Lawfare Daily: Trump Trials and Tribulations Weekly Round-up (August 15, 2024)

[Introduction]

Anna Bower: The main key issue here is whether or not Judge McAfee got it right when he found that there is no actual conflict of interest.

Benjamin Wittes: It's the Lawfare Podcast, Trump's Trials and Tribulations. I'm Benjamin Wittes, Lawfare's Editor-in-Chief with Anna Bower, Lawfare Legal Fellow and Courts Correspondent and Lawfare Senior Editor Roger Parloff.

Roger Parloff: Suppose Trump wins and Kash Patel becomes attorney general or some such appointment and they do go after Biden by hook or by crook, or Kamala Harris. So they want to have robust protections.

Benjamin Wittes: In a live recording on August 15th, we talked about Judge Chutkan's order granting Jack Smith's motion for an extension of time. We talked about briefs filed in Trump's appeal to disqualify DA Fani Willis from the Fulton County case. We talked about some cases you've probably never even heard of. And of course, we answered audience questions.

Anna Bower: And then of course, there's, you know, this larger cast of characters who relate to Trump world and the efforts to prove their conspiracies about voting fraud and, and Dominion voting machines and all of that. So it's just a really, it's been a very interesting trial and we'll see what happens in October with the sentencing.

[Main Podcast]

Benjamin Wittes: Hey folks. Welcome to this week's Trump's Trials and Tribulations. You know, people think there's an election going on. They think there's a war in the Middle East. They think there's going to be in a war between Iran and Israel, and there's a Ukrainian invasion of Russia. And it's all designed to distract us from Trump Trials and Tribulations, but we will not be distracted. We will be here, as I said last week, until the last trial, the last tribulation trials and tribulates, and you, the true trial and tribulation addict, will be here with us. From the upstairs in my cubby studio with Roger Parloff, whose in the sconce studio and Anna Bower who is in a never before seen room in her palatial mansion. Anna, what room is this?

Anna Bower: This is the, this is the, oh gosh, what room is this?

Benjamin Wittes: It kind of looks like the doctor's office waiting room-room.

Anna Bower: Yeah, this is the doctor, I have a fully staffed medical unit for all of my healthcare needs in my palatial mansion. And here we are in the waiting room, the doctor's office waiting room wing of my palatial mansion.

Benjamin Wittes: There you go. And before we get started with this week's show, Anna, you were planning to go to a Grateful Dead show last Thursday while, when we were trialing and tribulating. And the flood of questions that have come in about your reaction to the Grateful Dead show has really, unlike anything that's ever before been experienced in the history of Trump's Trials and Tribulations. And so that we can satisfy the throng at, with pitchforks and forks and, and torches at the gates demanding answers. How was the show?

Anna Bower: Yeah, I know that people are dying to hear about my experience at the Dead and Company show at the Sphere in Las Vegas. I will say it was great. I, I feel like I'm a kind of a Grateful Dead convert. I had a great time. I went by myself and I sat next to two older gentlemen who have been long time Grateful Dead fans, and we rocked out together. It was, the Sphere is amazing. John Mayer broke his finger the day of the show, and apparently all the Deadheads were really worried that the show was going to get canceled. But John Mayer just bandaged his finger, and he managed to play a great set, and it was amazing. I, I actually have to say, because as you know, and as Trump Trials and Tribulations listeners know, I am a bit of a Swiftie. And it wasn't too unlike being at a Taylor Swift concert in terms of the vibes because everyone-

Benjamin Wittes: Except that the average age was like 30 years older. And-

Anna Bower: Yeah, I would say the average age is like 50 years older.

Benjamin Wittes: And the vibe was way maler. Yeah.

Anna Bower: But yes. It’s all, and it’s mostly, it’s a lot of men instead of women.

Benjamin Wittes: And instead of glitter, there's beards.

Anna Bower: Right. But everyone was so excited to be there and to have this collective experience watching one of their favorite bands that it was just all over a very nice experience. So highly recommend if you are in Vegas, expanding the wing of your palatial mansion all the way to Nevada, then check out the Dead and Company at the Sphere. Although I think maybe that was the last weekend that they were there.

Benjamin Wittes: Well, I will just say I have known many a person having gone to Oberlin College in the late 1980s. I knew many a person who dropped everything to go follow the Dead on tour. And I least, you were among the people I least expected to do that. So, congratulations once again for defying expectations.

Alright, let's get into it because one person who also defied expectations was Tanya Chutkan, who, frankly, I was expecting to respond to the return of the mandate with a blizzard of rulings and, and actions. But whose first major action, other than to decline to dismiss the case for vindictive and selective prosecution, was to delay things a little more. So, Roger, get us started. What happened this week with this extra time that the judge gave to Jack Smith to get his act together. And perhaps more importantly than what Judge Chutkan did, what do you make of Jack Smith asking for more time, and what that says about what's going on in the Justice Department?

Roger Parloff: Yeah, I wouldn't blame this one on Judge Chutkan. She seemed to be raring to go. But a little shortly after our last Trump Trials and Tribulations the special counsel did ask for more time, and this was quite striking. It sounds like, my understanding is that Trump's team had had at least one conferral with the special counsel and had not expected this, which. and from that, you might even extrapolate that maybe the special counsel didn't anticipate needing a, a delay. But on August 8th, which is remember 32, no, 38 days after the Supreme Court ruled they did ask for more time and in the motion, which was two pages, it was not 48 pages. In the motion they-

Benjamin Wittes: Wait. I want to stop you right there because let me just say in my own defense. I was not going to bring this up, but Roger has pointed out that I predicted that the response would be 48 pages. It would be substantial. The response still has not been filed. What's been filed is a request for more time to follow the response. Follow the response. When there is, it is unfair to get to construe the motion for more time as 46 pages shorter than I predicted. We're going to compare apples and apples on this show, Roger.

Roger Parloff: Okay. So, anyway, 38 days after the Supreme Court ruled, they asked for more time. They asked for 22 more days until August 30^th, 60 days in all. And they said they need to consult with various stakeholders with the Justice Department, which is true under their, under the special counsel regulations. They need to comply with certain DOJ. So, the big ones there are, is probably OLC, the Office of Legal Counsel. And this is a big deal. And I think the problem is that the special counsel, you know, has two cases it's handling. DOJ has thousands and actually sort of an infinite number if you consider that it's an institution that will have cases going forward. And so they need to worry, you know, official acts of presidents is something that comes up in a civil context all the time for them or from time, not all the time, but from time to time. And now it sounds like the very same phrases are going to be used in both civil and criminal contexts, whether or not they're going to have the same contours or not. And this is a very tricky question. And, and for DOJ, which typically takes very broad and protective views of presidents. And in fact, they also have to worry, I mean, a legitimate thing to think about is suppose Trump wins and Kash Patel becomes attorney general or some such appointment. And they do go after Biden, you know, some by hook or by crook or, or Kamala Harris. And you know, so they want to have robust protections. So, I don't think this is easy.

And if you look at the, remember the Blassingame case, this was the civil, there were a series of civil cases, there are a series of civil cases that were filed by police officers and some congressmen against Trump and other actors on January 6^th. And DOJ sort of tried to stay out of that. And then after the oral argument in front of the D.C. Circuit, the D.C. Circuit invited DOJ to weigh in. They provided a brief. They suggested a really, a way to sort of wiggle out of it, a very narrow area that you could, that would not be official acts if somebody was inciting violence. The D.C. Circuit rejected that. So, this is a very hard, I don't know how they're going to resolve this. And, and, you know, what the DOJ did say in that brief, and again in the civil context of Blassingame, they suggested that for instance, the mere fact that the president is not acting pursuant to an enumerated power is not decisive. That he could still have official immunity. So, you know, for instance, if you're talking to your vice president or if you're trying to influence your vice president's behavior during the joint session of Congress, even though you have no constitutional role there, that doesn't mean you might not be protected. And similarly, this broad view of the bully pulpit that maybe when you're talking to state legislators and, and state governors maybe if you're doing it from the White House, maybe it's still official. So, there are still ways to carve it out, but the DOJ has never done this sort of thing before and this puts them in a tough spot.

Benjamin Wittes: Yeah, so, Anna, what do you think? Is this, can you think of another possible explanation for this that does not involve some friction between Jack Smith and OLC?

Anna Bower: Well, I, there's been some speculation that there could be plans to bring a superseding indictment and that that is part of the reason for the delay that you know, that could be in the works. And that before they file any kind of proposed schedule going forward, potentially want to get that superseding indictment out. I'm a little bit skeptical of that, but I'm curious, Roger and Ben, to hear your thoughts on it.

Benjamin Wittes: Roger, what do you think? Could we be looking at a superseding indictment situation and they're just a few days away from it, and why have a status conference when you're planning to re-indict momentarily anyway?

Roger Parloff: It's certainly a possibility, and down the road, if this case survives, there will need to be a superseding indictment. But I sort of agree with Anna that I don't see what, I don't think, I don't think they need to do that first. I think right now they're sort of mapping out a briefing schedule and, and, and I think we're not there yet to.

Anna Bower: Yeah, I, I think, and that, that's to clarify my reasoning. I, I think that Roger, we're probably on the same page in terms of what the why of it all as to why we think that it's not time yet. I think what you'd want to do is just go ahead and move forward with the indictment that you've got and see what you can get in terms of rulings from Judge Chutkan. And then after those rulings have been made in terms of what needs to come out of the indictment, then that's when you go back and get a superseding indictment and, and kind of, or, you know, there are things that are, are stricken from the indictment, that kind of thing. I just think that they're going to want some rulings first from Chutkan before they just immediately kind of start taking things out or, or adding things and, and all of that.

Benjamin Wittes: Yeah, so I have to say I think the only explanation for this is the one that Roger started with, that there is significant disagreement within the executive branch over how and whether they can move forward and what facts they can plausibly try to use. And it seems like the logical office that would be anxious about this is OLC which has, you know, is the guardians of executive authority and has been, I thought, shockingly cooperative so far. But now they have a Supreme Court opinion that says, you know, official acts are at least presumptively immune from criminal process.

And there's gonna be someone at OLC whose job it is to, to say, hey, you know, we're OLC, we're the guys who, who think about that capaciously. And we're not the prosecutors, we're the people who interpret the law in the fashion that enables the executive branch. And meanwhile, Jack Smith, who's the prosecutor, has got a case he wants to make. And I think that's a, that's a pretty normal and healthy tension when you have a shock to the system as big as a as big as this. My guess is they will resolve it but they'll resolve it on the basis of, you know, it'll be a little muddier than you might expect and Jack Smith may not be able to come out all guns blazing. All right, so what do we have, Roger, coming next in this? We've got they've gotten a little bit of extra time. When do we have a hearing? When, when do they actually now have to file this thing?

Roger Parloff: They file it August 30th and the hearing will be September 5th. And that's about all we know right now.

Benjamin Wittes: Well, we know more than that because I'm going to be on vacation then. And so they, they, they did it right in the middle of when I'm supposed to be in Italy. And then they have the hearing the day after I get back from Italy. And I just want to raise with Judge Chutkan the, what about my needs problem here, because like a hearing when you're jet lagged is really terrible.

Roger Parloff: You know, you think you have a problem. I think Anna will tell us later that Steve Sadow just got really blown away in that.

Anna Bower: Yeah, poor Steve.

Benjamin Wittes: We're going to go, we're going to run with that when we get to Fulton County. So we don't know, we don't know more than that, right?

Roger Parloff: No, not really. And, you know, there's a nagging thing in the back of my mind about whether DOJ is getting cold feet about this. You know, there is no real 60-day rule or 90-day rule. There's no rule. There's, but it's, you know, there's this oral practice, this, there's a practice that's been orally described several times and each time it's described, it's described differently. And it's fuzzy, and I don't know whether they are going to want to do a whole lot in the run up. Now, you know, they've been, they told, I think, Judge Cannon that the 60-day rule, whatever, it doesn't really apply. It's about, you know, you know, bringing investigations and so on. But I'm, I'm not sure if everyone's on board and, and what, how they're feeling about that right now. And so it's another sort of wild card in the mix. I assume it's not what's, what the, what the issue is, but it is sort of lurking back there.

Benjamin Wittes: Speaking of things that have been delayed and actions that are lurking back there as a result, let's turn to New York, where Justice Merchan has ruled for the third time that he does not need to recuse himself. And we appear to be steaming toward a ruling on the, I believe the 16th about whether this whole case needs to be thrown out and redone because of the Supreme Court's action. And then maybe sentencing on the 18th. So Roger is this sentencing gonna happen?

