A Legal Roundup (02.15.24)

Developments in four cases show how the trials of Donald Trump will dominate the news soon.

Screen capture courtesy of Sky News

With four major criminal cases and big civil suits pending simultaneously against him, Trump’s court schedule is looking pretty insane. Welcome to the Spring of Accountability.

There are developments

• in the D.C. criminal case, where Trump is charged in three conspiracies around January 6;

• in the Manhattan case where he faces 34 counts of falsifying business records;

• in Georgia where he has joined co-defendant Mike Roman in trying to get DA Fani Willis disqualified over an alleged inter-office romance; and

• in New York civil court, where we are all awaiting Judge Arthur Engoron’s ruling in the civil fraud action brought by Attorney General Letitia James.

Let’s break these down.

Will they stay or will he go? (To trial, that is.)

Yesterday, Special Counsel Jack Smith filed his opposition to Trump’s request for a “stay” from the Supreme Court. Trump seeks a pause on his criminal case in D.C. while he appeals the unanimous, three-judge ruling that found he’s not magically immune from criminal prosecution. 

As I’ve written about earlier, there are many ways that the Court could rule. 

Trump is hoping for one that grants him maximum delay, which would be a stay for the length of time he pursues his appeals, first before the entire D.C. Circuit Court of Appeals, then ultimately before the Supreme Court. Trump’s lawyers are hoping to eat up months of time through these appeals while the case is stayed, enough to make it impossible for him to face trial before the election.

Jack Smith is asking for no stay from the High Court while the appeals are pending. “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict—a compelling interest in every criminal case and one that has unique national importance here, as it involves federal criminal charges against a former president for alleged criminal efforts to overturn the results of the presidential election, including through the use of official power,” Smith wrote in his opposition brief.

The Supreme Court could also split the baby and stay the case while also requiring Trump to file his appeals promptly, resulting in less time eaten off the calendar. A key question is how quickly the Supreme Court issues its ruling on whether it will pause the case, and if so, for how long. They meet on Fridays, so it’s possible they will issue a ruling then, but it’s more likely that it will come out next week.

To issue a stay, five justices would need to agree. One of the main considerations for a stay is whether the party asking for one is likely to prevail on the merits of the claim. Here, Trump’s legal arguments around absolute immunity are very weak, and the D.C. Circuit dismantled them all fairly effectively. We’ll have to see if SCOTUS agrees.

The sleeper case in Manhattan

Meanwhile, today in Manhattan, Judge Juan Merchan held a hearing on Trump’s “Hail Mary” motions to dismiss and rejected arguments to toss the case. He importantly also confirmed that he intends to set a trial date next month on Trump’s 34 counts of falsifying business records, likely making it the first Trump criminal case to go to trial.

While we haven’t heard much about this case in many months, that doesn’t mean it isn’t legally perilous for Trump. His allies and spokespersons dismiss the charges as politically motivated, which is no surprise, but also something of a runt case because it involves hush money payments over a personal affair.

But as Joyce Vance points out in her Civil Discourse newsletter, the better way to see the charges are that they are the tip of what later became a pattern of Trump attempting to perpetrate election fraud. Trump covered up the fact that he paid hush money to adult film star Stormy Daniels, true, but importantly he did it so that the news wouldn’t reach voters. After all, Trump was married at the time, and he was already under enormous scrutiny over allegations of sexual misconduct, and news of the affair could cost him the election.

It’s not illegal to try and keep private matters private, but it is illegal to falsify business records in order to hide the paper trail of your payments in order to keep the scandal from reaching the voters’ ears. A big issue is whether these actions rise to the level of a felony in New York. But there are clear instances where falsifying business records has led to felony convictions, where the underlying crime was to attempt to conceal a federal crime, in this case election finance law violations.

More importantly for the current political stakes, this is a case that will be very hard for Trump to knock out before the election. The crimes Trump is accused of began before he was president, so he can’t claim immunity gets him out, and he’s not entitled to a stay while that get sorted by the Supreme Court. And as things stand, it is scheduled to begin March 25. If the Supreme Court does delay the D.C. case, that is all the more reason for Judge Merchan to move forward with the trial date on the calendar, rather than to bump it in favor of bigger federal cases.

The Devil’s down to details in Georgia

Down in Georgia, Judge Scott McAfee will hear arguments over whether DA Fani Willis should be disqualified from the case after a defendant, Mike Roman, leveled salacious allegations about a romantic relationship between Willis and one of the lead prosecutors on the case. 

I have largely stayed away from reporting on this matter because there has been a paucity of actual evidence presented so far. And until there is evidence, these are just allegations, and the source is less than reputable. That said, the allegations here, according to Roman, are that Willis’s top deputy, Nathan Wade, was engaged in a personal relationship from which Willis benefited financially after she hired him. 

Willis has admitted in court papers to a personal relationship with Wade, but stated that it began after she hired him to the team. While the two took personal trips together, it appears at least so far that they split expenses evenly or alternated getting the tab. In other words, there is not yet evidence that Wade used money earned as a prosecutor to lavish gifts upon Willis, as Roman implies.

Roman states he has witnesses who will attest that the relationship began before Wade was hired, but a lot may turn on what is meant by a “relationship.” In the end, however, this is a lot of smoke that obscures the baseline fact that it’s simply not a conflict of interest to have an interoffice relationship with a prosecutor. 

It might be unseemly, and it might open Willis and Wade up to personal attack, but they are on the same side in this case. Roman and the defendants who joined him in the motion to disqualify Willis and dismiss the case will have to connect how that relationship, even if proven, is somehow unfair to them.

We’ll have to see what evidence Roman produces at the hearing.

The End of the Trump Organization?

And finally, on Friday Judge Arthur Engoron, who presides over Trump’s civil fraud trial in New York, is expected to issue his ruling on liability, which could cripple the Trump Organization with fines up to $370 million, which is the amount New York state Attorney General Letitia James is requesting, or even end Trump’s right to do business in the state of New York.

One of the wildcards here, and the reason Judge Engoron may have delayed issuing his ruling, is the plea deal that Trump’s CFO Allen Weisselberg allegedly has been negotiating with prosecutors. Weisselberg testified on the stand that he was not involved in efforts to inflate the value of Trump’s penthouse property in New York. But an article by Forbes contradicted that testimony directly. As The New York Times reported, 

Weisselberg had lied under oath. The article cited emails and notes between the former chief financial officer and the magazine, which compiles a list of America's richest people, showed that Mr. Weisselberg “played a key role in trying to convince Forbes over the course of several years” of the apartment's value.

Perjury by the Trump Organization’s own CFO in the case could result in Judge Engoron increasing the monetary penalties and imposing harsher restrictions on the Trump Organization’s right to do business in the state.

Trump may care more about his business empire than he does the presidency or even his own personal freedom. It is his identity and his pride, no matter how falsely he has inflated its value. On Friday, with Judge Engoron’s expected ruling, we may see that pride go before a mighty fall.