Nov.20

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Trump Legal News: Slow Ride

Lawyer-reader A.R. in Los Angeles, CA has consented to do an update on the various legal situations involving Donald Trump and his acolytes:

• Mark Meadows is officially out of runway, as the Supreme Court has denied his petition for cert to have his case moved to federal court. Thus, he'll have to stand trial in state court in the Georgia and Arizona cases where he's been indicted.
  
  
• Speaking of Arizona, the judge in that case, Judge Bruce Cohen, has recused himself after an e-mail surfaced where he asked his fellow judges to defend Kamala Harris against attacks that she's a "DEI hire." He made the comments in an e-mail forum for judges. Unfortunately for the prosecutor, Cohen stepped down before ruling on defendants' pending motion to dismiss the case. Whoever is assigned to the case will decide that issue. No new judge has been named yet.
  
  
• In the New York fraud case, Manhattan AG Alvin Bragg filed an opposition to defendants' motion to dismiss and argued that the jury's verdict should be respected but sentencing delayed until after Donald Trump leaves office. It's not all that unusual for sentencing to be delayed by years if, for example, the defendant is cooperating, or appeals are being resolved. Judge Juan Merchan could still hand down a sentence on November 26, which would most likely be a fine given the realities of a new Trump term. But if the Judge agrees with the prosecutor and delays sentencing, then Trump could still face jail time once he leaves office for the final time. Either way, he will remain a convicted felon.
  
  
• In Special Counsel Jack Smith's 1/6 case in Washington, DC, prosecutors have asked Judge Tanya Chutkan to give them until December 2 to decide how to proceed; by all accounts the plan is for Smith and his team to resign before Trump takes office, wind down the case and issue a final report. The Special Counsel's office is required to provide a confidential report to the AG, who can choose to make it public. A filing to the Court could include a request for dismissal, either with or without prejudice. Smith could very well ask the Court to dismiss the case without prejudice so it could be revived once Trump leaves office. If the Judge agrees, that order would not be appealable, as it does not constitute a final judgment on the merits. I could see Smith doing that, especially since there really isn't much risk of evidence getting stale or witnesses' memories fading because all the evidence is pretty well known and locked in and well documented. It could also force Trump to make a choice about whether to try pardoning himself, which could make him look guilty. The difficulty is how to ensure that all the special counsel files are protected and preserved with this new administration. Perhaps they could turn everything over to the U.S. Senate for safekeeping (or maybe the courts). Alternatively, there are plenty of spare bathrooms at Mar-a-Lago.
  
  
• In Florida, the classified documents case looks pretty dead in the water. Smith has asked the Eleventh Circuit to put the appeal on hold until December 2 while they decide how to proceed. Now that Trump is president-elect, the case is essentially moot and there is really no reason to proceed with the appeal. The district court's decision has no precedential effect and can, and will, be ignored by other courts. Yes, Smith COULD continue with the appeal and, if he prevails, could also ask for a request to dismiss without prejudice. But that seems unlikely, as an incoming AG in 2029 probably won't want to be saddled with this landmine. And with Trump out of the case, I don't see Smith's office proceeding only against co-defendants Walt Nauta and Carlos De Oliveira. Besides the fact that Trump will just pardon them once he takes office, they played a minor role compared to Trump's deliberate and willful withholding of classified and sensitive material.
  
  
• In Georgia, the appeals court has decided to cancel the oral argument that had been scheduled for December 5 on the issue of whether Fulton County DA Fani Willis has a disqualifying conflict of interest. That's not especially unusual—it generally signals that the Court can rule on the motion papers and doesn't need additional argument. Assuming Willis remains on the case, she could dismiss Trump and proceed with the rest of the defendants. Depending on the outcome of those cases, once Trump leaves office, she could bring new charges against him. That could actually work in her favor—it might be easier to get guilty verdicts without Trump, secure cooperation before sentencing and use that cooperation in her later case against Trump. Willis seems pretty tenacious, so I suspect she'll find a way to keep the case against Trump alive, even if it's just on life support. Heck, maybe by the time she gets to him, HE will be on life support.
  
  
• Speaking of illegal conduct, various media outlets are reporting that Trump plans to "declare a national emergency" and use the military to conduct mass deportations. The media has neglected to report that this would be a blatant violation of several laws and the Constitution. Let's not forget that Trump's favorite henchman, Tom Homan, the once and future ICE director, raided factories and other workplaces in his first stint in the administration. Besides the fact that he swept up American citizens and others lawfully in the country, a little thing called the Fourth Amendment to the Constitution prohibits searches and seizures without probable cause. And having brown skin is not probable cause of a crime. At least it wasn't before 2025.
  
  Also, the National Emergencies Act does not authorize the U.S. to carry out deportations. Immigration law affords people who have entered the country without authorization the right to apply for asylum and those cases can take years to resolve due to the massive shortage of Immigration Law Judges; they are lawfully in the country while those cases are pending. At the border, CBP already uses an expedited removal process to prevent those without a clear basis for asylum from entering the country at all. That is why there has been a dramatic decline of those eligible to remain in the country while their cases play out. There are very few people who cross into the U.S. without encountering some part of the system. As has been pointed out many times before, more people overstay a legal visa than enter the country illegally.
  
  On top of that, the Posse Comitatus Act prohibits the U.S. military from engaging in domestic law enforcement. There is some debate whether the National Guard falls under this law, but if it is being used to enforce federal law, as opposed to state law, it undoubtedly does. The only exception is the Insurrection Act, which allows the president to suppress a rebellion against the government. The Brennan Center has a good explanation of the Posse Comitatus Act and its weaknesses here.
  
  Of course, the major weakness is the appointment of a DOD director who relishes the thought of using the military to attack people inside the country and a spineless Republican Senate who will confirm him.
  
  
• With a president and his department heads and advisers all champing at the bit to use the military domestically, a weak Republican Congress that may be unwilling to stop it, and a media that doesn't know or doesn't care about Americans' basic rights, we are entering a break-glass moment. No one should think they are safe once these guardrails are breached.

Thanks for the update, A.R.! (Z)