Roger Parloff: I actually think that's a good question. I, I think that he's going to deny the motion to vacate, which is actually, I mean, really they're asking to dismiss the indictment. But it would be, you know, at most you would have to start the, a new trial. I, I think he's gonna, you know, deny the motion, whatever you call it, and move to the sentencing. Today Trump's team filed a pre-motion, a one-page pre-motion raising three issues, only one of which I think is important. And that is this thing, this question that arises in the immunity decision, the Supreme Court's immunity decision, certainly in a case like the January 6th case where the issue is are you dealing with official acts, can the president be held liable at all for the acts you've alleged?  You need to, under this ruling, have a pretrial review and that is appealable itself by interlocutory appeal and that's crucial.

And that's not the situation in New York. New York isn't about, you know, nobody really disputes the indictment alleges unofficial acts. The problem is that there were, there was some evidence introduced that consists of arguable official acts. And, and so they're saying, well, we need a pretrial review for that. And, and of course the trial has already occurred. So one remedy is dismissal. But another is even if you rule against us, we need an immediate interlocutory appeal to obey this, to obey the Supreme Court. So they're going to make that argument. I think it's wrong in terms of what the Supreme Court is saying because they say it in the context of liability, not in the context of evidence. They say it in one section, you know, 2(b) and not in the section that's about evidence, 3(c). But, you know, that's fuzzy, and it would certainly be bizarre to have an interlocutory appeal that occurs moments before the judgment, which is when you normally take the actual appeal. It would be unbelievably inefficient, but maybe, you know-

Benjamin Wittes: It does seem to be what the Supreme Court said.

Roger Parloff: Exactly. And it's, and the Supreme Court wants inefficiency here. They, they want to kill all these things. And to some extent, you know, they certainly want to discourage all these things, that's explicit. And so, but, so I assume, Judge, again, Judge Merchan will deny that, but then there will be an immediate what? There could be an immediate Article 78 proceeding, which is sort of a mandamus proceeding, which is, you know, we've had umpteen of those already, you know, on every, every gag order, every this and that. And they could also try going into a federal court and trying to get some sort of TRO. And the thing is, with two days to go, it's hard for any court to get oriented on this in less than two days. You have to decide, do you grant a temporary stay or not? And I, I sort of suspect that by hook or by crook, they might be able to delay this some.

Benjamin Wittes: So I think there's something to that, although it would have to be done in two days, which is pretty hard to do. And I also think that it kind of depends on the way Justice Merchan rules. So, if he rules that the matters are waived, and the government's claim is that a lot of them are waived, that is a less pressing thing for a higher court to deal with on, on interlocutory appeal than if he rules on the merits of them, right? If he rules that, well, it's, they're all waived except that it's private conduct that is, you know, except for a few that they're private conduct, you know, you could really imagine the court, higher courts not wanting to take on the is it private or is it public context in an interlocutory context. And you say, well, screw it there, you know, there's, there's going to be a final judgment in two days anyway. But I could totally see if he really engages the subject that they could take the view that you know, he is, the Supreme Court said this has to be doable on an interlocutory basis and they didn't make an exception for if you happen to have already conducted the trial before the ruling came down. And we're just two days ahead of sentencing. You know, it sort of depends how literalist you might want to be. Anna, what's your prediction here?

Anna Bower: I so I haven't looked at it as closely as Roger has because we just got word of this today and I've been focused on some other, preparing for some other things and writing a piece. But I will say that I I'm not sure, but I, my instinct is to think that Justice Merchan is going to go ahead with the sentencing on the 18th. But I, I'm not sure. I might come to a different view after looking at it more closely.

Benjamin Wittes: And when you say, that's your instinct. Do you mean your instinct is that what he, is that what he should do as a normative matter or as a predictive matter that that's what you think he will do?

Anna Bower: As a predictive matter, that's what I think he will do.

Benjamin Wittes: My guess is you're right. And then the question is, what does the appellate panel do when you get an emergency stop this sentencing in two days appeal, and there's an on point Supreme Court decision saying this has to be done on an interlocutory basis?

Roger Parloff: And there's a very un, you know, I think all the courts except the Supreme Court would be, you know, receptive to what, what Merchan will probably do, try to go forward. But the problem is once cert was granted, Trump at the, you know, which was really late in the game. I mean, it was, it was like just before trial was supposed to start, he asked for, oh, let's put off the trial until we get a ruling. And it sounded, I mean, to everyone, it sounded like this is just classic Trump grasping at straws. He'd been trying everything in the books. Blanche had been honest about it. He'd been saying, look, judge, we're gonna be trying to put this off till after the election you know, one way or the other. So, and, and nobody believed, you know, it's, it's crazy. This whole case, this has, you know, it's not based on official acts. He never claimed it was. But then if you go to the Supreme Court and say, well, yeah they asked us to put it off until after we heard from you, but we went ahead anyway. And of course the court has already said he thinks, they think, or you know, the majority have sort of implied they thought the D.C. Circuit rushed this, that Chutkan rushed this, and the implication, the insinuation is they did it for political reasons. So, you know, I think they're gonna be very, you know, if it's, if that's who decides this, you know, they're gonna be receptive to Trump's claim.

Benjamin Wittes: Yeah, I think that's right, and I for exactly this reason, I think that from a Justice Merchan point of view, the waiver arguments are going to be very attractive, that the more of this you can sweep off the table and say, well, it's a, it's a very nice point, but it's waived. And, you know, even, even the most important constitutional questions of immunity can be waived. You know, I think that that is going to look very attractive to him as a way of dealing with as much of this as possible, and granted there are certain aspects of it that cannot be dealt with this way.

All right, 573 or so miles from the courtroom in New York is Fulton County. I just made up that number, but I'd be curious whether I'm even close to right. And we have a scandal involving somebody else's travel schedule down there and it's not mine and the Georgia Court of Appeals is showing to Steve Sadow and his boots as little regard as Judge Chutkan is showing to my travel schedule and my dog shirts. Anna, what is going on in Fulton County and why can't poor Steve Sadow have a vacation with his wife?

Anna Bower: Well, so Steve Sadow, of course, Trump's attorney booked a-

Benjamin Wittes: Really good lawyer, by the way.

