If you’re having trouble keeping track of the details in all the criminal prosecutions of Donald J. Trump, you are not alone. Now that we are in the stage of pre-trial motions, we may need scorecards or bingo cards. Fortunately, criminal procedure is utterly fascinating. 🤓
First, a quick review of this week’s happenings in the Georgia and DOJ January 6 cases:
- This week Judge Chutkan may set a date for the DOJ January 6 case. Recall that the DOJ proposed a January 2, 2024 trial date and Trump submitted a laughably absurd request for a trial in April of 2026.
- Kenneth Chesboro, one of Trump’s lawyers and co-defendant in the Georgia matter, demanded a speedy trial, which he has a right to do under both Georgia law and the US Constitution. His trial is scheduled to begin on October 23, 2023. (It is unlikely the trial will actually begin then.)
- Georgia DA Fani Willis responded by asking that all the defendants be tried on October 23, 2023. (It is extraordinarily unlikely that this will happen.)
- Several of the Georgia defendants filed laughably weak motions to have their cases dismissed, or the proceedings stayed, or seeking “emergency relief.” The court quickly denied all of these motions.
- Several of the defendants also filed motions in federal court to have their cases removed under section 28 U.S. code § 1442, the “federal officer removal” doctrine.
- And yes, Trump had to pose for a mug shot at the Fulton County Jail.
- Trump is apparently not funding the defense of any of his Georgia co-defendants.
He is, however, funding the defense for his co-conspirators in the stolen document cases, which is creating conflicts of interest for the lawyer. Why isn’t he funding all of his co-defendants, given that would be a good way to keep a tight rein on what they say? I don’t know, but he is acting like a guy strapped for cash: He asked a bond company to put up the money for his bail bond in Georgia and when Giuliani pressured him for help paying his legal bills, he will host a fundraiser to get other people to fund Rudy Guiliani’s legal bills.
Finger Pointers and True Believers
It appears from the court filings this week in the Georgia criminal prosecution that the defendants are sorted into two groups: Those we might call the Finger Pointers and those we might call the True Believers. As you might expect, the finger pointers are pointing their fingers at the true believers.
Finger Pointers
In making the argument that their cases belong in federal court under 28 U.S. Code § 1442, two of the defendants, Shawn Still and David Schafer, argued that they met the statutory requirements because they were acting at the direction of then-President Trump. The argument is unlikely to work because they were not federal officers themselves, but it does lead me to believe that they may raise what is called the Public Authority Defense. (Most of what I am about to tell you comes from this piece I co-authored for The Washington Post.)
Before we get started, a reminder: Just because a defendant has a defense, that does not necessarily mean the defense will succeed. Sometimes, though, a good defense, while not getting the defendant off the hook entirely, can mitigate their liability and lessen their punishment.
Here’s how the Public Authority Defense works. Suppose the chief of police in a town said you could ignore a “no parking” sign and park in an otherwise forbidden place. Suppose also that you relied on his word and parked in that place. Then suppose a police officer later handed you a parking ticket.
You’d have a defense. Specifically, you could point at the authority figure who invited you to commit the illegal act. The spotlight then turns to the authority figure: Did the chief of police have the power to waive the parking restriction? If not, was it reasonable for you to believe that he did? Did you have reason to know that you shouldn’t park there, even if he said you could?
In other words, you can’t just say, “The police officer said I could.” It has to be reasonable for you to believe the police officer who told you the act was legal. (This distinguishes the defense from the Nuremberg Defense.)
In the defining case, United States v. Tallmadge, a federally licensed gun dealer told the defendant that his circumstances fit into an exception to the prohibition against felons owning firearms. The defendant relied on the dealer’s word and purchased the firearm. The court found that licensed firearm dealers are federal agents for gathering and dispensing information about the purchase of firearms. The court therefore found that it was reasonable for the defendant to rely on the dealer’s word. The defendant was thus found not guilty.
To take another example, in 2007, 12 residents of Sacramento and Fresno, Calif., were accused of plotting to overthrow the communist government of Laos. The U.S. attorney’s office dropped the charges because my former mentor and co-author Mark Reichel, representing the defendants, pointed to evidence that they were lured into the conspiracy by an undercover federal agent posing as a CIA officer. The defendants reasonably believed they were acting at the urging of the American government and therefore weren’t guilty of entering a criminal conspiracy.
Don’t be fooled by these examples: The defense fails more often than it succeeds. It seems to me, though, that this is the best defense available to some of the defendants.
