On Wednesday, I appeared on the Lincoln Project show We’re Speaking. Shortly after the interview, I thought of ways I could have given much crisper answers, which annoys me to no end.
Anyway, most of the answers I gave came from recent blog posts and my FAQ page, with one exception: The first question Lisa and Maya asked me (in reference to the Trump and the DOJ criminal investigations) was about how potential defendants normally behave once they come to understand that they are in trouble. I’ll answer that one here.
LIVE NOW: Trump’s legal team is stuck between a rock and a hard (disbarment, criminal charges) place. Lawyer and legal analyst Teri Kanefield joins Maya and Lisa to discuss Trump’s not-so-great legal options. Only on We’re Speaking. https://t.co/VCJmkZHqCG
— The Lincoln Project (@ProjectLincoln) September 28, 2022
The first thing a defense lawyer does is evaluate the client’s case. How strong is the evidence against the client? Does key evidence rest on shaky ground? For example, if there is only one witness, is the witness reliable? Does the defendant have any decent defenses? Was any of the evidence acquired illegally (so that it can be suppressed and not used at trial)?
In other words, the lawyer assesses whether the defendant has any hope of winning at trial.
In civil litigation, two litigants are in a dispute, usually over money. They’re basically equal. In criminal matters, the individual is up against the government, and the government has a lot of power. It’s an unequal power balance. This is why citizens (and defendants) have rights. Our rights are our protection against governmental abuse.
Initially, clients often don’t understand this power imbalance. Some have an unrealistic sense of what they can expect at trial (or on appeal).
If the evidence against the client is solid and they have no good defenses, they often have to go through an adjustment period as they reevaluate their beliefs and come to a more realistic view of their situation. In other words, they come to accept the reality that they are in deep trouble.
At that point, they usually begin listening to legal advice.
If a client has no realistic hope of winning at trial, a good lawyer will try to “sue for peace” (to use Mark Reichel‘s phrase). This means trying to get the client out of the mess with the least harm to the client. The best time to do that is pre-indictment. The federal criminal justice system rewards people who cooperate early and do not run up the government’s expenses and waste government time.
One thing a good defense lawyer does not do is unnecessarily antagonize the prosecutor. That would be like spitting into the wind. Or pulling the mask off the old lone ranger. (If you’re my age, you know the song). Don’t mess around with the DOJ, particularly when they’ve got the evidence against you.
This brings us to Trump’s lawsuit against the DOJ in which he is unnecessarily antagonizing the very prosecutors who are investigating him.
Trump v. US timeline:
- August 8: The FBI, pursuant to a search warrant, searched Mar-a-Lago and seized boxes of government documents including documents marked classified.
- August 22: (Two weeks later) Trump brought a lawsuit in a federal district court in Florida demanding that a special master be appointed to sift through the documents seized from his residence to make sure nothing privileged was given to the DOJ. It was an absurd lawsuit the district judge (Cannon) should have tossed it out immediately.
- September 5: Judge Cannon granted Trump’s motion and appointed a special master (Raymond Dearie) and ordered the FBI to cease using the seized documents as part of its criminal investigation until a special master could review the documents.
- September 8: The DOJ filed a notice of appeal with the 11th Circuit Court of Appeals.
- September 16: The DOJ then filed a motion with the appellate court asking that the 100 documents marked classified be excluded while the appeal pended (so that they could continue the investigation into those documents).
- September 21: The DOJ won on the motion. The appellate court excluded the classified documents from Judge Cannon’s order. The appellate court also gave Judge Cannon a shellacking and indicated that the appellate court didn’t think Cannon even had the power to appoint a special master.
- September 30: The DOJ filed a motion asking that the appellate review be expedited.
- October 5: The DOJ won on that motion as well. Under the expedited schedule, the briefing was completed last week and oral arguments are scheduled for November 22.
- November 22: Oral arguments did not appear to go well for Trump.
In this week’s court filings the daggers came out. Then Cannon stepped in and tipped the scales in favor of Trump
On September 22, Special Master Raymond Dearie announced a case management plan. It’s here. Evidently Dearie listened to Trump claiming on right-wing media that the FBI planted evidence because, among other things, Dearie required Trump to submit an affidavit by Friday as to any inaccuracies in the FBI’s inventory sheet. In other words, Dearie ordered Trump to submit a sworn declaration under penalty of perjury outlining why he believed evidence had been planted.
Dearie also expedited the schedule so that the entire matter would be concluded in October. Among other things, he gave the DOJ and Trump a single day to agree on a vendor.
On September 26, Trump filed a letter with Dearie setting out his complaints. He filed his complaints under seal (so the public couldn’t see them).
On September 27, the DOJ responded to Trump’s complaints in a publically filed letter addressed to Dearie, allowing us to infer what Trump had complained about. Among other things, Trump objected to the special master’s requirement that he submit a sworn affidavit if he had reason to think evidence had been planted. Trump also wanted an extension of the deadlines partly because he was unable to contract with a vendor to handle the documents. Apparently none of the proposed vendors would enter a contract with him.