Anna Bower: Yeah, very good lawyer. Great boot collection. But he's, back in 2022, so he says that this was before he took the case he paid for a trip to, an international trip to celebrate his 70th birthday and I believe it was his 45th wedding anniversary with his wife. And then he takes this case litigates the issue around the disqualification of Fani Willis. They take it to the Georgia Court of Appeals. Initially, the Georgia Court of Appeals set an October oral argument hearing, but then it was subsequently moved to December 5th. And what do you know, December 5th happens to be during the time that Steve Sadow planned to go on this big trip with his wife for his 70th birthday and their 45th wedding anniversary. So he asked to reschedule the oral argument to a different date. We heard from the Court of Appeals this week in just a one-line order that didn't explain anything, that they were refusing to reschedule. So Steve Sadow, I don't know if he's going to be able to reschedule or get his money back. I have not inquired for comment on, on that, but I, I do know that he is-

Roger Parloff: Nathan Wade is reimbursing him.

Benjamin Wittes: In cash. Okay, I wanna stand up here for Steve Sadow and his wife for a minute. And this, consider this my amicus brief to the Georgia Court of Appeals. What the heck, guys? The guy has a, has his 70th birthday and his 45th anniversary with his wife. It's a long scheduled trip. You didn't ask him before you scheduled, does December 5th work for you? He probably would have told you. I'm not, it's not my usual habit to make passionate pleas on behalf of Trump lawyers, but come on guys, just move the, you know, you've already blown this case up to take forever. It's got, it's past the election, make it January 5th. So I want to just say to the Georgia Court of Appeals, chill out and let Steve Sadow have his, his vacation with his wife.

Anna Bower: Yeah, I will, I will say to you, Steve wrote on Twitter earlier today that people have apparently been calling his office and, and saying some quite mean, not so nice things about the, his travel plans or, or something to that effect. And so, yeah.

Benjamin Wittes: Reflect that I not only oppose that, but I disagree on the merits. And I think the Georgia Court of Appeals should let Steve Sadow have his vacation. I mean, they're punishing his wife, too, which, like, what did she do? She's, you know, if you, if you're a Steve Sadow hater, you and I like Steve Sadow. He's got good sense of humor. The boots thing, as somebody who makes eccentric sartorial choices, the boots thing is pretty funny, and I think he's he pulls it off pretty well. And he's always charming to Anna about it, discussing which animal the boots are made from on any given day. So I, I think very highly of Steve Sadow.

Anna Bower: Yeah. I will add that Steve's wife I believe is also an attorney, so probably understands, but at the same time, I, they just did a podcast together that I think was about, you know, their marriage. And you know, the two of them being in law and that kind of thing. So Steve is a noted wife guy. So I’m sure that he's very, very upset to not have be able to go on this trip.

Benjamin Wittes: If you're, but even if you're a Steve Sadow hater who says no decent lawyer should be representing Donald Trump, it's not his wife's fault. So chill out Georgia Court of Appeals. This is my oral amicus brief on behalf of Steve Sadow's wife and Steve Sadow and the boots, they should all get a vacation.

Anna Bower: Well, thank you, Ben. I'm sure that Steve appreciates that, but back to the substance.

Benjamin Wittes: Is there anything of substance having, it was like a brief filed or something?

Anna Bower: We, we also did get a brief that was filed by the state this week or I believe actually maybe it was last week technically. But, we got a brief that was filed by the District Attorney's office in response to the brief filed by all the defendants in the case who are appealing Judge McAfee's refusal to disqualify Fani Willis. And the brief, I think, it's what you would expect. It's of course they're arguing, oh no, Judge McAfee got it right. But there are a few interesting things that I, I will note about it.

So the main thing here is that there's a lot of arguing over the standard of review for the appellate court. The main key issue here is whether or not Judge McAfee got it right when he found that there is no actual conflict of interest. And then decided, of course, it, that it followed that he need not disqualify Fani Willis. He then found, though, that there was, at a minimum, an appearance of impropriety, but that it was a kind of discretionary remedy as to whether he needed to disqualify her. He ultimately gave her the choice, of course, whether to have Nathan Wade leave the case or to remove herself from the case altogether to cure the appearance of impropriety. Nathan Wade left. And so here in this appellate brief, a big part of the argument has to do with does the appellate court look at Judge McAfee's decisions on whether or not there was an actual conflict of interest de novo, meaning look at it kind of anew with, with taking all that, looking at all the evidence that's in the record and then they can kind of decide for themselves. Or is it an abuse of discretion where it's a much higher kind of threshold in, in, that the appellate court would have to find that in order to overturn Judge McAfee's decision so there's a lot of argument about that.

The, I think that the state has the, the better idea here in its briefs arguing that there, it's an abuse of discretion standard. So that higher standard, which would make it much more difficult for the appellate court to overturn Judge McAfee's decision. They point out, for example, that in the briefs of some of the defendants, I believe Latham is one of the defendants who makes this argument, they're trying to argue that there's this could be de novo review of the finding of whether or not there was an actual conflict by pointing to a Fifth Circuit case. But of course that's a federal, a circuit court that is not binding precedent in Georgia. And the state points to, you know, the Georgia case law that that suggests otherwise. And so I think that the state has the better argument there on those kind of threshold questions that will be very important as the Georgia Court of Appeals reviews this decision.

Some other interesting things on the forensic misconduct issue. That's the issue about whether or not Fani Willis's extrajudicial statements, particularly her, her speech that she made at a church in which she seemed to refer to the defendants and the motion that they brought seeking her disqualification. There's a whole section there that the state devotes the brief to that has to do with standing. This is something that I wondered if they were really going to seize on because in Judge McAfee's initial order, he has a footnote in that order in which he says, although defendant Roman has standing to bring this claim about forensic misconduct and the, the statements in the speech and all that. All these other defendants, there's a, there's a question about whether or not they waived the ability to join this part of the motion because they basically kind of waited around too long and then joined it belatedly.

So I, I think that that's going to be something that's interesting on that forensic misconduct issue because that's one of the parts of the defendant's appeal that I'm curious to watch for because forensic misconduct is very ill defined in Georgia's case law. It's not really clear exactly what forensic misconduct or what these extrajudicial statements would have to amount to in order to require disqualification. And they do devote a significant part of the brief beyond standing to this question of what is forensic misconduct? Of course, the state is saying that it's a really high threshold, that it's got to be you know, a deliberate attempt by the district attorney to prejudice the case and to, you know, name these defendants and make it a kind of more personal attack that is about, that goes to the question of guilt or innocence. That kind of thing. So they're, they're creating a very high threshold for forensic misconduct. But again, it's, it's not something that's very well defined in Georgia case law. So I'm interested to see what the Court of Appeals does with that or what kind of questions they will ask in December at oral argument.

