as a rebuke to all of the work that we have been doing as a collective. Anna?

Anna Bower: Yeah, I, look, I have a lot of thoughts about this and I don't want to go into much detail because a lot of it is, like, very personal to me because I grew up in a community and still spend most of my time in a community that most people in my family and friends voted for Trump. And so I think I'm a little bit uniquely positioned to kind of understand what it was that they were paying attention to, and I think Roger is right. They weren't paying attention to these trials. They don't for the most part know what was happening in these trials.

And it does feel a little bit like a rebuke to the reporters who have, and legal analysts and the work that we've been doing, but also that other media organizations have spent so much time reporting on to try to get facts and truth out to the world about what it is that is happening in these courtrooms. It really just feels like it ultimately did not translate to people in terms of getting people to understand why it matters that all of these different discreet cases were happening and what the conduct at issue was, and why that conduct is troubling it.

Whether or not it's criminal, it is like I said when we were covering the New York trial. I don't think that you could sit through that trial and come out of it thinking this is a man who should be president of the United States, regardless of whether you think that it is, ultimately amounts to criminal conduct. Because it really is, it’s the kind of thing that really you just kind of wonder, how is it that we could have reported better or delivered truth better.

But, and so I do agree with Ben and Roger that it does feel a little bit like a rebuke, but in the end, I ultimately think that we did what we needed to do, which is go and report the facts and the truth and history will be the judge. And so, I don't know. I will have more thoughts, I'm sure, in the weeks and months to come, but for now, that's kind of my initial take.

Benjamin Wittes: All right. Let us turn to the mechanics. Scott, as you need to go relatively soon, I'm going to start with you. Talk us through, you and I wrote a very hypothetical piece about these scenarios about a year ago. So talk us through the mechanics of where we are, and we have one case at the federal level anyway that has been dismissed already, but there's a pending appeal that's, I think, supposed to be argued in December. There's another case that has been up and down the appellate ladder and is now back in the district court sorting through immunity stuff.

What happens, what are the mechanisms by which, if we assume that these cases are going away, if only because Trump can order his new attorney general to dismiss them, what are the possible mechanisms by which they go away and which do you think are the most likely?

Scott R. Anderson: So the thing to bear in mind, I think, to take a step back before we dig into the details of these cases is to establish some of the core principles that we think will inform the decision making of both prosecutors and judges in these different cases, because we should bear in mind these are entirely unprecedented.

No one has ever encountered a situation like this. There is no case law. It really is a question of how do we balance different legal equities. I think there are kind of two prime constitutional equities in play here, maybe three actually.

One is the idea of there are no additional qualifications for the office of the presidency. This is a weird one, but it's actually pretty important here. Constitution lays out certain core qualifications you must meet to be president. That is a pretty low bar. You have to be a certain age. You have to be born in the United States. There's one other one I can't remember and that's it. It's very basic.

And the Supreme Court has indicated in decisions about similar qualifications lists for members of Congress that these qualifications lists is exclusive. It cannot be expanded by Congress or anybody else. In fact, you, if you meet these, then you are eligible to be president, if elected, and eligible to stand for president as a candidate and actually infringing on that could even interfere with voters’ First Amendment rights. That means that criminals can be president. People have been convicted, people have been indicted can be president because that is not on that list of being disqualifications and Congress can't add it to that.

So then you have to say, except, well, that means Donald Trump will be president on January 20th, 2025. And the federal government, the federal Constitution is premised on there being a functional operational president. Then you have to say, well, how much does that legal principle stand versus other legal principles?

We have the separation of powers and the rule of law argument that here are kind of blended cause really we're talking about enforcement of statutes passed by Congress, but by the executive branch. And there, the Justice Department has taken a particular approach to this issue and has said for a long time, it's a long standing policy position, a lot of people debate its veracity. That's never been upheld by court, that sitting presidents cannot be prosecuted by the Justice Department.

So that alone does away with probably the two federal prosecutions that have come forward, at least in as far as they relate to former President and future President Trump. We already are getting reports that Jack Smith and the Justice Department are communicating about how to wind up these cases, even before Trump gets into office.

Then there are probably strategic reasons for that. They may want to have some opportunities to make sure, for example, that these are being dismissed without prejudice, so they could be brought again if, for some reason, Trump were impeached and left office or something. Maybe they're trying to figure out some approach to statute of limitations, some argument they should be told. Although I'm not super optimistic, I haven't heard a good argument that those arguments are out there, but maybe there's something.  There's other contexts where you hear about where, you know, you see different equitable tolling principles that can be applied.

And then there also is a report the special counsel is supposed to generate, likely going to generate. It's going to go to the attorney general and the attorney general then decides what to do with it, give it to Congress, et cetera, released publicly. And we want, probably the people who are worried about accountability for Donald Trump want that attorney general to be Merrick Garland, not whoever Trump appoints.

So there'll be a drive to get these cases wrapped up and that report finished before Garland leaves office, presumably on January 20th 11:59 am. So that deals with the two federal cases in Florida and in D.C., as they relate to Trump.

There are two codefendants in Florida. There's no presumption that those cases will go away. I don't think the Justice Department would be eager to let them go away. But the, of course, there's a potential for a pardon.

