Fun With Criminal Procedure, A Bit About Liz Cheney’s Book (and more)

First, some business. I appeared this week on the Politics Girl Podcast, which you can see here or, if you prefer to read a (rough) transcript, it’s here. Also, my website got a beauty makeover. I now have a separate landing page and other fancy stuff. (My technical support staff—my husband—has been busy.)

And now for fun with criminal procedure.

Trump’s Absolute Immunity from Criminal Prosecution Appeal

Interesting things have been happening this week with Trump’s absolute immunity appeal.

Last week, I wrote about Trump’s far-fetched and creative argument for why he has absolute immunity from criminal liability for any actions taken while president.

Short explanation: He doesn’t have absolute immunity from criminal liability because there is no such thing. He made it up and it’s nonsense. His argument (which you can read here) based on reading of the impeachment clause, is that if a sitting president isn’t impeached and removed, he cannot later be indicted.

Remember, with claims of immunity, special rules apply: Under Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), an order denying immunity is a final, appealable order, which means Trump can bring an interlocutory appeal now. Most appeals have to wait until after the trial.

Here is the other hitch: If Trump brings a nonfrivolous claim of immunity, the lower court has no jurisdiction to bring him to trial. Therefore, once a non-frivolous claim is raised, the trial court loses jurisdiction to proceed with the trial until the matter is resolved.

Trump’s claim that he has absolute immunity from criminal prosecution is nonsense but not legally frivolous because it is a first impression and Trump’s argument is based on a reading of the Constitution. (A twisted reading, but a reading nonetheless.)

We know that Trump filed this appeal in the hopes that an interlocutory appeal would derail the January 6 trial until after the election. How do we know this? Because major newspapers (that should have known better) reported Trump’s hopes as if what he hopes is news.

This is from The New York Times:

Mr. Trump’s legal team is hoping that a protracted appeal of the immunity issue, potentially to the Supreme Court, could result in the trial being pushed off until after the 2024 election is decided. Barring that, his lawyers hope to postpone the trial at least until after the Republican Party holds its nominating convention in Milwaukee in July.

This is from The Washington Post:

Supreme Court accepts Jan. 6 case that could affect or delay Trump trial
Former president would like to push back election obstruction trial in D.C. as he seeks another term in White House

Then we had lots of pundits rushing forward to tell us that Trump might get his delay. This is also from The Washington Post:

Trump’s galling immunity stunt is doomed. But it may delay his trial.

Notice the headlines are not announcing that “Trump and his lawyers hope the Court will find that he has absolute immunity from criminal prosecution.” They’re saying “They hope this will delay the trial.” In other words, they don’t really think he has absolute immunity, but they think, given that this is an interlocutory appeal and raises immunity issues, they can push the trial until after the election. He’s hoping to win the presidency and take steps to quash the trial by staffing the DOJ with prosecutors who will comply with his wishes.

Well, Teri? Will it delay his trial?

Let’s take a look at what happened this week, then the answer should be obvious.

After Trump filed his appeal, instead of going the usual route (which would be ask the appellate court to hurry, and then after getting a decision from the appellate court, asking Supreme Court to hurry) the DOJ instead filed a Writ of Certiorari Before Judgment with the Supreme Court, asking the Supreme Court to consider a writ of certiorari before the appellate court renders the judgment.

A Writ of Certiorari is what you file with the Supreme Court when you ask the Supreme Court to hear your case.

A Writ of Certiorari Before Judgment is when you ask the Supreme Court to hear your case before the appellate court hears it.

Usually the progression is Trial Court ➡️ Appellate Court ➡️ Supreme Court. The DOJ wants to do this: Trial Court ➡️ Supreme Court.

To take a famous example of a Writ of Certiorari Before Trial, the Supreme Court granted a writ of certioriari before judgement in Nixon v. U.S. because (1) the matter was of national importance and (2) the matter needed to be decided quickly. Writs of Certiorari Before Judgment are supposed to be rare but they are becoming more common. 

Also on Monday, the DOJ filed a second motion with the Supreme Court: a request that the DOJ’s Writ of Certiorari Before Judgment be expedited.

Then, to hedge its bets in case the Supreme Court denied a writ of Certiorari before judgment and the matter goes next to the appellate court, the DOJ also asked the D.C. Appellate court to expedite the appeal.

Thus, on Monday, the DOJ filed 3 motions, two in the Supreme Court and one in the U.S Court of Appeals for the D.C. Circuit.