Benjamin Wittes: Yeah. So You and I reviewed this case law pretty carefully when it was in Judge McAfee's court. It seems to me there's really no right answer to this question. Her, her conduct is pretty bad. Both on, you know, like, the statements were quite ill advised and inappropriate. And of course, the fact pattern with Nathan Wade is unpleasant and involves as Judge McAfee found the, quote, odor of mendacity in their testimony about it. At the same time, it's really pretty clear that there's not an actual conflict of interest and so you really do come down to this question of what the standard of review is going to be about which the Georgia Supreme Court has been less than entirely clear. Do you have a strong sense of what the right answer to this question is? I mean, I thought McAfee got it, like, given that he, you had to make it up, he did pretty well. He basically made up something that seems pretty sensible to me. Do you, do you have a sense of, of what you think the right answer here is?

Anna Bower: I, I think that, I think that McAfee probably got it pretty right. I, he, he, he took some pretty jumbled case law and made sense of it. I, I think that because one of the issues here is that when you're looking at the standard of what should apply in terms of whether or not to disqualify a district attorney. There are some of these cases that use the language of appearance of impropriety being sufficient to disqualify. And what he did here is say, well, no, it's actual conflict of interest which mandates disqualification. But if there's an appearance of impropriety and you can look at these different remedies that might cure that appearance and, and the language in these in this case law that kind of references appearance of impropriety is, is not really saying that, you know, this is what necessitates a disqualification. It's more of you could just have a more discretionary kind of way of looking at it. The state says that the cases that are mentioning appearance of impropriety are just mentioning that as a kind of consequence of the actual conflict of interest that is being decided in that case. So more of like, the appearance is the symptom of the conflict as opposed to the appearance itself giving rise to the need for disqualification.

And I think that makes sense. But it is, it is very, the, the case law is quite tangled in terms of what some of it means. Some of the case law is quite dated, and so things might have meant one thing at a different time and it, you know, the language that the courts in Georgia use, has evolved and, and has become more clear in recent years. But it still is something that I think is not entirely clear. And so that it makes sense why Judge McAfee did allow the appellants to appeal and that the Court of Appeals took it up. Because it raises a lot of questions about the appropriate standard for disqualification.

Benjamin Wittes: I think that's right. And I also think there's another issue here that favors the appellate court's deference to Judge McAfee. And that is that if you basically say, recusal is mandatory here, or he abused his discretion in not disqualifying, you're going to require disqualification in a whole lot of cases where you know two people in an office or having an affair in which there's, you know, which is actually pretty common. And you're gonna, you're gonna run into a situation that I think the Court of Appeals is likely to be a little bit wary about, which is what does the world look like if we require recusal rather than give judges the authority to demand a disqualification in certain circumstances. All right, let us go to the most inactive court in our little thing. Roger, what is going on in South Florida?

Roger Parloff: Things are unchanged. We're waiting for the special counsel to file its brief on whether the special counsel was properly appointed and that'll be August 27th. And then if they do it August, well, whenever they do it, Trump has 30 days to respond. I'm sure there will be a lot of amici. And then 21 days for the reply by the special counsel. And we don't know yet about when the oral argument will be.

Benjamin Wittes: Again, guys, August 27th, right in the middle of my vacation. You know, 11th Circuit what's with these briefing schedules that don't take account of my needs? All right, so we are going to take a little bit of a different thing this week on, on TT&T and we're going to talk about some non Trump cases that are, some of them are ones that you guys have asked about. Some are ones that we just think are part of the larger Trump Trials and Tribulations cinematic universe. Wanna start with January 6th blue collar cases, Roger. There's been some action in court here in Washington. What's going on?

Roger Parloff: Yeah a guy named David Dempsey.

Benjamin Wittes: Oh, Dave, I love him.

Roger Parloff: He was sentenced, he got 20 years and this is the second longest sentence, second only to Enrique Tarrio who was, you know, the head of the Proud Boys on January 4^th, January 6^th. He was arrested January 4th and he actually wasn't there on January 6^th. He was in Baltimore, but he was allegedly running things with the Proud Boys. So this guy is not a conspirator. He pled guilty. So this is a heavy sentence and of all the people that have gotten more than 10 years, there's about 14 of them. There's only about four that were not conspirators, that were not Proud Boys, that were not Oath Keepers or Three Percenters. And he was a very violent, he, he was attacking police officers for over an hour at the Lower West Terrace tunnel archway, the most violent venue on January 6^th. And used a lot of different makeshift weapons, poles. He stomped on people, he hung from the ceiling and stomped on people, used pepper spray ,and used a aluminum crutch. And he pled guilty to two assaults with a deadly weapon. Both seems to have caused some injury. And, but in addition he happened to have a very long prior record, which is unusual for most January 6th people.

One of the other people who's in that top 14, Peter Schwartz, also had, he had 38 priors. That's why he got a high sentence. This was about 14 years, a little over 14. But this guy had three prior burglaries and a, he had a high speed chase, you know, like a hundred miles per hour. He had grand theft. He had assault with a caustic chemical, which was, he had attacked a peaceful protester with bear spray. That was before January 6th. So there was quite a lot there. And another thing, just one last thing that was he had managed, he's from California. And after he was, long after he was arrested and, and shortly before he pled guilty, he managed to get one or two of his priors removed from his record under one of these provisions that is available for rehabilitated prisoners. And it's unclear how he did that because you can't, you're not supposed to get it if you're under indictment currently. And, and so both the Judge Royce Lamberth was a little troubled by that as well. But so that was a very remarkable sentence.

Benjamin Wittes: So, yeah, I just want to, y'all kids, to take the process lesson here. Take advantage of these provisions that let you clear your record, but do it before you commit the next crime rather than while you're on indictment for that crime. It works better. Actually, though, Roger, before we move on from this, I want to pause over the judge. This was a decision, a sentence handed down by Royce Lamberth, who's one of the most experienced judges on that bench and who recently gave a speech in the course of a different sentencing that was very explicitly taking on denialism about the nature of January 6^th crimes and was clearly directed at MAGA world. Do you think that this is a sentence that reflects Judge Lamberth's frustration with the ambience of these cases and that, you know, if you look at his actions together, this is a judge who's trying to send a message, or is this a sentence that is really responsive narrowly to the facts and circumstances which are egregious of this case in particular, or both?