One of the indicted electors, Shawn Sills, described himself this way in his motion to remove:
He then tells us that a lawyer representing Trump told him (and the other electors) this:
In other words, Still claims that the lawyers assured him that acting as electors was legal. Another of the indicted electors, David Shafer tells the same story: Trump’s lawyers assured him that what they were doing was legal. Keep in mind that this isn’t a “relying on advice of counsel” defense because they didn’t hire these lawyers. These were lawyers representing the United States President. These lawyers are also named as defendants.
See why this gets interesting?
Someone on Mastodon said that if Still and Shafer try to use this as an actual defense:
“Trump will just say that his lawyers were acting on their own.”
If that happens, either Trump has to take the stand (unlikely) or the lawyer would have to go along and take the fall and the punishment to save Trump. Even if the lawyers do try to take the fall for Trump, what matters is what the jury believes. Juries decide which testimony is credible and there is plenty of evidence that the lawyers were not acting alone.
True Believers
What struck me while I was reading Jeffrey Clark’s motion to remove was his fury. (Clark was a DOJ official during the Trump administration, is an unindicted co-conspirator in the DOJ J6 matter, and is under indictment in Georgia as well.)
Clark isn’t pointing fingers at anyone. He is enraged that he is being indicted for what he and the others did in Georgia. Here is a sampling from his motion (with my highlights for emphasis):
Here he compares Fani Willis’s case with Moscow show trials:
And this:
It is not a good-faith prosecution; it is instead a political “hit job”
The brief goes on like that. The level of arrogance here is stunning. Clark clearly believes that any sensible person will agree that Fani Willis is conducting a political hit job. “I did it and it was perfectly legal” might work with the Republican primary voters, but it will not work in a court of law (and most Americans are not going to buy it.)
From the DOJ indictment, we learn that Jeffrey Clark was totally cool with Trump using federal troops to keep himself in power:
John Eastman (former Chapman law professor, defendant in the Georgia matter, and unindicted co-conspirator in the DOJ J6 indictment) is also a true believer. His position is that he was simply offering legal advice to the president and had every right to question “irregularities” in the Georgia election.
Eastman, too, was rather glib about the possibility of violence. This is from the DOJ Indictment. John Eastman is Co-Conspirator 2:
The indictment doesn’t reveal how he responded but here is his “Statement upon Self-Surrender in Fulton County,”
I am here today to surrender to an indictment that should never have been brought. It represents a crossing of the Rubicon for our country, implicating the fundamental First Amendment right to petition the government for redress of grievances. As troubling, it targets attorneys for their zealous advocacy on behalf of their clients, something attorneys are ethically bound to provide and which was attempted here by “formally challeng[ing] the results of the election through lawful and appropriate means.” – An opportunity never afforded them in the Fulton County Superior Court.
Each Defendant in this indictment, no less than any other American citizen, is entitled to rely upon the advice of counsel and the benefit of past legal precedent in challenging what former Vice President Pence described as, “serious allegations of voting irregularities and numerous instances of officials setting aside state election law” in the 2020 election. The attempt to criminalize our rights to such redress with this indictment will have – and is already having – profound consequences for our system of justice.
“Crossing the Rubicon” of course refers to the river Julius Caesar crossed with his army, thereby starting a civil war in Rome. John Eastman, a former law professor, could not have been unaware that he used a ‘starting a civil war’ metaphor.
Along those lines, in a recent interview, Eastman expressed the view that our country is being “destroyed”:
This is an existential threat to the very survivability, not just of our nation, but of the example that our nation, properly understood, provides to the world. That’s the stakes. And Trump seems to understand that in a way that a lot of establishment Republican establishment types in Washington don’t. And it’s the reason he gets so much support in the hinterland, in the flyover country. People are fed up with [being told to just go along] while the country is being destroyed.
This echoes Trump’s oft-repeated refrain that the country is being destroyed by radical left Democrats. Eastman then talks as if the election actually was stolen from Trump:
Prominent Republicans echo the idea that drastic measures (violence) may be necessary to save the country.
Matt Gaetz stood next to Trump not long after Trump was indicted by the DOJ for attempting to overturn the election and said, “Only through force do we make change in a corrupt town like Washington, D.C.” (By “corrupt” he meant diverse and Democratic.)
Sarah Palin appeared on Newsmax and, in response to Trump’s arrest, said she is “concerned for our country.” She said she wants to ask the people creating a “two-tiered system of justice” whether they “want us to have a civil war because that is what is going to happen. We’re not going to keep putting up with this . . . we need to get angry. We need to rise up and take our country back.”