There is also a tricky position we can circle back to, which I'll let Anna and Roger get into about a issue about the Appointments Clause and how to handle the fact that the district court did away with the case in Florida on a very specious constitutional argument that the Justice Department does not like and is going to want to find a way to push back at if they can, even if they are trying to wrap up the actual underlying case, that itself is going to be a trick, but I suspect there are ways to work around that.

Benjamin Wittes: Just out of curiosity, couldn't you do that by agreement by the parties to the Justice Department will dismiss the appeal and the parties will jointly move Judge Cannon to vacate her opinion and dismiss the case?

Scott R. Anderson: You absolutely could. You know, I think there's two counter-pressures to this that come up. A) it's a district court opinion, so it's not binding anyway. So it doesn't really do that much for you. Like, it sits out there. If it's still on the docket, it still hasn't, doesn't have a thing saying vacated on it. Like, maybe it has a little more persuasive influence. But, you know, you don't really, it's still hanging out there and nobody has decided. Nobody else is persuaded by it.

The other thing is they may want, perhaps for related reasons, a stronger repudiation of it. So they, I mean, I think in a perfect universe, they would be able to appeal it, get the appeal resolved, and then deal with the underlying district court thing. But the timing's not going to allow for that. So I think that's the most likely outcome, is that they'll try and get the district court opinion vacated to some degree, if the parties agree, if the circuit agrees, or the Eleventh Circuit agrees, excuse me, and you know, I, Judge Cannon agrees. Like, I think everyone will be on board with that solution, that seems likely to me.

But it may not be totally satisfying, like DOJ may be trying to think, well, are there other ways we could go for expedited appeal? We have a few months, maybe we can resolve this issue and then take that same stuff. So they could still moot it out later, especially if they got an appellate opinion they didn't like. That would be binding precedent, but I think they'd rather get the precedent to clarify this argument is completely specious.

Just to cover the state stuff before I circle, we circle back on some of these nitty gritty issues. The two state cases right now present different issues. New York case, of course, is going to, getting ready for sentencing once they resolve the immunity appeals issue.

That raises a different set of principles, because remember, what you're worried about here, and here I should say with the federalism legal principle. How much does the state rights balance against the federal supremacy of federal law and the need for a president under federal law. You can imagine lots of situations where a sentence could be issued that President Trump could serve that would be consistent with him acting as president.

Home confinement, penalties, fines, or just delaying the actual service of a serving of a sentence or the issuance of a sentence. So I'm not sure the New York case, if it survives this appeal question about immunity, something we should again circle back on, goes away clearly. Although there will, certainly will be pressure to adopt sentence terms that are compatible with Trump acting as president.

In the Georgia case, we're not close to actually bringing this stuff to trial. I don't think there's a clear anything that's going to compel the state court judge or the prosecutors to get rid of this case against Trump. Maybe they can motion, maybe Trump can motion, take it to federal court, argue that there is a presidential immunity issue, you know, try and win that issue.

But I think on a political basis, on a kind of equitable basis, they're gonna, the most likely outcome is they're going to reach some sort of agreement that this should go away, at least in regards to Trump. All of the other codefendants will still be on the hook. But we don't know. That really depends on the lawyers involved, what they're willing to agree to, what the state's willing to do, and other officials. That's the biggest open legal question to me.

And it could arise in the New York case too, of course, if there is an appeal and New York prosecutors have to face retrying it, then they're in a similar position as Georgia as well. So there is an open question there. I think the likelihood is more for political than legal reasons and kind of equitable reasons, they go away voluntarily by action of the prosecutors or perhaps on a state court decision on, you know, Trump's initiative or the Justice Department when they intervene on his behalf after January 20th, or maybe even before January 20th.

But that's kind of, a little bit of the open question. But the one thing I think we know for sure is they're not going to go to trial while he's in the White House. It's very hard to imagine a criminal trial consistent with both his rights as a criminal defendant and the office of the presidency and that his duties to serve there. So I think it's very unlikely they go to trial while he's in the White House.

Benjamin Wittes: All right, so let's, with that as kind of prologue, let's deal with each of the cases on their own. Let's start with the federal cases. I think they're not differently situated from one another except that one has this pending appeal. So Roger, is your assumption that Merrick Garland and Jack Smith are on the phone yesterday saying, how do we wrap this up?

It's obviously a longstanding position of the Justice Department that you can't prosecute a sitting president. Trump will clearly order the cases dismissed anyway, so it's not like you can simply hold them in abeyance for four years because they won't survive the four years. So you may as well wrap them up on your own terms.

Do you think the analysis is more complicated than that, or is that the conversation going on between the Justice Department and the special counsel's office?

Roger Parloff: I think it's something like that. And there's been reporting to the effect that these conversations are going on. I've never heard the term “wind down” before in the context of a criminal case. So it's not like-

Benjamin Wittes: It’s very polite word for dismiss.

Roger Parloff: Yeah. And there is this issue about the Judge Cannon's ruling out there. I have just nuances of difference. I agree with Scott that it really doesn't make a lot of difference whether it's out there or not, because it's been copied and you can vacate it. And it will have the same effect you know, it's just persuade, another judge in the Southern District of Florida is free to disregard it.