Roger Parloff: I think it's, he is frustrated, the sentence was within guidelines or below. The government was asking for 22 years. So, it might have been below. So I don't, it's not like he was, I'm going to make a point here. This was somebody that given his record, given, and he pled to two counts, but he, there were, you know, five, six assaults. If you, it's hard to count at some point. But you're right, he's been very frustrated. But he, he, he, who by the way, is he's a Reagan appointee. He had Jason Chansley's case, Jason Chansley, the QAnon shaman. And of course Tucker Carlson did whole episodes trying, and that were amplified by certain Republican members of Congress, that were trying to show that he had gotten shafted, that something important had been withheld. And he issued quite a lengthy ruling about what a crock all of that was, and that people should pay a speck of attention to the court record and, and that these were offensive accusations about him and about the whole judiciary and that they were nonsense. And, and it went in great detail there, where it was appropriate. But no, you know, I think he's following the law. In fact, recently, he gave Jason Chansley his, his horns back because the, the law favored he, he made an application. He had served his time, and the government couldn't come up with a convincing reason for keeping the stuff that had been vouchered.

Benjamin Wittes: And the staff, you know.

Roger Parloff: Yeah, well the spear. It's a spear. And yeah so the government was not happy about that, but the judge felt, I don't have, you know, you haven't shown me law to prevent me that he's not entitled to it. So I think he's following the law, but, but yeah, he's frustrated.

Benjamin Wittes: All right. Let us turn to some other frustrated people. A we got a question last week, and maybe the week earlier, too about the status of the E. Jean Carroll case and the schedule of that. We did not know because it was a little bit afield for us. But Roger, you've done some, some work on the subject and have an answer for the many listeners who are frustrated by our not paying close enough attention to the E. Jean Carroll case. What's going on there?

Roger Parloff: Yeah, and in fair, and in fairness, this, this has some, you know, carryover there. Trump is posing these as cases that are being brought with a political motive, that these are election interference cases. So it's sort of the same defense as all the other cases. There are two of them and it, it, and it gets complicated. So I'll just sort of run, try to run over the timeline. You remember the incident is in a Bergdorf Goodman. I don't know if I have to still say alleged incident. The two juries have said it.

Benjamin Wittes: You can say adjudicated incident.

Roger Parloff: The adjudicated incident occurred 1995, and well, in the mid-1990s. Then in 2019, remember by then Trump is president. We've also had the Me-Too movement. And so E. Jean Carroll writes a book about some of the awful men in her life. And Trump is one of them. And a chapter is published in New York magazine. And in June of 2019, Trump makes a series of denials that she finds defamatory, I, I've never met the woman you know, the not my type. She's selling a book. She's political. It's a political attack. She sues November 2019. Now, because he's president, this now goes into sort of court of appeals bingo or not, pinball, you know. There's a lot of issues that need to be worked out. Can the president commit defamation or is it privilege? It's not a, he doesn't actually invoke presidential immunity initially, but he invokes a different sort of immunity, and it goes up and down. It's, it goes to the Second Circuit three times. It goes to the D.C. Court of Appeals, not the D.C. Circuit, but the state version on a question about respondent superior. So that's Carroll One. We call it Carroll One because it's the first one filed.

Meanwhile, in 2022, he defames her again. And also by then, New York has passed something called the Adult Survivors Act, which is because of the Me-Too movement, to give victims of sexual assault a window of opportunity to bring suit, even though it would normally be too long ago. So she brings Carroll Two, which is the October 2022 defamations and, and, and sex abuse and rape. And that one goes to trial pretty quickly. It gets to and there's a verdict and, and, and Trump doesn't show up at trial, doesn't call witnesses and it's five million dollars. So the day after the verdict, more defamations, more denials. This is fake. It's a fake story. I never met her. And so she amends Carroll One's complaint to add those defamations. So Carroll Two you have the five million dollar verdict. That begins to be appealed. And then Carroll Two goes to trial in January, you get the 88.3 million dollar, I'm sorry, that's, Carroll One is the second one to go to trial, and that's the 88, 83.3 million. And so we're going to have the, the, the appeal in Carroll Two, which is the five million dollar case is fully briefed. And we'll have oral argument on September 6th before the Second Circuit. Carroll One, which is the 83.3 million, that one, the opening brief Trump's opening brief is due September 13th.

Benjamin Wittes: And these are in the Second Circuit because they were federal, they were civil trials in New York, but they were in federal court in New York.

Roger Parloff: Yeah, she actually filed Carroll One in New York State Supreme, but he removed it.

Benjamin Wittes: To Lewis Kaplan's court.

Roger Parloff: Yeah, and then they were happy with Lewis Kaplan.

Benjamin Wittes: Oops. Yeah. So. All right finally, we're going to take a little detour and talk about two people that a lot of Trials and Tribulations listeners and watchers have never heard of. So, although some of you, the truly hardcore, will know this. Anna, who is Tina Peters?

Anna Bower: Tina Peters was the elections clerk in Mesa County, Colorado, who was indicted on several counts related to giving individuals unauthorized access to voting systems in the wake of the 2020 election. So, Tina Peters just expand on that a little bit is someone who became convinced in the wake of the 2020 election that voting machines had been compromised in some way, potentially by foreign governments or foreign nationals, all of those 2020 conspiracy theories. And several months after the 2020 election, so this was in May of 2021, she invited a man named Conan Hayes, who is one of the unindicted coconspirator, or is believed to be one of the unindicted coconspirators in the Fulton County case, because he received access to the Coffee County forensic images that, that relate to the Georgia case.

But she, Tina Peters invited this man, Conan Hayes, to come to something that's called a trusted build. That is this basically kind of, event at which election officials, members of the secretary of state's office technology experts who have been hired by the county or by the state do a kind of update to the voting machines and Tina Peters invited Conan Hayes to come to this trusted build where he impersonated a man named Gerald Wood, who was a technology expert who had been hired by the county. But Conan Hayes was an unauthorized third party and so he came to that trusted build. He also ended up getting a copy of some of the hardware of the elections equipment without authorization. A few months later at a cyber symposium where Mike Lindell had promised to wow everyone with evidence of fraud in the 2020 election some of those images were displayed. There was some of the information that was eventually distributed online included things like passwords to the elections equipment, that kind of stuff.