Andy Biggs (Arizona Congressman). Less than 24 hours after Trump was indicted in the stolen documents case, Biggs said, “We have now reached a war phase. An eye for an eye.“
Kari Lake, who ran unsuccessfully for governor of Arizona, said, “I have a message for Merrick Garland and Jack Smith and Joe Biden . . . most of us are card-carrying members of the NRA.”
There are others who feel this way, of course.
Instead of attending the Republican presidential debate, Trump released a pretaped interview with Tucker Carlson. When Carlson asked Trump, “Do you think we’re moving toward civil war?” Trump paused for a moment and then said: “There’s tremendous passion, and there’s tremendous love. Jan. 6 was a very interesting day because they didn’t report it properly.”
This was how he described the January 6 attack: “. . . people in that crowd said it was the most beautiful day they had ever experienced. There was love and unity. I’ve never seen such spirit and such passion and such love, and I’ve also never seen, simultaneously and from the same people, such hatred of what they’ve done to our country.”
Of course, Trump is doing what he always does: inventing his own version of reality and expecting people to go along. As Timothy Snyder said, he writes the script and forces everyone to become actors in his reality play.
The historical context for these calls to violence
For historical context, we can go all the way back to Thomas Jefferson, who in my view, gets way too much credit. Jefferson said this:
Jefferson also wanted the federal government to remain small and powerless, and we know why: He worried that if the federal government grew too strong, it would outlaw slavery.
The Civil War
It isn’t a coincidence that the insurrectionists who attacked the Capitol on January 6 carried the Confederate flag.
Modern Militias
The modern militia movement was born in the early 1990s as a response to Clinton’s gun control laws and the fatal shootouts at Ruby Ridge, Idaho, and Waco, Texas. Like the confederates, modern militias are anti-federal government and embrace ideas of white supremacy. They are constantly preparing for civil war and believe violence against a “tyrannical” federal government is justified.
When Trump called for a “peaceful rally” the day he surrendered at the Fulton County jail, people worried he was calling for another armed attack.
It turned out that the crowd that showed up was pitifully small.
Trump may be losing his juice, but the problem isn’t going away. As Jenna Ellis said in her plea for money from Trump, the “principle” is bigger than one man. All of these extremists are banking on Trump or a different MAGA candidate winning the White House and continuing what Trump started during his first term. What can you do? See my list.
That feeling after reading and thinking about a dozen pretrial motions:
Once again Teri Kanefield nails it. As just one example, Jeffrey Clark’s “rage” and “arrogance.” This man petitioned DJT for a job and promised results.
Poor J. J. Clark *and* Eastman… Either screed alone would floor any thinking dog.
It looks like JJ celebrated National Dog Day with so much enthusiasm that it exhausted him.
Eastman has a California disbarment hearing going on. I saw some reports that he waived his rights & already testified at those hearings. He subsequently attempted to stall those hearings when he saw his legal exposure increase elsewhere. The disbarment judge ruled against further delays.
It seems whatever testimony he already gave re: disbarment could be used against him & it would seem that actual disbarment could be as well if he is saying his actions were righteous & part of his legal practice.
If you follow that issue at all, I would be interested in your comments. Thank you.
I haven’t been following it closely, but I did gather that he showed absolutely no remorse, which informed some of my thinking about him and Clark as true believers. I first wrote about Eastman in 2021 for the Washington Post, and at that time, it was not clear that he was as involved as he was.
If I may – Eastman’s Claremont Institute is AS WE WRITE using its 501c3 to provide disinformation to Idaho legislature and rural Oregon counties for a terrible rights grab called Greater Idaho which is a cover for allowing GOP to use taxpayer money and time for GOP political use. The GI group in our county set out dogwhistles for violence (same one that brought out 4 crazies with guns to the George Floyd vigil by 70-80 y/os) threatening a picnic of people who disagreed with them. (I got my car marked, other people were stalked). They also participated in an effort to suppress ballot curing, made false reports to the Sec State, and held an angry “counter protest” (to no one there) very close to an active 24/7 ballot drop box. The county ballots are very coordinated, all include criminalizing speech suppression components, and are a huge rights grab. Just look at current Idaho law suppressing college age voting, health care, education, and more (including a current law in progress to criminalize covid shots as the new variant emerges.).
We actually do need help getting investigation into Claremont Institute, which is also providing disinfo for the Redoubt effort in the Rockies with the idea of getting all the Alt Right types together and oppressing women, LGBTQIA folk, voters, and workers.
Ms. Kanfield, I hope you know how much your cool and clear comments are appreciated. Reading them makes me feel like I have a really intelligent friend explaining things to me. Thanks.
JJ looks comfy.
As for the hostility, Clark’s rant seemed a lot like Clarence Thomas’ during his confirmation hearing when challenged. That seems to be the GOP way. Make baseless accusations in the face of potential accountability.
