The Week Ahead

Happy Sunday. I hope it’s been a restful and restorative one. And if not, well, there’s always next weekend!

I’m following four main stories in law and politics as we head into this week.

Georgia on our minds

There are reports that District Attorney Fani Willis will begin to present her case for election interference and other crimes this week to a grand jury in Fulton County, Georgia. Willis’s office reportedly has provided a 48-hour notice to two witnesses for the prosecution to appear on Tuesday—a clear sign beyond the police barricades in front of the courthouse that things are about to glow red hot in Atlanta.

The potential charges are believed to include a state RICO action (an acronym for Racketeer Influenced and Corrupt Organization). This is a complicated, time-consuming charge that almost certainly means a lengthy time to trial. But the facts and evidence might just fit the bill here. And the charges likely will sweep in some dozen defendants, including Donald Trump and Rudy Giuliani.

It isn’t clear what crimes, called “predicate acts” under the RICO laws, might be charged as part of such a sprawling racketeering charge. But a report by CNN out this morning sheds some light. Willis apparently has evidence in the form of text messages tying staff at the Trump Campaign to a top-down conspiracy to illegally breach voting machines systems in Coffee County, Georgia, as part of desperate bid to prove evidence of vote fraud in the state.

That will land like a bombshell if charged, and it underscores a central and critical distinction across the Trump election cases: You are free to make wild and unsupported claims of a stolen election, even to knowingly lie about that. But you are not free to cite those claims as a pretext for breaking the law, whether it’s breaching voting machine systems in Georgia, organizing bogus slates of electors in the swing states, or plotting an illegal coup attempt in D.C.

At the center of the Georgia case will be the efforts by the Trump Campaign to spread false election conspiracies to illegally pressure and coerce Georgia officials to undo the 2020 presidential election and to undertake other illegal means to achieve that end. These include the assembling that fake set of Georgia electors, who falsely certified under oath that they were the duly elected and true electors for the state. Several of these electors have testified before the grand jury in exchange for immunity.

Trump and his campaign’s efforts culminated in an infamous, recorded phone call, conducted on January 2, 2021 just days ahead of the attempted coup and insurrection at the Capitol on the 6th. Included on the call were Donald Trump and his cronies in D.C. and Georgia Secretary of State Brad Raffensperger and his counsel. During the call, Trump implied there would be criminal consequences for Raffensperger for not doing his job, and that all Trump wanted was to “find” 11,780 votes, one more than he needed to flip the state to him.

Protective Order and some ground rules from Judge Tanya Chutkan

On Friday, Judge Chutkan entered a protective order in the federal January 6 case in D.C., brought against Trump by Special Counsel Jack Smith. Under that order, Smith’s office turned over more than 11 million pages of documents to Trump’s team. A great deal of the material is presumably known to Trump and his campaign because it is their own campaign literature, collected and reviewed by the Justice Department. The Protective Order permits Smith’s office to designate the discovery as “sensitive” if they do not want Trump to photograph, copy, record or take notes when reviewing it. Trump isn’t permitted to disclose what he learns from such documents to anyone not bound by the Protective Order.

The hearing on the Protective Order covered a lot more ground than just the scope of the order itself. At larger issue was the extent to which Trump’s “free speech” rights clashed with the judge’s desire to administer the case efficiently. I will be writing up a more detailed analysis of that hearing and what it means for Trump and his campaign for reelection, as well as the case itself, in a separate piece at The Big Picture substack on Tuesday. You can sign up to receive that newsletter for free, or if you’d like to support our team’s efforts to provide quality, independent journalism, you can also join as a paid supporter. Sign up here: thinkbigpicture.substack.com/subscribe

Hunter Biden Special Counsel

Less than a year after formally demanding that the Justice Department appoint David Weiss, the prosecutor overseeing the Hunter Biden investigation, as Special Counsel, much of the GOP is now howling that Attorney General Merrick Garland has now done so. (This is a good example of the GOP “moving the goal posts.”)

Republicans are upset at Weiss for originally proposing a “sweetheart” plea deal that would have had the younger Biden cop to misdemeanor tax charges and be on probation for a felony gun registration charge, held in abeyance so long as he completed the terms of his probation. There would have been no jail time.

This was more or less standard Department practice, and if anything it was harsher than normal. Were Hunter Biden not the president’s son, his behavior would normally not result in criminal charges at all, given that he has repaid the tax liability and that he was a first time offender on the gun charge (he had lied on a form about his drug use at the time he sought to obtain a gun.)

But Weiss and Biden’s attorneys fumbled the plea agreement by failing to convince the court that there was a “meeting of the minds” over what it would cover, including the possibility of future charges for Hunter Biden allegedly failing to register as a foreign agent—an area unrelated to his tax and gun violations. Weiss’s office wants to continue to investigate and possibly charge him with that crime, while Hunter Biden wants it folded into the plea agreement.

Because the tax charges are now likely going to trial outside of Delaware—to California and Washington where the tax violations occurred—Weiss needed to have Special Counsel status so he could bring those cases directly rather than partner with local U.S. prosecutors there on the cases. He asked for that status last week, and Garland (probably seeing no alternative) granted it.

As the New York Times noted, on the one hand, Republicans are furious because they believe Weiss can now hide behind his new status as Special Counsel and refuse to testify over a pending matter, and the administration can close ranks behind that stance. On the other hand, the fact that a Special Counsel is now overseeing Hunter Biden gives Republicans a reason to keep insinuating that there must be much more to Hunter Biden than we know, including their unfounded allegation that his father was corrupt and in on it for the money. Thus far, after five years and even the testimony of their “star witness” Devon Archer, Republicans have produced no evidence of such a connection.

The Iowa fracases

It’s generally understood that if GOP primary challengers intend to halt the inevitability of Donald Trump as their nominee for president, they must do so at the first Republican caucus, traditionally held in Iowa in January of each presidential election year. The GOP hopefuls have been criss-crossing the state performing retail politics, which we now learned Ron DeSantis fails at miserably. He’s just a rather weird and awkward guy.

This weekend was the Iowa State Fair, which all of the GOP presidential candidates attended, including Donald Trump, whose plane flew noisily over the fair before he and an entourage, including many Florida Congressmembers as a dig on DeSantis, swooped in for a couple of hours, overshadowing the earnest handshaking, baby holding and selfie taking of the other candidates.

Trump has a commanding lead in national polling, but there are still many months to go before January, and it’s unclear what effect his continuing legal jeopardy will have. There is also the possibility, while remote, that Trump will be on trial during the Iowa Caucuses—a truly unprecedented circumstance.

Despite the folksy, Americana nature of the state fair, there was a dark undertone to part of it. During his brief appearance, Trump was introduced by Rep. Matt Gaetz, who went full fascist in his speech. Putting aside the terrible production quality of the RSBN broadcast of his remarks, his words were chilling. “Only through force do we make change in Washington,” Gaetz warned the crowd.

Trump leads the pack in Iowa, with the latest poll averages showing him with 44 percent of the vote, 27 points ahead of his nearest rival, DeSantis.

Thanks for reading, and have a great rest of your weekend!

Jay