It's not binding on anyone. Still, it's out there and like he says, they would like to have it rebuked. The problem with that is that it may get rebuked at the 11th Circuit. I don't know what happens at the Supreme Court. And also I just don't see a mechanism for keeping it. I don't see. I don't see the Trump lawyers agreeing to write that letter. They, there's no leverage over them. You know, they can wait it out and then dismiss it.

And I don't see Judge Cannon agreeing it. It's her most, she's, it's a thing she's most proud of in the world probably. It's her ticket to greatness, in her world. And so, and I, you know, there is a rule that you see sometimes, you know, where something's on appeal to the Supreme Court and then somebody dies and where it gets mooted out through no one's fault. Then you would vacate the circuit court opinion and the district court opinion because it.

But here, if it's somebody like the government is dismissing it and then saying, we also want the opinion removed, that looks like you're manipulating the law and they don't usually permit that. So I don't think they're going to succeed in erasing it.

Benjamin Wittes: What about if they asked the 11th Circuit, we're going to dismiss this case anyway. This is a damaging precedent and it's obviously wrong, at least under current Supreme Court law. Is there any chance the 11th Circuit would return it to the, would vacate the dismissal on the understanding that the Justice Department is going to move to dismiss without a reason or for a different reason?

Roger Parloff: I guess, I guess, they could on their own. I don't, it would almost be a ruling. It would be a quasi-ruling on the merits because I don't think there's a, I don't think it falls under the typical doctrines of, you know, something became moot against the will of the petitioner. I’m sure they have the power.

Benjamin Wittes: Right. And in a mootness case, you often vacate the underlying opinion, but that's more in a civil context usually.

Roger Parloff: Well, it could, it could be criminal but it would have to be truly beyond the power of the party that wants to get rid of the ruling.

Benjamin Wittes: Right. All right, so let's talk about D.C. D.C. strikes me as simpler, right? The Justice Department has gotten all of these facts into the record through this litigation over immunity. Any reason why the resolution of this wouldn't simply be, you know, a one sentence unopposed motion from the prosecutor, you know, in light of the fact that the defendant is now president of the, president-elect. The Justice Department, the, you know, the United States moves to, you know, dismiss the case?

Roger Parloff: I think it's a little more than a one sentence thing, I think. You know, there is this, the motion is a motion to dismiss under 48(a), and you have to get leave of court. So, you do want to tell the court why it should do this and why it's not scummy.

While I mention this, you might think, well, why don't we fight this then if it requires leave of court, why not leave it in for the next administration, then have Chutkan fight? And it is just partly a logistics thing, but there's a lot of law that she has very minimal power to overcome the prosecutor's decision to dismiss. And I don't think anyone want, thinks they could win going that route. There's an easy way to do this and there's a hard way to do this, you know, and I don't think they're going to try the hard way.

Benjamin Wittes: All right. So, let's go from there to Georgia, which, as we're going to save the most the most fun one for last. But Anna, Georgia never got very far, right? So, and it's now up at the Georgia Court of Appeals, as well as at the 11th, the Supreme Court on the removal matter, But all on these collateral questions like Fani Willis's disqualification.

So what do you imagine to be, but, you know, unlike the federal cases, it doesn't necessarily have to be dropped. So how do you imagine the next three months in Georgia playing out?

Anna Bower: Yeah, so just to clarify for folks why the state case in Georgia doesn't necessarily have to be dropped. A) the DOJ policy that prohibits the prosecution of a sitting president doesn't apply to a state prosecutor like Fani Willis. And then B) the president can't pardon state crimes. It only applies to federal crimes. The pardon power does. So Trump doesn't have as many options for basically getting rid of the case as he does in the federal cases. But there's still a lot of issues here that we're looking at in Georgia.

So, Ben, you mentioned that the case is already before the Georgia Court of Appeals on that disqualification issue, that's not expected to be decided until after, potentially after Trump is already inaugurated as president. Steve Sadow, Trump's counsel in Georgia has already indicated even a year ago in an argument that he would seek to have the case stayed or that there was some kind of motion that would be forthcoming if Trump was elected president, to get the case at least put on pause until 2029.

So, several years until Trump is out of office, that is even if they get beyond the disqualification challenge that is before—

Benjamin Wittes: And the immunity stuff.

Anna Bower: And the immunity, and that, in fact, I was getting to that.

Benjamin Wittes: We haven't even begun to decide how the Supreme Court's immunity decision plays out in all this.

Anna Bower: Exactly, and so that is all you would first have presumably a pause in the case for several years. And then 2029 rolls around and Judge McAfee, if he's still even on the bench in Portland County. 

Benjamin Wittes: He won't be a Boy Wonder anymore.

Anna Bower: He won't be Boy Wonder by that point. But he would then have to deal with the presidential immunity issue. That would have to go up on appeal to the Supreme Court. At that point, who knows what the composition of that of the Court would be, but it presumably would be just as friendly to Trump, if not more, than it is now. And so there's a lot of issues here, in terms of, there's going to at least be a delay to 2029, as to Trump's case.