What kind of help would be effective?
I’ve been trying to find information on an Idaho law criminalizing COVID vaccinations. What I’m seeing is a bill that was introduced in your state legislature in February to criminalize giving mRNA vaccines, but nothing about that bill progressing. It does not appear that this crazy bill has become law or is in the process of doing so. Is that correct?
What does appear to have become law is a bill to ban businesses from requiring vaccinations.
It’s “Chesebro,” not “Chesboro,” pronounced chez-bro, not cheeze-burrow.
I feel like JJ.
Can we go for a long walk on the beach now?
Thank you Teri.
So grateful for your clear and insightful coverage and explanations of these issues. It seems to me that Governors like Abbott and DeSantis are regularly, systematically, and by fiat taking actions that defy and/or undermine current laws, especially federal laws around immigration. As these “Laboratories of Autocracy” mount and model such defiance, I am wondering whether you have been following these developments and whether/how they are or might be countered or managed?
The sheer arrogance!
I have been looking forward to this installment – with four upcoming trials to keep track of, you’re my go to for “how it’s going” and explanations. I’m very grateful, thank you.
Thanks again for your comments. I have read all the indictments but I don’t think I’ll be able to keep up with all the motions and responses, especially those with ludicrous rantings that are obviously intended for sound bite purposes. I’m hoping that you are able to keep up continue your excellent analysis I look forward to with my Sunday coffee.
I feel like the adults in the room are starting to get tired of the charades, like the Federalist Society public statements and others bringing suits to disqualify TFG from office. But it’s sure going to be a rocky ride for the next 15 months or so.
I really appreciate your explanations on the various defense doctrines, most of I’ve never heard of. (I have been lucky to stay out of the system so far, but if I ever find myself in that kind of a bind I will beg for your recommendations.)
Keep up the good fight and vote for democracy!
Thank you. I follow Tom Dreisbach of NPR on Twitter who been covering it. Some of the reporting implied Eastman screwed up by testifying in that venue.
A useful dichotomy: Finger pointers and True Believers. I’m fascinated by the latter, how their minds and moral compasses could be so screwed up. How do they get this way?
Add Jenna Ellis to the list. From her wikipedia page, and from her subsequent behavior, it seems like she recanted the confession she made to the Colorado board that censured her for lying, and which had the power to revoke her law license. She has her own YouTube channel, “The Jenna Ellis Show”, monetizing her smiling mug shot, and, as Hunter Thompson phrased it, her “Jesus-based rage”. She wrote a book that argues the bible is the only way to properly interpret the Constitution. Not surprising, she’s a product of presumably Christian home schooling, and went to Christian colleges. She’s in a position to be the voice for millions of evangelical reactionaries, and is at least as dangerous as Marjorie Taylor Greene.
What’s interesting about Ellis is that in the ‘teens, she was outspoken in her criticism of Trump, based on his violations of Christian morality. She changed her mind at some point.
The self-righteousness of these people, especially Clark, is staggering.
It still amazes me why anyone would tie themselves to anything “Trump”. He has for at least forty years swindled, backstabbed, and screwed people every which way possible. They either end up bankrupt, incarcerated or both. I don’t get it. Is national recognition that important?
SMH.
Still has one viable option (in my unhumble opinion): become a canary.
If he genuinely believed he was acting lawfully at the time and he reveals everything he knows about the operation of the scheme, the consequences should be very light. (Other than, as a participant in a coup plot, needing to be banned from public office.)
> One of the indicted electors, Shawn Sills, described himself this way in his motion to remove:
> Shawn Still—serving since January 2023
“Still” or “Sills”? Please correct my last post if it’s “Sills” 🙂
Does anyone know if Trump even retained Chesebro, Powell and Eastman? Were they personal or White House attorneys’? I have no idea how to discover if they were retained and providing legal advice to Trump or if it “free” advice. To my knowledge, none have stated they were retained by Trump. I know Chesebro endorsed a fake elector strategy in Wisconsin and previously he worked with Eastman on a legal brief on birthright citizenship. , Scott Perry (R-PA) introduced Clark to Trump, and there is no way he can say he did this as an employee of the DOJ, knowing he was not representing the DOJ in his brazen attempt to becoming AG to file false statements to Georgia authorities, but I’m curious how they found their way into the Trump inter circle and if being retained supports Trump’s babble that he was following legal advise, if not retained does it show he was following advice from sycophant‘s telling him things that he wanted to hear, and whose exposed? .