And, and then Tina Peters was eventually indicted on charges related to conspiracy to commit criminal impersonation. So that relates to, you know, this agreement with Hayes that he would impersonate Gerald Wood and that they would use Gerald Wood's ID badge to get into some of the elections equipment, that kind of stuff. There was a trial that was held over the course of several days in state court in Michigan. Although I will add that there was at one point a federal, an apparent federal investigation into some of these efforts to access voting equipment in Colorado that involved Mike Lindell's, an investigation into Mike Lindell. He's someone who was connected with Tina Peters. She now has a show on his channel or one of his networks. And, and yeah, so she, she went to trial and was convicted on seven out of the ten counts. There has not been a sentencing yet, that is in October. But the potential sentencing that she faces could be several years in prison.

And it was a very interesting trial to watch because it is the first example that we have seen so far of a conviction of one of the local elections officials or Trump sympathizers who sought to gain access to voting systems in the wake of the 2020 election. And of course it involves this individual Conan Hayes, who is one of the alleged unindicted coconspirators in Fulton County. And, and then, of course, there's, you know, this larger cast of characters who relate to Trump world and the efforts to prove their conspiracies about voting fraud and, and Dominion voting machines and all that. So it's just a really, it's been a very interesting trial and we'll see what happens in October with the sentencing.

Benjamin Wittes: Super interesting. So, at the risk of providing legal advice, Anna Bower for all those people who are watching who, you know, think they've seen untoward things in their local election counts, in the handling of ballots, should they break in to the local election, you know management the ballot counting? Is it good idea to break in and, and, you know, take things or check it out yourself, do your own research, if doing your own research includes something that may be construed as breaking and entering?

Anna Bower: Yeah, seems like it's a bad idea. Again, this isn't legal advice, but seems like a bad idea.

Benjamin Wittes: Don't do it, kids. Don't do it if you live in Coffee County. Don't do it if you live in Michigan. Don't do it in Colorado. Just don't be tempted to break in and like fix the voting systems that that you're, you're concerned about.

Anna Bower: Yeah, and if you're gonna do it, maybe don't invite a former pro surfer turns proclaimed tech wizard to be the guy that comes in and does the whatever it is that you're doing.

Benjamin Wittes: Right.

Anna Bower: Conan Hayes is a former pro surfer just for context.

Benjamin Wittes: Don't do it people. I mean, I know it's tempting because you've seen a problem and you just want to set it right. But these are things you should not try at home. Finally, who is Stefanie Lambert?

Anna Bower: So again, we're, we're kind of back in the realm here of people who are trying to get access to Dominion Voting Systems data and information. So Stefanie Lambert is a person, an attorney who is indicted in Michigan for a separate scheme to get access to voting machines. And in that case has not gone to trial yet, but is expected to go to trial in the fall. But she is also an alleged unindicted coconspirator in Fulton County because she is one of the individuals who received some of the data that was taken from the Coffee County Elections Office.

Benjamin Wittes: It's kind of like high school where all the kids who get in trouble are like hanging out together.

Anna Bower: Right, exactly. Well so-

Benjamin Wittes: All the kids who do like fake cyber security that actually involves breaking into electoral systems, they all seem to know each other.

Anna Bower: Right. They, they, they all do, but I guess that is the nature of alleged conspiracies, Ben. But so yeah, so Stefanie Lambert has all these connections to different efforts to access voting machine data. She also happens to have been recently, since March I believe it, was representing Patrick Byrne and his defamation case that was brought by the Dominion related to some of Byrne's comments that he made about Dominion Voting Systems during the 2020 election. I think that many of those statements are, are well known regarding, you know, many of the outlandish conspiracy theories.

Benjamin Wittes: And Patrick Byrne, just for those who don't know, is the former head of Overstock.com, who became famous as a result of his affair with Maria Butina the Russian operative and has been a fixture of this cabal of conspiracy theory.

Anna Bower: Yeah, during the 2020 election in the lead up to January 6th, he's one of the guys who funded a suite of rooms at one of the hotels that people were staying in to- He had this kind of quote, tech team or IT guys, including I believe Conan Hayes is one of the people who was in his orbit, who was working on some of the tech stuff, in which they were trying to prove in the lead up to January 6th, that the voting machines were you know, fraudulently changing votes, that kind of thing. He is a, is a big part of that network and has, you know, fund, funded a bunch of the efforts to find the quote, find the fraud.

But he has been sued by Dominion Voting Systems and has had this long ongoing civil suit. Stefanie Lambert started representing him. And of course, in this suit, like many civil suits, there is a protective order over the discovery, some of it related to Dominion's efforts to, you know, protect some of its proprietary information, that kind of thing. But also to protect individuals who work for Dominion given the threats that were made to Dominion employees in the wake of the 2020 election, all of that kind of stuff.

So Stefanie Lambert enters the picture and shortly thereafter Sheriff named Dar Leaf starts releasing information that seems to be documents from Dominion's discovery that just was produced in the course of this litigation. It's things like, you know, emails between Dominion employees, internal emails, stuff like that. And then also in Stefanie Lambert's separate criminal case where she is indicted in Michigan, she files publicly some of these documents as well that appear to be from Dominion's litigation files that were produced in discovery in the burn case. So Dominion files a motion to disqualify Stefanie Lambert, claiming that they basically defied the protective order by releasing a bunch of these documents, to, publicly or giving them to third parties in response. Stefanie Lambert and Patrick Byrne argued that the documents showed that Dominion had been committing crimes and that they gave the documents to a local law enforcement partner, meaning this Sheriff Dar Leaf because they were obliged to do so because the documents showed Dominion doing crimes.

As far as I can tell, the, the alleged crimes related to some kind of implication that followed from the fact that Dominion, one of the people who was sending emails and who worked for Dominion in these documents is a Serbian national. And of course, there's a lot of conspiracy theories that they have about whether or not Serbian nationals hacked the voting machines. It's all quite, it doesn't really make sense at all. And the magistrate judge who is overseeing the discovery in the case agreed and then also found that Stefanie Lambert's conduct was especially egregious that she did, you know, violate the protective order. And then also that she could not discount the narrative that had been proffered by Dominion, which was that Stefanie Lambert only joined the litigation in order to get access to Dominion's litigation files and to release them to the public to support this narrative that they were crafting about Dominion. And so, the judge disqualified Stefanie Lambert from the case.