Now, the other co defendants, we've talked before on Trump Trials and Tribulations about how it's a little bit unclear. There are some people who think that maybe the presidential immunity decision would apply to evidence that is being introduced as to codefendants or individuals who worked for the president were inferior officers during Trump's presidency. So there's that question, but then, you know, there's also the question of is it just simply the case that these folks need to be severed out? And then their cases can proceed if Fani Willis is not disqualified.

And so there's kind of all of that issue as well. I do think that probably the co-defendant cases could proceed if she's able to stay on the case. I personally do not see any reason why some of the Supreme Court's reasoning in the presidential immunity decision would apply to people like Mark Meadows, to people like Jeffrey Clark. But again, who, we've been surprised by the Supreme Court so who knows?

And then finally, I will add that there's a question here about what Fani Willis is going to be willing to do and agree to, because if people remember a few months back when Nathan Wade went on CNN, when he was doing his kind of, one might call it a media tour, he was doing a lot of media appearances in the wake of his resignation as a special prosecutor in Fulton County.

And during one of those interviews with CNN's Caitlin Collins, he mentioned something to the effect of, you know, there would be nothing that could stop the prosecution, even if Trump is elected president. He kind of indicated that maybe the Fulton County District Attorney's office, though he was no longer a part of that office anymore, might continue to fight to prosecute Trump even during his presidency. I think that's probably incredibly unlikely that the Supreme Court would ultimately allow that. But-

Benjamin Wittes: And when Anna says unlikely, what she means is .00000000 percent chance.

Anna Bower: Yes, I always hedge my bets. So it's, I say incredibly unlikely, meaning virtually certain.

Benjamin Wittes: Zero chance!

Anna Bower: Yes. It's virtually certain that the Supreme Court would not allow a state prosecutor to prosecute a sitting president while he's in office. And I think that it's, you know, Fani Willis on the one hand, I think her office probably knows that and probably knows that it should seek a severance and a stay of that case now that Trump has been elected again.

At the same time, everything that we know about Fani Willis is that one of her greatest strengths, but also sometimes one of her greatest weaknesses as a prosecutor is that she, you know, is someone who is a little bit, what's the word I'm looking for? I guess, hardheaded, you know, she-

Benjamin Wittes: Brash and arrogant.

Anna Bower: That is the less charitable way of putting it, yes, Ben.

Benjamin Wittes: Yeah, she's made some boneheaded decisions in this case and defended them aggressively.

Anna Bower: Yeah she's, you know, she can make some bold, aggressive decisions about what it is she wants to do in these cases. And so, who knows what she may very well try to keep this prosecution going and not herself, you know, say we're seeking a stay until 2029.

Benjamin Wittes: All right. So, let me break down a lot of things that Anna just said into a—

Anna Bower: Sorry, that was a lot!

Benjamin Wittes: Yeah, into what I think is a simple checklist for the Georgia case to proceed the following things would all have to happen. Number one, we have to wait until 2029, because at a minimum Steve Sadow is going to get his motion to put the whole thing on deep freeze.

Number two, the Georgia Court of Appeals would have to uphold Boy Wonder's ruling not disqualifying Fani Willis, notwithstanding the odor of mendacity.

Number three, on remand four and a half years, four years and three months from now, Judge McAfee would have to go through the process that Judge Chutkan has been going through of trying to winnow the stuff that's going to be protected by the Supreme Court, it would have to, by the immunity doctrine. It would have to go all the way up to the Supreme Court and back down. And then you could have a trial. Right? At least those, that set of things would all have to happen and Donald Trump would have to still be alive.

Anna Bower: He would have to still be alive. And then also, you know, will Fani Willis even be in office then? Will the political appetite be there to, you know, keep this sprawling prosecution going? I mean, at that point, who knows if it will be sprawling because we might've had some co-defendant trials by then. But you know, there's a lot of what ifs up in the air.

And then, you know, I, Roger has reminded me in the chat that the, tomorrow is the conference on the cert petition for Meadows’ removal case. And if the Supreme Court takes up that removal case, we may very well have more insight into what the Supreme Court is thinking about how the immunity decision could apply to people who worked for the president as federal officers. So, or as people who purport to be federal officers. So we will see.

Benjamin Wittes: All right. And now to New York, where for those who don't remember, the status of the case is that Trump has been convicted by a jury on, I believe, 33 counts of fraudulent business records. He has trial memoranda, or sentencing memorandums have been submitted.

However, then the Supreme Court turned around and issued the immunity decision. And Trump filed a quite plausible argument that there is some effect on his case, mostly as a result of Hope Hicks’ testimony and that the conviction, there has to be a mistrial in light of that, or he wants it dismissed entirely, but that won't happen. So, Roger, we are expecting a decision on that question, i.e., whether we're going to sentencing or whether we're declaring a mistrial because of immunity on the 12th. Is that right?

Roger Parloff: That's right. Yeah.

Benjamin Wittes: And we have, we've had no signals from Justice Merchan about where he's heading in that direction, right?

Roger Parloff: No. He set that for November 12th and if necessary, the sentencing would then be four days later, November 16th. CNN's Paula Reid has reported that they will, that Trump will file a motion to not go forward with any of that. And apparently on the theory that he's a president-elect, is basically the same as the president. And so he shouldn't, there should be no criminal trial. He should be subject to no criminal process beginning now. I don't think that's going to work.

