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. Jenna Ellis, one of Trump’s co-defendant, and in fact, a person in trouble because she did Trump’s bidding, Tweeted this:
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 said he’d 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, of course, who feel this way:
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:
