Legal Showdowns and High Stake Moves

Donald Trump, AG Letitia James, and DA Fani Willis. Photos courtesy of the Philadelphia Inquirer

With multiple developments across several cases, it’s time for a legal lightning round!

In this round, we’ll start with a case we haven’t talked about in a while: the state civil action against the Trump Organization, along with Daddy & Sons, brought by New York Attorney General Letitia James.

Then we’ll take a look at the dueling briefs in federal court in Atlanta. To remove, or not to remove? What are the arguments, and what are legal experts saying? Warning, this is a rather dense mat of legal argument, but I’ll cut through it step by step to try and make sense of it.

After that, it’s over to state court in Fulton County, where Judge McAfee has made a routine order that could prove historic, and where the defendants are jockeying to see who has to be tried with whom and when. (Wait, I gotta sit with Sidney Powell at the same defense table? No thank you!)

Finally, we’ll review what Gov. Brian Kemp and Speaker Jon Burns had to say about efforts underway by certain state legislators in Georgia to remove Fani Willis from the case entirely.

Ready? It’s Friiiiiiiday, and let’s play legal lightning round!

Summary judgment moment in New York

In a civil matter, before trial commences, one or both parties in a case can make what’s called a motion for summary judgment. This means that the party believes that, based upon the material facts not in dispute, they are entitled to judgment as a matter of law. The judge, and not the jury, decides summary judgment motions.

Back when I was a litigator, this was always the biggest, most stressful moment of truth before trial. Summary judgment is a potential knock-out blow, and so that meant all hands on deck and very late nights.

James has moved for what’s called “partial summary judgment” on the question of whether the Trump Organization and the Trump men (Ivanka was released from the case on statute of limitations grounds) committed fraud. She has cited a “mountain of evidence” that fraud in fact occurred. If that can be decided as a matter of law, the only thing left for a jury to weigh are the damages. James’s specific argument is that, based on the evidence, there’s no dispute that the defendants falsely valued their properties in financial statements compared to their actual values. And the discrepancy totaled billions. 

The defendants filed their own motion for summary judgment (because of course they did) arguing that all the claims are time-barred. They also argue that there are no damages; no one was injured, they claim, even if James could prove fraud, because no one relied upon the false statements. (This is probably not going to fly; James will counter that the parties truly injured by the false statements were the people of New York, not the bankers.)

The case is two months out from trial. James is seeking $250 million in damages and to strip the Trump Organization of its license to do business in New York. Very high stakes, indeed.

Wonky, untested federal law on removal

Ready for a quick lesson on the dense law of federal removal? If you can understand what I’m about to lay out, you could probably become a successful appellate lawyer. (And if this goes a bit over your head, don’t beat yourself up.)

Here is my best attempt to explain what’s going on with minimal legal mumbo jumbo.

Defendant Mark Meadows is seeking to remove the Georgia state case to federal court. He claims removal is proper because 1) he was a federal official acting within his chief of staff duties, and 2) he has what’s called a “colorable” defense under federal law.

District Attorney Fani Willis opposes removal. She first argues that Meadows was acting on behalf of the Trump Campaign, and not as chief of staff for the White House, by entering into a conspiracy to overturn the Georgia election in 2020. And second, she argues that he can’t maintain a colorable defense of immunity under the Supremacy Clause. That defense, in addition to requiring a showing that he was acting within his official capacity as chief of staff, further requires Meadows to show what he did was “necessary and proper to the office.”

Most of the evidence, undisputed by Meadows and even admitted to in his papers, shows he was acting on behalf of the Trump Campaign when getting on phone calls and pressuring the Secretary of State, offering to fund signature matching audits using Trump Campaign funds, and coordinating the fake elector scheme. Meadows had made a rather weak argument that he was busy setting up these meetings and doing all these other things to try and “land the plane” to a smooth transition of power. (See my earlier piece on why my B.S. meter was in the red zone over this.)

But the Judge Steve Jones asked a follow-up question to which no prior case seems to have a clear answer: If any of the “overt acts” alleged in the indictment was done by Meadows under color of law as chief of staff, does this require removal of the whole case to federal court?

Willis argues no, because this is a RICO conspiracy. Meadows was indicted for entering into the conspiracy, and not for any of the “overt acts” that he or others took in furtherance of the conspiracy. The broad reach of the Georgia RICO statute means that all co-conspirators are responsible for the crimes of all the other co-conspirators, whether they took any actions themselves or not. The crime was joining in the conspiracy. 

Meadows hit back with case law addressing examples of where one of the charges against a federal official fell under the defendant’s official duties, and therefore the whole case got removed. These are fine, and they may persuade Judge Jones, but a closer review reveals that none of his citations appears to involve the unique case of RICO conspiracy.

But Meadows has a possibly bigger problem, highlighted by law professor Lee Kovarsky and argued more or less by Willis in the second half of her brief. Judge Jones’s follow-up question logically raises a significant issue that impacts not just the first but the second requirement for removal—that Meadows must have a “colorable” defense based in federal law. 