Getting a Supreme Court ruling up front would not only mean avoiding delays in the DC /  January 6 criminal trial, it would also mean that the issue is settled nationwide, so Trump won’t get to try his delay tactics in Florida or Georgia. (Yes, Georgia is a state case, but a Constitutional issue is a federal issue).

Here is what happened after the DOJ filed its 3 motions: Within hours (hours!) the Supreme Court responded and granted Smith’s application for his request to be expedited. Specifically, the Court said this:

Petitioner’s motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondent is directed to file a response to the petition on or before 4 p.m. (EST) on Wednesday, December 20, 2023

The same day, also on December 11, the Court of Appeals set a schedule for briefing on whether to expedite the appeal.  They gave Trump 2 days to respond. (2 days!)

On December 13, two days later, the Court of Appeals granted an expedited schedule in case the Supreme Court kicks the matter back to them. Moreover, this is the same Court of Appeals that recently said this when denying Trump’s attempt to delay the trial:

Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process.

See why I said that the answer to the question, “Will the courts allow Trump get the lengthy delays he wants?” answers itself once we look at what has been happening. The Supreme Court and the Court of Appeals are moving lightening fast. It seems to me that the Supreme Court and the Court of Appeals are sending Trump the same message: Sorry buddy. We are not going to help you with your delays.

But Teri! Judge Chutkan put the proceedings on hold!

Correct, because she is supposed to. The law says that until a nonfrivolous claim of immunity is resolved, the court lacks jurisdiction. So, on December 13, Judge Chutkan (the judge in the trial court) granted in part Trump’s motion to put the trial proceedings on hold. She paused the matters but ruled that all protective and other orders remain in place and what is happening is mere abeyance.

What if the Supreme Court grants Trump absolute immunity from criminal prosecution?

Before we pause to consider how absurd this would be, recall that, since November 3, 2020, the Supreme Court has consistently ruled against Trump. They ruled against him in his election fraud cases. They had the chance then to create delays past January 6 or help keep him in office, but they refused. They rejected his claims of executive privilege each time he raised that claim. The executive privilege claims he tried in the past are a watered-down version of what he is now claiming: Absolute immunity from criminal prosecution.

There is no reason to believe, from what the Supreme Court and appellate courts have done since November 2020 that they would help him derail these criminal proceedings.

Okay, so, what if the Supreme Court held that the Constitution gives Trump, as a former president, absolute immunity from criminal liability for anything he did while in office? That would mean that any sitting president can commit any crime, and, as long as either the House refuses to impeach or the Senate refuses to remove, the president would be untouchable.

Consider the possibilities. A president + 34 Senators could enter a crime pact: The Senators agree to vote against removing the President from office, and the President, in turn, promises to pardon them for any crimes. Then, they could do almost anything without fear of prosecution. The next time a president tried to overturn an election and stay in power, the plan would succeed because the president and his partisan Congress members could freely break laws.

“Absolute immunity from criminal liability” is nonsense in a rule of law government. What makes it particularly absurd in this case is that Trump has been indicted by a grand jury for trying to overturn an election, and he is running again to be president. He wants to avoid prosecution for trying to overturn an election and he wants to get back into the White House.

As an aside, the reason the drafters of the Bill of Rights guaranteed the right to indictment by grand jury is to put prosecution into the hands of ordinary people. A grand jury indicted Trump. The Supreme Court is not going to announce to the country that grand juries are powerless to indict a former president.

This is why the media is reporting that Team Trump hopes the procedural requirements will derail the proceedings and they’re not reporting that Trump hopes he will be granted absolute immunity from criminal prosecution.

The Other Important Appeal

And, another Washington Post headline:

Former president would like to push back election obstruction trial in D.C. as he seeks another term in White House

Here’s what that is about.

Lots of the January 6 defendants were convicted under 18 U.S.C. §1512(c) and two of Trump’s criminal charges in the D.C./ January 6 case were brought under 18 U.S.C. §1512(c).

18 U.S.C. §1512(c) makes it a crime to corruptly obstruct, influence, or impede any official proceeding or attempt to do so. To get a conviction (and when deciding whether to bring charges) prosecutors look to see if there is evidence beyond a reasonable doubt to support each element of a crime. Here are the elements of 1512(c):

1. Whoever corruptly
2. obstructs, influences, or impedes
3. any official proceeding or attempts to do so . . .

This seems straightforward enough, right? The people who stormed the Capitol did so because they wanted to disrupt the workings of Congress (and, in fact, did disrupt the workings of Congress) and corruptly obstructed the Congressional proceedings.

The defense, however, came up with a creative argument based on the reasons the statute was enacted.

