The Week Ahead

Good morning, and happy Sunday. Legal land is buzzing, even over the weekend, and we are starting to get a glimpse into how Trump and his lawyers are faring before no-nonsense Judge Tanya Chutkan in D.C.

The fight over the protective order

One of the first things that the government will want in place in its January 6 case is a protective order that will, at least in theory, prevent Trump or his lawyers from disclosing important evidence turned over as part of the government’s discovery obligations. They need this order because Trump otherwise could go after witnesses using information he receives, based on the testimony they have given or intend to give.

He already has done this, by the way. Last night, he put another target on former vice president Pence’s back with a post on Truth Social claiming Pence had gone over to the “dark side” and denying that he ever claimed Pence was “too honest” to do the thing Trump wanted him to do.

He also earlier issued a general threat against anyone who might challenge him by posting, “If you go after me, I’m coming after you!”

Prosecutors promptly used the above threat to support their protective order motion, which Trump’s lawyers sought to delay by three days. Judge Chutkan denied that extension request rather summarily, signaling she is not interested in putting anything off.

The protective order is modeled after one that a Trump-appointee, the Hon. Carl Nichols, used in another January 6 criminal matter. Judge Chutkan now wants to see the defendant’s proposed redlines to that.

Pushing the bounds

Many have argued that Trump’s generalized threats and his specific targeting of Mike Pence comprise witness intimidation and obstruction of justice, and that therefore the court should find him in violation of his pre-trial bail conditions and send him to detention pending trial. They rightly point out that any other defendant would probably be sent to jail for having violated these terms after agreeing openly in court to them.

Smith is unlikely to ask for such a move, however. It would immediately set up a massive side show over whether the leading GOP candidate can be jailed because he exercised his right of “free speech.” While there is a good case to be had that this is not free speech but rather witness intimidation and obstruction, that is not what Smith wants to be arguing over now. In fact, as I discussed in an earlier piece, Trump’s trial on three charges of conspiracy plus obstruction is not at all about his right of free speech but rather his criminal actions, so any narrative that focuses on free speech out the gate could bog that down, delay the trial, and fire up Trump’s base. And this is precisely what Trump wants.

Smith needs to set the agenda and the playing field in this case, not Trump. From where I sit, and hard as this is to witness, we should let the judge admonish Trump and humiliate him if necessary, even sanction him for it. But strategically speaking, Smith shouldn’t take the bait and ask Trump to be jailed.

Ohio decides on Tuesday whether it still wants to be a democracy

On Tuesday, Ohioans will go to the polls, in what seem like record numbers for a special August election, to decide Issue 1: Will the requirement for passage of new constitutional amendments require a 60 percent vote going forward, as well as new and onerous ballot qualification steps that include collecting signatures from every county?

Tuesday’s ballot measure holds incredible significance for an upcoming measure, which would also amend the constitution, now qualified for the November ballot. That measure would enshrine into the constitution the right to abortion up until the point of fetal viability, at around 22-24 weeks. Without it, a six-week abortion ban passed by the Ohio GOP could kick in. That law is currently on hold due to a ruling from a court, but that injunction is being appealed.

Issue 1 supporters hope to make it 10 percent harder for the abortion constitutional amendment to pass. And of course, support for the measure stands at a solid 58 percent based on recent polling—a solid majority, but not quite enough to pass.

I am writing a longer piece on Ohio for our sister substack publication, one that I now write for once a week, called The Big Picture. The piece addresses the quest by the Republican Party in Ohio to suppress democracy through gerrymandering and ballot measures like Issue 1. I encourage you to sign up to receive that substack as well. It makes for a great complement to this one because it tackles the major issues of our day from a “big picture” 30,000 foot standpoint. You can sign-up here.

Supremes in the spotlight

I was encouraged to see that Justice Elena Kagan has come out forcefully against the position of Justice Samuel Alito, who has claimed, incorrectly and self-servingly, that the Constitution grants no power of Congress to regulate the Supreme Court. Justice Kagan did so in a collegial manner, even while pushing back firmly by citing several ways that Congress does in fact regulate the court, including through its budget and the number of justices.

Meanwhile, Justice Clarence Thomas is under scrutiny, again, for (checks notes) how he managed to buy his cherished RV. This is the vehicle Justice Thomas likes to drive around and park in Wal-Mart parking lots across the country, as to if to demonstrate his folksy nature.

It turns out that, per reporting by the New York Times, a rich benefactor friend who made his fortune in the health care industry actually personally financed the vehicle for Thomas, at least in part. It’s worth over a quarter million dollars. That’s a big loan for someone to underwrite, and something a bank unlikely would do on its own because of Thomas’s existing debt load. Thomas naturally didn’t declare the loan, and it’s unclear how it was ultimately “satisfied.” Was the loan forgiven? Because that would be a taxable event. And it appears nowhere in his tax filings.

Fake electors aren’t sleeping well these days

After the Michigan AG announced criminal charges against that state’s fake GOP electors, and Fulton County District Attorney Fani Willis made clear that she had immunity deals with eight of that state’s fake electors as part of her larger election interference case (leaving others potentially charged), it made sense to start to ask, “What about the other swing states?”

At least in Wisconsin, there is now some indication of movement. Gov. Tony Evers made it clear last Friday that he wants to see his state’s fake electors charged. And with the allegations of illegal conduct in Wisconsin now made public as part of the federal indictment against Trump, Wisconsin Attorney General Josh Kaul said his office is tracking the federal investigation, but he has not confirmed whether the state is investigating the fake elector scheme itself.

Similarly, in Arizona, State Attorney General Kris Mayes has ratcheted up her office’s inquiry into that state’s group of fake electors, requesting records from those involved.

We may see more criminal charges start to roll out later this year from these swing state AGs, even as Jack Smith continues his investigation into the conspiracies to overturn the 2020 election.

Georgia charges?

Fani Willis has stated that her office is ready to go forward with the grand jury, and the fire department has begun filling security barriers with water in order to prepare for the news. I expect that we won’t see much by way of MAGA demonstrations, this being the fourth occasion for protest where the prior three saw little to no disturbances. It’s not clear if the charges will come out this week, next week, or the following.

In some ways, the Georgia charges may prove more dangerous to Trump than even the federal ones. This is because even if Trump wins the general election (heavens forbid), he cannot use his power to stop the state of Georgia from prosecuting him, and he cannot pardon himself or others because these are state charges. Importantly, neither can any other possible Republican president. And clemency in Georgia is not granted by the governor, either, but by a state clemency board.

My best guess is that Trump will face the Georgia state charges having already been convicted of other state and federal charges, because that the trial won’t be until sometime well after the election based on the existing pile-up on the calendar. Still, it will be welcome additional insurance against Trump, and it will send a strong signal of deterrence to anyone ever hoping to commit election fraud and interference at the state level.

That’s it for today. Have a terrific Sunday, and I’ll see you back on here tomorrow.

Jay