Remember, Meadows is relying on immunity under the Supremacy Clause. But as Willis points out in her papers, a defense isn’t “colorable” unless it is a complete defense to a charge. Meadows? He didn’t think to address that issue at all—a possible blunder.

Here, the charge is RICO conspiracy, and the illegal thing Meadows did was to enter into the conspiracy. The overt acts alleged in the indictment tie him more closely to it, but they aren’t necessary for him to be found guilty. That’s because, as we hopefully all know by now, in a RICO conspiracy you’re responsible for all the acts of your co-defendants so long as you joined the criminal association.

That means this: Even if the Supremacy Clause knocked out all of Meadows’s “overt acts” because he was acting in his official capacity (and it would not), that still wouldn’t win it for Meadows. He’s liable for having agreed to the conspiracy, even if he himself did nothing at all—because someone else in the criminal group did.

I know, it’s a bit crazy, but that’s how RICO conspiracy works. As my earlier piece on Georgia RICO law noted, you’re swept up in the whirlpool if you join the criminal group, making you, as a matter of law, responsible for the actions of others within the group. (The law was written broadly to target street gangs, but it rather karmically now applies to these white collars, too.)

Otherwise put, Judge Jones’s question—what happens on removal if one overt act was done by Meadows within his role as chief of staff—is a red herring. Willis could have alleged zero acts by Meadows, other than entering into the conspiracy and criminal plan, and the Supremacy Clause would not save him. It’s therefore not a complete defense, and removal is improper.

We’ll see if Judge Jones agrees.

Lights, Cameras… Severance?

Two things to track over in Georgia state court.

First, Judge McAfee issued an order allowing a live stream of the proceedings on the court’s YouTube channel. Talk about transparency! My own belief is that, while this will become a bit of a social media circus like the Johnny Depp / Amber Heard trial, the trade-off is worth it. The public will get to see and experience the testimony of witnesses, as well as view for themselves the demeanors of the judge, lawyers and defendants. This importantly includes the ex-president, assuming the case stays in state court. There’s simply no substitute for that live court feel.

Second, Willis has asked the judge for what amounts to a clarification about who is going to trial when, and with whom, with a specific request that those seeking to go early are advised of what rights they will be giving up due to an accelerated trial schedule. She wants to make sure they don’t later argue on appeal that they didn’t know what they were getting into when they demanded a speedy trial.

As things stand, only one trial date has been set—for lawyer Kenneth Chesebro on October 23, 2023—but other defendants including Donald Trump and Sidney Powell have asked their case be severed from the other defendants. Willis would rather try them all together, but this isn’t likely, given that at least two of the defendants, Chesebro and Powell, have asked for a speedy trial and want to get it over with quickly.

The court has yet to rule.

Traditional GOP conservatives stand up for the rule of law in GA

In my piece yesterday in The Big Picture (subscribe here!), I laid out how Republicans, at both the national and the state level, are working openly to interfere with active federal and state prosecutions. Subpoenas, hearings, threats of impeachment, threats of removal—it’s all very nasty and undemocratic.

Specifically with respect to Georgia, there have been calls by MAGA loyalists for a special hearing to impeach Fani Willis for her “politicized” prosecution of defendants, including Trump. There have also been rumblings around using a new law aimed at state prosecutors to launch an investigation into her handling of the case, to put political pressure upon her ongoing work, and even to remove her entirely for cause.

But Gov. Kemp wasn’t having it. In a press conference yesterday, Kemp called the moves to stop Willis “political theater that only inflames the emotions of the moment.” In forceful terms, he declared that a special session “would ignore current Georgia law and directly interfere with the proceedings of a separate but equal branch of government.” He also put the kibosh on using a new oversight commission to sanction prosecutors as some kind of leverage against Willis.

“The bottom line is that in the state of Georgia, as long as I’m governor, we’re going to follow the law and the Constitution, regardless of who it helps or harms politically.”

Kemp wasn’t standing alone. Georgia House Speaker Jon Burns also came out in against a special session, saying in a letter to his caucus that it’s impossible to take away the money from Willis’s office without stripping it from Georgia’s other 49 district attorneys. And, he continued, “Targeting one specific DA in this manner certainly flaunts [sic] the idea of separation of powers, if not outright violates it.” Burns admonished that such a move would violate lawmakers’ oaths to uphold the U.S. and Georgia constitutions.

“We trust that our criminal justice system will deal with this matter impartially and fairly, and we will not improperly intercede in this matter in direct contradiction to the oaths we took,” Burns warned.

The support of Kemp and Burns is a critical turning point for accountability and a big win for the rule of law, both in Georgia and nationally. It now appears Willis will be able to continue her work without serious threat of interference from the state—precisely how things should be.

Willis and her office will be trying the case, no matter if it is in federal or state court. She has already proven herself quite capable and prepared for both the rapid-fire, legal maneuvers of the many defendants and the unprecedented outside political pressures. And Trump is no doubt furious at Kemp and Burns for cutting off this particular avenue of political attack.

Oooh! Maybe he’ll write another angry post about them on Truth Social. So effective, and not at all self-damaging.

Have a great weekend!