Of course, he's called himself president for the past four years. So if he calls himself president-elect, it's a demotion, really. But I don't think they're going to buy this. But I guess the question is, can he work that into a mandamus, you know, work that into an Article 78. Can he create appeals?

Benjamin Wittes: Right, and also, if you're Justice Merchan and you were a little bit on the fence about the impact of the immunity decision. This does seem to create a real incentive to, say, break the tie in favor of Trump, right? Because if you rule that the immunity decision requires a new trial, there's not going to be a new trial.

And then the case either goes into deep freeze à la Georgia, or it, the prosecution just walks away from it. But if you'd go to sentencing, then you have to have a confrontation over the month of November, second half of November and December about the contours of your ability to sentence, what sentences are and aren't lawful under the circumstances, none of which we have any idea what the answer to is, right?

Roger Parloff: Well, I mean, I don't think there's much of a problem with, if he says, okay I'm sentencing you to five months in prison, but I will stay it until A) appeals are done and B) until you get out of the White House. I don't really see a problem with that. It’s very poss—

Benjamin Wittes: What if he gives him, what if he gives him home confinement in the White House and Air Force One and any other location his, the needs of the presidency may require? But no Bedminster and no Mar a Lago.

Roger Parloff: No, yeah, no, he can't do that. But you know, I mean, white collar judges routinely give people and even blue collar sometimes, I mean, judges routinely give white collar defendants or people that are all, that are out of jail, time to wind up their affairs and pack up their bags and, you know, a month, and there's no reason. Here there's a, you know, perfectly, there's a super reason for putting it off until January, late January 2029.

Benjamin Wittes: It seems to me that there's a lot hangs on whether Justice Merchan, I mean, assuming he doesn't think that immunity applies, which, by the way, he may. And he would not be crazy to think that, given a variety of features of the Supreme Court opinion and the way this litigation played out in his court.

But assuming he doesn't think that applies, it seems to me a lot of it hangs on how he, how comfortable he is giving a slap on the wrist sentence, or a highly deferred sentence. You know, so like, let's say normal sentence for this sort of thing would be six months in jail. If you're willing to say, as you propose, six months in jail after you're no longer in the White House and after all appeals are exhausted, you can diffuse the thing that way.

The appeals will go on, maybe be deferred until after Trump leaves office, maybe go on while he's in office. But if you're, similarly, if you're willing to say, I sentence you to four years, but I'm suspending all of it in deference to the duties of the presidency, right? You can make the problem go away.

But if you're, you know, a judge who is appalled by the conduct that was alleged and proven in your court and by the unrepentant nature of the defendant in your court, including toward you, but also toward witnesses, also toward. And you actually want to give a sentence that is, that relates to what went on in your courtroom then it seems to me it becomes a lot harder.

And I don't think he's got a lot of wiggle room, but I do wonder if the, you know, you, like the aggressive thing may be 30 days in prison, in jail, but it starts now. And make the appellate court say, no, which they will and I've, and they certainly should but it would be a statement on the part of the district judge.

Roger Parloff: Well, I think he's gonna give the sentence that he thinks this warrants and I think it's in, to me I know I hear people say oh, he's a first offender. It's nonviolent. But no I think it's inconceivable he would not give time given the, what you've said and given that, you know, first offender is totally you know, formalistic in this context.

You know, this is somebody who's just cut a swath through, and I'm just talking about New York, you know, the record there of the persistent commercial fraud. The, you know, his two of his companies convicted of a 15 year criminal tax fraud. You know, this is, you know, the thing that comes to mind is really criminal enterprise and I don't see, he's got to give five, six, I mean, these aren't huge numbers, I don't know if he wants to give state prison time, that's any over one, one year, it becomes one to three, or one and a third to four. I don't know if he's going to do that, but he's got to give time. And so I think he's got to postpone that till after.

Anna Bower: So I have a question on this though. I mean, look, the 22nd Amendment exists. We have term limits on the presidency. Trump will be a second term president. But to what extent do you think a judge in this situation is thinking to himself, if I go ahead and sentence but defer it to after the president-elect’s term, it almost incentivizes or encourages you know, maybe, Trump wanting to extend his presidency. I, again, I think that's really unlikely. And I, and-

Benjamin Wittes: And it's not really a matter before the court.

Anna Bower: I know, but I just, I truly like, I think that there's a lot of considerations here

Benjamin Wittes: Anna, it's bad incentives all the way down.

All right. We are going to turn to audience questions. And the first one which came in before. Oh, where did it go? Before recording, from Chris: “Could Smith request that Judge Chutkan dismiss the case without prejudice and with equitable tolling of the statute of limitations because the defendant will be unable to attend trial for the next four years?”

So, for those who don't understand that lingo, the equitable tolling means on the basis of, you know, normally the statute of limitations would run, so if you dismissed it even without prejudice, you would have no opportunity to bring the case again. But the question here is whether you could do this on a on the basis of the judge's sort of equitable power to say, all right, we're going to waive the statute of limitations here.

