Friday Round Up! 2/2/24

There's no reason for Trump's trials not to go forward, even if they run right up to (or into) the election.

The big news this week was that Judge Tanya Chutkan scrapped her originally scheduled trial date of March 4 for the federal charges against him for January 6. The reason is that the D.C. Court of Appeals has yet to issue its ruling on Trump’s claim of “absolute immunity” from prosecution — that court heard oral arguments on January 9. It’s not clear why the court is taking so long, since the oral arguments did not go well for Trump and none of the judges were buying his theory of the Constitution. However, Judge Karen Henderson, the more conservative judge on the panel, may have a slightly different view of the immunity question, so it’s possible she is writing separately or trying to reconcile her approach with the other judges. (Having worked as an appellate law clerk I know that judges circulate their drafts and make edits and changes before they all sign on together, and that can sometimes take a while.) There was also a jurisdictional issue which may be mucking up some of the legal reasoning as well.

In any event, Judge Chutkan has indicated that she will be able to set a new trial date “if and when” the D.C. Circuit rules on the immunity claim. I’ve heard some scuttlebutt that this could create issues for the trial on the back end, on the theory that the Justice Department has an internal policy prohibiting it from taking overt prosecutorial actions within 90 days of an election. The idea here is that if Chutkan can get the trial completed by early August, she will somehow be precluded from proceeding with the trial until after the election. However, I think this view is mistaken on a number of fronts.

First, the Justice Department’s policy involves taking overt investigative steps within 90 days of an election. To understand why, remember that federal investigations take place largely out of the public eye. The policy rests on the premise that it is unfair to a candidate who has not been formally charged with a crime to have, say, FBI agents surface right before the election to execute a search warrant, or convene a grand jury, and to have a cloud of suspicion over their head which they can’t contest — that could influence the election, even if the individual ends up not being charged. We saw a version of this in the Mueller Report, where the Special Counsel’s office felt that it would be unfair to accuse Trump with obstruction of justice in the report if the Justice Department was unable (again because of its internal policy) to formally charge him, and give him the opportunity to clear his name. (COUGH COUGH would that Jim Comey had kept this in mind.)

Folks, that horse has left the barn. Trump has already been formally charged, and the public is aware of the crimes he has been accused of. He is already under a cloud of suspicion. Not proceeding with a trial isn’t protecting his due process rights; in fact, Trump can (and I’d argue, should want to, if he is innocent) have the opportunity to vindicate himself in a court of law.

Second, the Justice Department policy is an internal policy (not a law), that is promulgated by the executive branch against executive branch officials. Trump’s case is now under the jurisdiction of the federal courts — a separate and coequal branch of government. The Justice Department has no more authority to tie the hands of a federal judge than a judge has to, say, direct the course of an FBI investigation. Judge Chutkan’s duty is to treat Trump fairly and like any other defendant, and that means proceeding apace with the trial, the election notwithstanding.

Finally, the public has a right to know! Voters should make their decisions with full information. Would they be voting for a convicted felon, or not? This seems like a pretty big factor that would matter to a lot of people — like moderate Republicans and independents — and it turns the purpose of giving voters a fully informed choice on its head by making that determination after they have cast their vote (or never making that determination, since if Trump is elected and the trial is delayed until after he assumes office, his Justice Department will dismiss the charges altogether).

To allow the election to affect the scheduling of the trial would create all the wrong incentives for bad actors, undermine the rule of law, and disadvantage the electorate. I rest my case.

In other news, Renato and I discussed the crazy happening in Texas (more background info in the recommended article this week):

Articles worth reading:

• For more detailed reading on the border issue and the various lawsuits emanating from it, this explainer by

  Steve Vladeck
  is excellent

Upcoming events:

• NEXT WEEKEND: Wine & Fries Happy Hour with George Conway, Sunday, February 11, 8 p.m. EST. This is going to be really fun and informative, especially on the heels of Trump’s Supreme Court argument about disqualification under the Fourteenth Amendment. George is one of my favorite legal analysts and is also one of the funniest people I know. Zoom link will be sent to Wine & Fries (founding) members three hours before the event.

• Guest Speaker Nina Jankowicz, Thursday, February 29, 1:30 p.m. EST. I’m thrilled to have Nina, Vice President of the Center for Information Resilience and author of How to Lose the Information War and How to be a Woman Online, join our class to discuss social media, disinformation, and what we can learn from other countries tackling this problem around the world. Zoom link will be sent to paid subscribers three hours before the discussion, and will be recorded and posted for paid subscribers the following day.

• Guest Speaker Barb McQuade, Thursday, March 28, 4 p.m. EST. Speaking of my favorite legal analysts, I’m thrilled to have Barb be a guest speaker for my class, Preserving Democracy in the (Dis)Information Age. Barb is about to release her book, Attack from Within: How Disinformation is Sabotaging America, and I’m excited to get her perspective on where we are as we head into the 2024 election. Zoom link will be sent to paid subscribers three hours before the discussion, and will be recorded and posted for paid subscribers the following day.

• Freedom Academy Book Club, Date/Time TBA (likely early April).  We’ll be discussing Gun Country: Gun Capitalism, Culture, and Control in Cold War America with author Andrew McKevitt. Drew’s book illuminates how our society became so saturated with guns, and how gun ownership intersects with race, politics, and money.

More to come this week as the Supreme Court hears oral arguments in the Colorado disqualification case, so stay tuned!