Jan.09

electoral-vote.com

Dem 51

   

GOP 49

Trump Legal News: Shot in the Dark

Yesterday was the deadline for pre-trial motions in the Georgia election fraud case, and there was a flurry of them, including three different ones from Donald Trump asking that the case be dismissed. Here's a rundown:

• A motion asserting that Trump was acting in his official capacity, and that he's therefore covered by presidential immunity. This is the lengthiest of the three motions, and must have cost five (or even six) figures' worth in billable hours. But all the verbiage and legal citations in the world can't overcome the fact that mucking around in state elections isn't the responsibility of federal officials (even the president) and that, in any case, some of his mucking around came after he was out of office.
  
  
• A motion declaring that Trump has already been tried, and cleared, on these charges. Consequently, double jeopardy has attached, and he cannot be tried again.
  
  If you just can't remember when he was tried for his Georgia shenanigans, you are to be forgiven. Team Trump is claiming that his second impeachment was the "trial" and that is why he can't be tried again. The first problem here is that the second impeachment was for his actions on 1/6, not his actions in Georgia. The second problem is that there is plenty of jurisprudence making clear that impeachment is not a criminal prosecution, and so there is no double jeopardy.
  
  
• A motion asserting that Trump cannot be prosecuted because... wait for it... he didn't realize that what he was doing was against the law. Really. Here's the key portion:

  Our country has a longstanding tradition of forceful political advocacy regarding widespread allegations of fraud and irregularities in a long list of Presidential elections throughout our history, therefore, President Trump lacked fair notice that his advocacy in the instance of the 2020 Presidential Election could be criminalized. President Trump, like all citizens, is entitled to have fair warning as to where the line is drawn which separates permissible activity from that which is allegedly criminal.

  Good luck to Team Trump as they try to convince a judge that the former president was unclear on the difference between "forceful political advocacy" and racketeering. Perhaps John Gotti thought he was just participating in "vigorous capitalist discourse" when he had his henchmen shake people down for protection money.

Remarkably, the three Trump filings might not be the most outlandish to be submitted on Monday. No, that honor may well go to low-level co-defendant Michael Roman. In his motion, he asks for the case against him to be dismissed, because Fulton County DA Fani Willis is in a romantic relationship with one of the freelance attorneys her office hired to assist with the case, and therefore "the entire prosecution is invalid and unconstitutional because the Fulton County district attorney never had legal authority to appoint the special prosecutor, who assisted in obtaining both grand jury indictments."

There is no proof in the 127-page document, just a lot of assertions that "we've looked into this," along with a lot of insinuations and vague claims. So, this is nothing but gossip, and we do not see how the Court can possibly take notice of it. And even if it's true, it may be a little icky, PR-wise, but the argument that it nullfies the entire prosecution seems dubious, at best.

In short, it was a day full of Hail Mary passes. Sometimes a Hail Mary works, of course, but not very often. Well, unless it's (Z) playing Madden '94 with Stan Humphries throwing to Vance Johnson. Then it works every time.

In addition to all the Georgia dealings, there is also a potentially interesting note related to the Washington case. The Washington-based firm Arnold & Porter, which is clearly not MAGA-friendly, has filed a friend-of-the-court brief with the D.C. Court of Appeals. The brief points out that in Midland Asphalt Corp. vs. United States (1989), with Antonin Scalia writing for the majority, the Supreme Court decreed that interlocutory appeals are only allowed in a small number of circumstances: motions to reduce bail, questions of double jeopardy, and issues related to the speech or debate clause (whether or not legislators can be questioned about their work in the halls of Congress). Since bail is not an issue here, double jeopardy does not apply, and Trump was not a member of Congress, the folks at Arnold & Porter argue that the Court of Appeals has no jurisdiction here, and that they cannot weigh in on the question of presidential immunity until after Chutkan has conducted a trial and a verdict has been rendered.

We tend to suspect that the Court of Appeals (and the Supreme Court) will want to resolve this matter once and for all, and also that "speech and debate clause issues" are close enough to "presidential immunity" that Midland does not prohibit them from hearing the matter right now. But you never know. (Z)