I think, but I'm not sure, and I would have to research this, that the answer is no. At least not with the, you know, that the defendant would have the ability later on to say, you know, I'm sorry, I was elected president, time kept going on, and there was no case pending. And so you could try to do it, but whether a latter court would treat that as actually tolled or not is a different question. Both of you have actually probably more knowledge of this than I do. Do we, what do you guys think?

Roger Parloff: I don't think you can lock it in now. It would be up to the judge at the other end whether that really works. But I just think it's, there's also political issues about the guy starting his term. Do you want this?

I think if you do it that way, he will then dismiss it through his attorney general, or he will try to pardon himself. It'll be messy. And you know, if you try to keep it going. Plus, I just think there's no appetite to it. You know, the people have spoken, maybe they were speaking about a different subject. Maybe they were speaking about prices and immigration, but I think it's, I just don't think they're going to go that route.

Benjamin Wittes: All right. We've got several questions. We're going to get through them all. The first is from Simon from Montreal.

Audience Member 1: Hi there. Thanks, Ben.

Benjamin Wittes: Thanks for joining us.

Audience Member 1: So, I have a simple ignorant question from a foreigner.

Benjamin Wittes: Well, we have simple ignorant answers.

Audience Member 1: Ongoing assumption that you can't jail a president because the Constitution, I think in Scott's words, requires a functional president. But it seems to me that the U.S. Constitution also provides for what to do if a president dies or if a president is temporarily incapacitated. It's quite clear on how to handle circumstances like that.

So if you've had a jury convict, and if you've had a judge pass sentence, what's the impediment to just following the Constitution and treating the president as temporarily incapacitated and passing on those presidential duties?

Benjamin Wittes: So it's not an ignorant question at all. It's actually a very interesting and sophisticated question. Let me give you a relatively simplified answer to it for lack of time. But it's actually a question you could spend a lot of time on.

So unlike in Canada, where, you know, the executive branch is a creature of the legislature. And, you know, the executive branch in the United States is independent of the legislature, independently elected, and it's vertically integrated in a way that is not true in other democracies, or at least non-presidential democracies.

So the Bureau of Prisons works for the president. And so one reason the Justice Department, which would have to ask for this sentence, works for the president. And so one reason that you, that what you're describing just kind of doesn't work in the American constitutional system is that the executive branch is this, you know, it can't make war on itself, right? It can't decapitate itself.

A second reason is that there is an assumption, and again, there's some academic dispute over the integrity of this assumption. But there's an assumption that the presidency is, you know, not above the law by any means, although it's increasingly functionally above the law. But that, you know, the highest democratic value is the election. And so, you know, we only have one president at a time. The executive power is not shared by a cabinet. It resides in one person.

And so the idea that when the people have spoken and elected that person, that person has to be not attacked by his own branch of government for the term of service is the underlying rationale for it. But it's, and that the, and by the way, that the mechanism by which you're supposed to discipline him is one that we have entirely neutered, which is the congressional impeachment power. And so that's sort of the original understanding and aspect of it really do continue to this day. But the one that doesn't is the integrity or validity of the impeachment process, or vitality of it.

Mark, the floor is yours.

Audience Member 2: Thank you long time listener, first time caller, so thank you for everything you guys do.

Benjamin Wittes: Don't make it the last time.

Audience Member 2: My question was about the Georgia election interference case. I think we touched on it earlier. But I was wondering what the effect of the election and, you know, potentially the case against Trump as a result, but the effect that will have on the broader set of charges in Georgia against codefendants like Mark Meadows or Jeffrey Clark.

Benjamin Wittes: This one has Anna's name all over it.

Anna Bower: I mean, look I don't think that it, he can't pardon them because these are state crimes. So, he, that's something that he's able to do with his codefendants in the classified documents case that he can't do with these defendants. You know, I mentioned that it could be that the bigger issue is how the presidential immunity decision could affect the case against these codefendants.

But I think if Fani Willis is willing to, you know, file a motion to sever and a motion to stay, then Trump could be separated out, and that case could be basically held over until 2029. But then all those other codefendants could still go to trial so long as there's not, again, you know, kind of issues with maybe evidence that would have been admitted against Trump being admitted against his co-defendants, because this is a RICO conspiracy case. And so, kind of basically all of the same evidence that would have gone in against Trump would be going in against these defendants as well.

So we could very well in the next 4 years, while Trump is a sitting president, have all of the things that they were going to present in the case against him being presented in open court against these codefendants and in a televised trial, mind you, because remember, Fulton County is one of the courts that has live streams of everything that's happening. So, it could very well be the case that we get all the information that the prosecution wanted to put out there but it's just not Donald Trump who is sitting at the defendants’ chair.

So, again, though, maybe there's something I am not considering. But I think the bigger question with these codefendants is how does the presidential immunity case and the Supremacy Clause and Supremacy Clause immunity affect these codefendants? And then also you know, what does Fani Willis want to do? She said before that she wants to try everyone together. They, you know, gave very generous plea deals to some of the defendants who demanded speedy trials because they didn't want to have to go through the process of presenting all of this evidence against them without having the whole group together.

So are they going to try to just say, all right if you extend Trump's case out of 2029, we'll just wait to try everyone until then. I doubt it, but maybe. I don't know.

Benjamin Wittes: All right. Alaric, the only Lawfare material supporter who has ever personally sacked Rome, the floor is yours.