Thank you Teri (& of course JJ 🙂
Is ignorance of the law a « valid » defense in US law? In Quebec law( Civil law ) ignorance of the law is not an admissible defense. Especially for someone such as an « elector » or State Governor who should have advisors, not only TFG’s goons, to orient their actions?
Maybe it’s a topic for another time/ day/ century, but it just feels trite that a state governor would invoke ignorance as a defense – or does that need to be proven in court as well?
thanks,
Nathalie
The answer is “it depends.” Whether ignorance of the law is an excuse depends on the level of mens rea for the crime (I explained mens rea a few weeks ago. You can find it with the search function)
I’m sure these are arguments that Fani Willis will use to rebut their defenses (if in fact they try this defense).
A link to the list of helpful actions that Teri has curated can be found just above the photo of J.J.
The way some of them are reacting – the outrage – is definitely fueled by narcissistic injury. Such people have great capacity for distortion.
Thank you for sorting through the legal weeds for us once again, Teri. Your posts are indispensable reading.
Of course Eastman believes the election actually was stolen from Trump. After all, he’s the guy who wrote that bit of sophistry for Newsweek in August 2020 that claimed Kamala Harris was ineligible to be vice-president because her parents were immigrants. In his view, the only legitimate voters are Republican voters.
Thank you Teri!!
A question for JJ…do you sometimes get tired of mom sitting all day at the computer? My late girl Randee used to come into my office and use her snout to try & loosen my hands from the keyboard. I knew then it was time to take a break & play chase in the back yard. It can really work. If you have suggestions for other pups please ask mom to post for you!
I have been watching the live stream of the Eastman bar hearing in California. Afaik, he has not testified, but plans to do so. The hearing began earlier this summer and then took a break, starting up again this past week after a short delay so he could go get booked in Georgia. An expert witness for the bar was on most of Thursday and Friday, Dr. Matthew Seligman. He’s an expert in US elections and was incredible to listen to as he explained why so many of Eastman’s assertions were incorrect…mainly because he incorrectly reported actual, documented historical events.
I am looking forward to Eastman testifying. The bar attorneys appear very organized and methodical, while Eastman’s representative is working hard to do things like disqualify experts (e.g., Prof Seligman) and avoid defending what Eastman actually wrote. Check out @meghanncuniff Monday for a link to the schedule and zoom address for the hearing. It’s fascinating.
Under his release conditions in the Georgia case, Trump has to promise he will have no contact with the co-conspirators. Wouldn’t that preclude him from being at the fundraiser he’s doing for Rudy (assuming they will both be attending the fundraiser)?
Teri, my sister says there will be no trials for Trump because his defense counsel can appeal all pre-trial motions, all the way to the SC. Is this so?
Like that – narcissistic injury. Definitely caputres them.
Well said, “laboratories of autocracy”.
No. He’d have to get a stay of the proceedings and he won’t get that.
one of the first things i was taught in law school was ignorance of the law is no excuse. but if the crime requires intent, you could argue you had no intent to violate the law bc you didn’t know what you were doing was illegal. but such an argument usually strains credibility if the law is common sense or well known
I have a solution. Trump on a Plane. To Russia Russia Russia. I know there is no way to cause that to happen, but I’m feeling it’s the best chance at defusing his cult. Conviction or prison will make him a martyr, but if he ran away to uncle Vladimir maybe his people would start to peel away. (Maybe Fani Willis thought of this and that’s why his bond was set so low. Maybe we could do a go fund me to pay his air fare? Money well spent.)
Eastman is a member in good standing with the Federalist Society, the organization that vets judges for GOP to put forward.
The right’s extreme loathing of America is truly stunning to behold, though we’ve been watching this unfold since Newt was in charge. I don’t know why I’m so struck by their loathing of America and their push to use violence to overturn the nation they profess to love – but I am truly surprised we are at this point. Working hard to combat it via local elections.
Or Riyadh might suit him better. But don’t “send” him, let him “escape.” That might placate his followers and save us another civil war.
Jen Rubin had a nice opinion piece on Dr Seligman’s testimony in the disbarment case in the Washington Post today.
Here is a free link.
https://wapo.st/3sqXBoZ
Nothing, but nothing, will placate Trump’s followers, unfortunately. The force of their movement can be neutralized–Juliette Kayyem, for instance, has written interesting analyses of how terrorist movements can become deflated from within, and the Southern Poverty Law Center has a history of successfully disempowering hate groups by means of successful lawsuits that cut off the groups’ funding. Some true believers may eventually turn away from the cult/movement of their own accord, but if Trump were to go into exile it would not lead the bulk of them to discard Trumpism. They’ll just wait for the “resurrection.”