The defense argument is that 18 U.S.C. §1512(c) was enacted in 2002 after Enron’s accounting firm, Arthur Andersen, launched what prosecutors called a “wholesale destruction” of documents. Later, the Arthur Anderson accountants defended the shredding of documents on the grounds that under the law as it then stood, destroying evidence was illegal only if an official proceeding was pending.

Thus the defense lawyers are arguing that “obstructing an official proceeding” doesn’t apply to something like the counting of votes in Congress.

The defendants have been losing on this argument. Appellate Courts have been saying, “nice try” and finding that the Congressional vote is an “official proceeding.”

Now the Supreme Court agreed to hear the case.

Will the defense win?

If the defendants win it will be because criminal laws should be narrowly rather than broadly construed. If the defendants lose it will be because there is nothing in the plain language of the statute to indicate that the proceeding has to be one in which evidence is presented.

If I had to guess, I’d say the defendant loses because come on. Surely trying to disrupt an official proceeding of Congress = trying to disrupt an “official proceeding.”

If the defense wins, what happens?

Expert Witness #1 understands how to track visual representation of geographic location data on a phone. Specifically, “Expert 1 plotted the location history data for Google accounts and devices associated with individuals who moved, on January 6, 2021, from an area at or near the Ellipse to an area encompassing the United States Capitol building.” Also, “His/her testimony will describe and explain the resulting graphical representations of that data, and it will aid the jury in understanding the movements of individuals toward the Capitol area during and after the defendant’s speech at the Ellipse.”

Expert Witness #2 will testify to the same thing as Expert Witness #1 (I guess on the theory that 2 expert witnesses are more believable than 1)

Do I have this right: The phone Trump used was in communication with people moving around the Capitol on January 6? Or something like that? In other words, does the prosecution have electronic evidence directly tying the Trump White House to the people on the ground on January 6? If so = 🔥.

Expert Witness #3 knows how to analyze “cellular phone data, including the use of Twitter and other applications on cell phones.” Here’s what Witness #3 can testify to:

This seems to have something to do with information gleaned about what was going on during the post-election period, including on and around January 6.

This is what is called, “Getting all the evidence before filing an indictment.” This is also the part in the plot where the defense lawyers say, Uh oh, now what do we do?

Liz Cheney’s Book

I started reading Cheney’s book, Oath and Honor: A Memoir and a Warning. I’m just a few chapters in, so I don’t have much to report yet, other than to say it is clear that she wrote this book to make sure Trump isn’t reelected and to shame the Republicans who are supporting him.

What makes it fun are the details she offers as she seeks to shame the Trump-supporting Republicans.

You may not like her politics (I don’t, either)—but it’s important to keep in mind what Cheney is doing and why.

The explanation lies in Harvard Professors Ziblatt and Levitsky’s book, How Democracies Die. In the old days, autocrats generally came to power through military coups. Modern autocrats are more likely elected through legal means and then, once in power, set to work demolishing democratic institutions. If you’ve been following any of Trump’s recent public statements, you know he is campaigning on a promise to dismantle American democracy. In 2016 he knew nothing about government. It took him a few years to learn how to abuse the power of the presidency. He was just getting warmed up in 2020, when he lost the election and was forced to leave the White House.

Now he knows how to do it. So the important thing is to keep him out of office.

Ziblatt and Levitsky explain that when a would-be autocrat is trying to get elected, the most efficient way to keep him out of power is for members of his own party to cross party lines and vote against him. The authors give an example of this happening: In 2017, defeated French conservative candidate Fillon called on his partisans to vote for center-left candidate Macron to keep nutcase Le Pen out of power.

The idea is not that the Republicans crossing over to vote against Trump give up conservatism and become Democrats. The idea is that they switch over and accept short-term political sacrifice for the good of the nation. This requires short-term sacrifice.

The way she has been speaking out against Trump since November 2020 is precisely what Ziblatt and Levitsky said partisans need to do to save the country when one of their own presents a unique danger. She has no intention of giving up her conservatism or her belief that Biden’s policies are bad for Wyoming. But she is willing to make a short-term sacrifice to keep Trump, who she recognizes as uniquely dangerous, out of office.

How Democracies Die was widely read on the Capitol. Biden read it. I’d bet Liz Cheney read it. So go ahead. Be angry at the Cheneys for their politics–but recognize that she is willing to endorse her ideological rival—and anger her own base and colleagues—to keep Trump from returning to power. She is also calling out the Republicans who continue to kiss Trump’s ring as moral cowards.