Audience Member 3: I'll try to be gentle here. And I'm coming from the vantage point of the legal laity, you know, but one version of my question is, should Lady Justice's right hand, the sword in it be replaced with an hourglass?

And my original question to you was how should we really process the abject success of delay in all of these proceedings? I understand they need to proceed, but this almost, well, and I suppose delay has been incentivized in legal proceedings, but this just seems like something where is any actionable reflection needed?

Benjamin Wittes: So, I will just say for my own part the success of delay has been extraordinary. And, you know, that's nothing new, actually. You know, that's a tried and true defense tactic. It's a legitimate defense tactic.

And this is one of the areas where money talks in the justice system. And if you're you know, represented by a public defender, you don't get this kind of delay over and over again. But if you're willing to throw tens of millions of dollars at lawyers, and by the way, fund it through campaign finance, you know, you can buy a lot of delay. And that's a and that's, this is a very vivid example of it. And I don't think we've ever successfully figured out how, I mean, I don't know how to process that. It's it's a very upsetting thing to watch. Roger, and then Anna.

Roger Parloff: You're right. And we could back up from that question into, do we blame Merrick Garland? I don't want to go there. I'll let you guys do that cause I'm going to have to, I have to leave actually.

But I did want to say there's a second thing with the delay. The second thing is the orchestrated lying here as a defense. You know, the main January 6th defense grows out of the Big Lie, the election lies. And then there are permutations and ways of making that keep going. And the defense to all of these cases is another big lie. It's a firehose of lies about, this is all Biden, you know, pursuing me because, as a political vendetta. And it's been astoundingly successful.

And as I said before, if you can't get to the details, and they couldn't get to the details because of both the delay and the factor that half of the population isn't watching news sources that are going to tell them the details, these lies work. You know, it's the triumph of the lies.

And in fact, in the beginning, I wondered, can lawyers really do this? I mean, I'm used to retrospective, you know, usually you're saying, well, here's a series of facts that could have occurred. Here, it's sort of an ongoing lie that's going to have ongoing consequences. And, you know, I guess they're channeling their clients. So it looks like zealous advocacy, but it felt, like, over the line, like I haven't seen this before.

And, but, you know, the judges all let him do it toward the end. Judge Chutkan said, you know, let's keep the campaign stuff out of here. But that's another factor that I thought was sort of unique. I think I'm going to have to.

Benjamin Wittes: Thank you, Roger. Anna, did you have thoughts on this?

Anna Bower: Yeah, well, I just wanted to add two things about the impact of delay on these cases that we haven't really discussed today and that I haven't heard a whole lot of people discuss.

So, with respect to how delay affects the case against Trump in the state case in Georgia, which could survive out to 2029 and then be resurrected. You know, we talked a little bit about will the political appetite there be there and all of that to continue that prosecution once Trump leaves office. But the other thing that is, has really not quite been considered is that if you do resurrect that case in 2029, that's almost a decade after these events have happened. Witness, no prosecutor wants to prosecute a case that long after the events have occurred. Witness memories will have faded.

There was even an issue earlier a few months ago when there was a witness that was an older woman who, I'm not entirely sure what the situation is. There was some speculation that maybe it was a health issue, whatever. But prosecutors requested that they be able to get a deposition from her so that if she's unavailable, when trial comes around, they'd still have her testimony. But the point being that is a good example of the kind of thing that can happen when you have many years between the conduct at issue and then the trial. Witnesses become unavailable you know, memories fade, that kind of thing. And that can, you know, really impact the case itself.

And then, with respect to the cases against these codefendants in Georgia that could very well go forward during Trump's presidency, there's a lot of concerns about things like, will witnesses be less willing to be candid on the witness stand because they're sitting there testifying about conduct that has to do with the president of the United States.

We've seen before that he is not hesitant to you know, intimidate people by speaking about them publicly. And so it just raises a lot of questions about the integrity of the case, not only against Trump, if it ultimately does go to trial because it'll be many years after the fact, but also these delays by then waiting until Trump is president against the codefendants could also be compromised. So, just wanted to kind of raise those two issues.

Benjamin Wittes: Excellent. All right. We've got four questions. They are all questions people asked me to read. Let's go through them quickly.

From the anonymous attendee: “Would anybody like to comment on columnist George Will's scathing slash dismissive remarks on prosecutors’ actions and qualifications, including Jack Smith's?”

I have not seen these, so that while the question says they've been widely publicized they have not been publicized to me, I'm afraid. So I am generally an admirer of George Will’s, and I take him very seriously, but I can't address these particular remarks.

Jeff asks: “What ways can a president interfere with state investigations and prosecutions, such as Steve Bannon's fraud case?”

The basic answer is that the president has no ability directly to interfere with state prosecutions or actions, except insofar as sometimes they can be, you know, preempted by federal activity in some way. Generally speaking, you know, just as Joe Biden can't interfere with the state of Texas investigating women who say they've had miscarriages, and the state believes, state prosecutors believe they've had abortions. That's not within the purview of the federal government, generally speaking, to get involved in that.