I also will mention too, Ben, one other fact that is just, I mean, so much about this is wild. But one other thing I will mention is that during a hearing in federal court in this case a few months ago, Stefanie Lambert had a bench warrant issued for her in Michigan because she failed to appear in a hearing related to her separate criminal case. And so after representing Patrick Byrne at this hearing in federal court in D.C. She was then taken into custody for on that bench warrant in Michigan and, and ultimately transported back to Michigan to go, you know, appear before a judge there. But it, it's all just a wild story. And of course relates to again, this broader effort to access that in the wake of 2020 people trying to access voting machine data in an unauthorized way.

Benjamin Wittes: All right. Fortunately, as we are running low on time, we only have three questions. We're going to start with Josh. We've answered the first part of his question. He asks: what is up with Trump's civil trials and tribulations, in particular, E. Jean Carroll and the New York State civil fraud judgments. Roger, we you've gone over the E. Jean Carroll case pretty carefully, but what, do we know anything about the state of the of the civil fraud judgment?

Roger Parloff: I'm afraid I, I don't right now. I, I need to look that one up.

Benjamin Wittes: Yeah, it came after, I think the answer is Josh, it has been scheduled, but it has not yet been briefed, but I'm not sure I'm right about that. And as to Blassingame, about whom somebody asks in the chat, it is in discovery and will be mired there for a little while. Penelope asks: if this isn't too off topic, I wish to know why the Iranians, or the hackers, if they're not Iranian, do not just put the hacked materials up on a website or sites. Forgive me, Quinta, I am in agreement with Don Jr. on these materials, unless they are boring.

I would like to say on this, so Quinta wrote in praise of the decision of the press to be judicious with this material. So my answer to this, I will take this myself, is that the reason, likely, the reason that the Iranians, and there is a good reason to think it was the Iranians, did not do this stick it up on the web, is that that is actually not the most effective way to get them released. And the most effective, and as the Russians found eight years ago, when you can launder stuff like this through reputable news organizations, it actually works better. And, and so my prediction, which is worth what you all pay for it, is that they won't just create a, you know, a website and stick it up there themselves unless they really have to. What they will do is work their way down the news food chain to, you start with, you know, elite media outlets like the New York Times, the Washington Post, Politico. Then if you can't get any of them to bite, you go to like a little bit more partisan, a little bit less reputable ones, and then you do a little bit less reputable than that. And depending on how, you know, you keep going down the food chain until you get somebody who will cooperate. And then you do, then when that person breaks the story, then that puts the big newspapers in a more difficult position. How do you keep up? And, and so that, that is, I think, the way they will do it. And it's a very interesting question. Will it be successful?

As to apologizing to Quinta, as Quinta, who is not here to defend herself, no, she has nothing to defend, but I will say, she says in the article that it's a very hard choice for a media organization. And let's stipulate that there's something new and interesting and valuable in, assuming there's something new and interesting and valuable and you're able to authenticate it, it's actually a pretty hard thing to justify not running something like that because it's an electoral interference. This is the problem the press had in the Hunter Biden laptop case four years ago. It's the problem that the press dealt with in the context of the Russians eight years ago, and there's no simple answer to it. And so I don't think the answer that, you know, that you the questioner jokingly puts forward, which is, hey, I want this stuff out there. That's not a crazy answer to the problem. It's the answer that the press used in 2016, thought a little bit better of in 2020, in rightly or wrongly. And by the way, got criticized both times for either being too aggressive or not aggressive enough. And so I don't think there's a, I don't think you owe Quinta any apologies for disagreeing with her instincts, and I don't think she would think so either, though I will let her speak for herself on that.

Finally, we have a question from Andrew: In his interview with Elon Musk on Monday. Trump suggested that he would move to Venezuela if he lost the election. Does this make him more of a flight risk and influence his bail status in any case? Roger, what do you think? Does, does, does Trump saying he's gonna flee to Venezuela change, make him a flight risk?

Roger Parloff: I, I don't. I don't imagine DOJ or special counsel is going to object if that's what he wants to do.

Benjamin Wittes: Oh, that was not the answer I was expecting. Anna, what do you think?

Anna Bower: I mean, no, that everyone knows that guy's not moving to Venezuela. But no, I, I mean, I, no, I, I don't think so. But, like, and I don't think the DOJ is going to, or any prosecutor-

Benjamin Wittes: Keep going with that. That's what I, where I thought Roger was going.

Roger Parloff: OLC would be delighted to have him go to Venezuela and just get, get back to civil suits.

Anna Bower: Look, I don't think that this is something that a any prosecutor where his bail may be revocable is going to make a kind of motion to revoke his bail or seek to revoke his bail based on this comment that he made to Elon Musk. So I don't think that it, it realistically affects his bail status in that way. Is that where you were thinking, what you were thinking then?

Benjamin Wittes: I think you guys are overthinking this. No prosecutor is going to walk into court, and, and they haven't, and tried to attach bail conditions. They've asked that he be released on his personal recognizance, and that's what's happened. It would be extremely difficult for Donald Trump, who is surrounded by career law enforcement officers at all times, that's what the Secret Service are, to flee the country. And I don't think any court is likely to take that possibility seriously without being briefed on it by the Justice Department, the Special Counsel's Office, which is not going to do it. And they've been quite deferential to him as a former president, a criminal defendant, and I think that is likely to continue. I know it is fun to speculate about circumstances in which he might get locked up, but nobody, including Justice Merchant or the New York prosecutors who had to deal with serial violations of court orders and the like, in fact urged that, and I think that is unlikely. They are most unlikely to start now.

All of which brings us to the end of this week's Trump Trials and Tribulations. Look, guys, if you're watching this on YouTube and you're thinking, I have this question that Ben did not even pose to Anna Bower and Roger Parloff, and I feel like that hurt my feelings. Join us in the inner circle in the Zoom conversation where you can participate in the Greek chorus chat, where you can submit questions and have them answered. And where you can get to know this delightful group of people that hangs out at Lawfare Trump Trials and Tribulations. Become a material supporter of Lawfare. You can do it. You know you want to. You know you should, because nobody else does this kind of coverage, this weekly survey of the landscape, of all the trialing and tribulating and you can do it. From the comfortable upstairs chair studio, the doctor's office room, waiting room in the palatial mansion, and the sconce studio we will see you next week.