That is generally going to be true for state investigations and prosecutions of this kind of thing as well. With the caveat that Donald Trump often engages in, sort of, bullying tactics you know, using the no pun intended bully pulpit, to bully people and that has political repercussions that can put pressure on people, but it's not really legal pressure. It's more you know, the sort of pressure that he's just capable of exerting.

Anna Bower: Right, and also there are ways in which his allies. We've already seen some examples of this with, you know, Jim Jordan's and investigation into and, you know, getting Nathan Wade to come before Congress to testify. So, there's kind of investigative things that Trump's allies could do that are a part of these kind of broader bullying tactics that you, as you've described, Ben.

Benjamin Wittes: The anonymous attendee also asks: “With Trump's reelection, the question of Trump's self-pardons is back on the table. Will it make sense for him to pardon himself? If so, and he does pardon himself, what can we surmise about how the Roberts Court will treat the question? Does it even matter?”

And I'm going to merge this with the last question because the two questions are more related than the anonymous attendee may know.

So the last question is: “In case this is not addressed already, why oh why would Jack Smith or Merrick Garland preemptively wind these cases down instead of making the Trump administration take affirmative steps to stop active prosecutions and investigations into himself and coconspirators? Isn't this the warning we have been hearing about fascism, concerning self-censorship and doing the authoritarians work for him?”

And so part of the answer to the second question is the first question, right? That if you don't resolve it preemptively, one possibility is that you end up with a self-pardon. And were that pardon to be challenged, and it's actually a little bit hard to figure out how it would be, but were that pardon to be challenged, it might be upheld. And having the doctrine on the books that the president can pardon himself is quite damaging, actually. Having some doubt about that is a valuable thing.

I will also say that there are other reasons for winding it down. preemptively, and one of them is tactical, and the other is an answer of principle. It is the historic position of the Justice Department, at least since 1973 that the president cannot be prosecuted while he's in office. If you take that principle seriously, it follows that once somebody who has been elected president, that act of electing him president has to, at least for now, preclude a prosecution. So that's the principal answer, principled answer.

The tactical answer is you know, if you wait, and as the anonymous attendee suggests, force the next administration to do this thing, you are forcing the Justice Department to ask the court to do a highly self-interested, terrible thing on behalf of the president. And that is a bad thing for the Justice Department to do. It's a much less bad thing for the special prosecutor who brought the case to do himself. And so saving the Justice Department from the disgrace of having to do it under compulsion of the president has a kind of a, you know, save the fight for another day.

That said, I hear you, anonymous attendee, and part of me thinks you know, in a very kind of Leninist way, maximize the contradictions, make them do the dirty deed themselves. This is what he, you know, he said he was going to do, make him do it. And so I can really see it both ways. And I am not sure what in my own mind, I think the right answer is. Well, Anna, do you have thoughts?

Anna Bower: Well, I was just going to ask you, you're, you know, you're someone who knows the special counsel regulations and the report writing function of special counsels better than I do. But how does all of this interact with the possibility that Jack Smith could write a final report that is, you know, at the discretion of Merrick Garland, released to the public versus waiting and then not being able to issue a final report on these cases because it's then in the discretion of an AG that is a Trump administration AG?

Benjamin Wittes: Yeah. So that is another reason at the tactical and strategic level that, you know, the cases are going away. So the question is, do you write a serious document that lays out everything you've got? They've kind of already done that in this, because of the immunity litigation. And so the added value of a final report is less than it would have been two months ago, but it's not zero.

And you probably don't get to write the final report, though you could maybe fudge it and do, kind of, do it anyway. You probably don't get to do it if the litigation is still pending. And so, yeah, there's value, you might say, there's the final report is more valuable than the destruction of the case by them, not you. The message sending of that.

Anna Bower: Yeah, and also I will just add too, I mean, cause the final report could also presumably be for the classified documents case, even though there might be classified information that has to be excluded from the report, but, you know, there are things that maybe we don't know about that case. That's the case I think we actually know the least about in terms of, you know, there is a speaking indictment, yes.

Benjamin Wittes: But it doesn't speak quite as loudly as the proffer of evidence in the January 6th case. No, it's an excellent point. There is also remember a whole lot of declinations that were made that Jack Smith may want to say something about. For example, why didn't he indict any of the unindicted coconspirators, right? These are questions you can address in the context of a final report.

So, the answer to the question is that there are a lot of potentially good reasons. But the underlying animating factor that is driving the question is a legitimate one, which is why are you taking, why would you want to take this damaging, self-dealing thing off the plate of the new administration? And the answer is that is a cost of doing it this way.

We are going to leave it there. Anna Bower, thank you for sticking with the whole time. Roger Parloff and Scott Anderson, both of whom dropped off early, thank you both.

We will be back. Not sure when, but certainly when Justice Merchan rules in the in the immunity question. For the dwindling remaining days of Trump Trials and Tribulations, with Trump ascending and no longer tribulating. We're nearing the end here. We are not, however, nearing the end of Lawfare Live, which is going to be very active throughout the new, the transition, the new Trump administration. And we hope you will join us.

If you are watching this on YouTube, become a material supporter of Lawfare. We are going to be really busy the next few years. And we want you on the team and in the studio as we do it, go to lawfaremedia.org/support and join the inner circle. It's only missing you. We will see you next time.