The DOJ told Dearie that, to avoid further delays, the DOJ could enter a contract with a vendor and send the invoice to Trump. The DOJ also defended Dearie’s case plan. (Here’s my Twitter-thread analysis of the DOJ letter.)
Trump then responded with an open letter, clearly peeved that the DOJ made his complaints public.
On September 29, Judge Cannon stepped in and ruled in favor of Trump, even though the letters were addressed to Dearie and even though she had put him in charge. Essentially, she gave Trump everything he wanted, including extending the deadlines and telling him he didn’t have to submit the affidavit.
The DOJ’s response to Cannon’s shenanigans was to file a motion in the appellate court asking that the appeal be expedited.
The way to defend Trump would have been to stop all of this at the beginning. The White House lawyers (Philbin and Herschman) tried to get Trump to return the documents early on. Had Trump done so, and fully cooperated with the government to make sure that nothing was compromised or disclosed, he would not be in nearly as much trouble as he’s in now. As it is, he continually lied, he concealed the documents and said he didn’t have them, and he kept changing his story in public. And now he’s unnecessarily antagonizing the DOJ, wasting their time, and running up their expenses.
In other words, he could have been reducing his criminal liability instead of behaving stupidly and increasing it.
After I tried to explain all this on Twitter, the Washington Post published an article about Trump’s new lawyer, Chris Kise with this headline:
Kise–a former Florida solicitor general–counseled his famously combative client to turn own the temperature with the Department of Justice, people familiar with the deliberations said. But quiet has never been Trump’s style–nor has harmony.
According to the article, Kise told Trump that the “Federal authorities searched his Florida residence and club because they badly wanted to retrieve the classified documents that remained there even after a federal subpoena. With that material back in government hands, maybe prosecutors could be persuaded to resolve the whole issue quietly.”
Also from the article:
Continuing to attack the Justice Department and the FBI, Kise argued, was likely to cause federal authorities to be more aggressive. Kise suggested to other Trump advisers that the best solution would be to try to find an “off-ramp” with the Justice Department before a possible indictment or trial; he has said he thought Trump could avoid criminal charges.
However, other Trump advisors were telling Trump to be more aggressive. From the filings this week, it’s clear that Trump is listening to them, not Kise. My guess is that Trump believes that being aggressive will play well to his base and put more money into his pocket.
Any fascist leader worth his salt wants to flex his muscles, show he’s tough, and prove he isn’t afraid of something as flimsy and weak as a democratic government. Fascists love tough guys. NYU scholar Ruth Ben-Ghiat calls them Strongmen:
Instead of listening to good legal advice and accepting the authority of the United States government, Trump seems to think he can beat the government, so he wants to fight, fight, fight.
After that, you probably need some dog content
He definitely has us well-trained. Here is an example: He hates to be left behind. He wants to go wherever we go. If we have to leave him alone, he is so impossible when we return that we avoid that situation by taking him with us whenever possible.
Could you give info at some point on the 5th amendment grand jury requirement? Most people don’t seem to know it exists. I’ve paid attention for quite a while and noted there are grand juries operating in pretty much every orange thing related investigation. I only took the crim law & procedure required to graduate and didn’t practice crim at all, so this is not my arena but I’m assuming the grand jury has to finish and recommend indictment before Garland can act but most people seem to think it’s entirely at Garland’s discretion. I’d love to see one of your great explanations of this aspect. Thanks, Leigh
Hi Teri, Could you add a timeline of all the upcoming deadlines for filings and responses in the Trump vs. United States case so we can anticipate what’s coming? Either here or in the FAQ , it would be helpful. Thanks.
I don’t have time to do that. The way I keep track is to follow the journalists on Twitter who report on these cases. A few off the top of my head: @hugolowell, @emptywheel. @MacFarlaneNews @ryanjreilly
If just 40% of the minority party still back him he has no political future. It is the intensity of the support that forms the danger.
And the fact that when Trump is going (as one day he will be) someone else will take his place and perhaps do the Trump act better, without the baggage.
Hitler came back from far worse tbh! Trump certainly believes he can do better than that.
That has been my greatest fear ever since tfg was sworn into office.
we didn’t learn the first time around, and now he’s polling 2 points ahead of biden. the future of our country is at risk.
Teri. How likely do you think SCOTUS would or could circumvent the laws, rules, etc. concerning National Security to give the former what he wants? They’ve done some pretty spectacular circumventing lately, I fear, and more to come undoubtedly.
R
I’ve been searching for an answer to a question similar to Randy’s.
Trump wants SCOTUS to disqualify the 11th Circuit as the appeals point. Even if they did lift the stay, nothing changes. I get that he wants them to order access to the classified documents… but it seems like Cannon mooted that by rewriting her order when she got spanked by 11 Circuit.
Weirdly it also asks for the special master to be removed, if I’m reading it right – that’s the thing they moved (not sued) to GET.
The latest deflection about trading the seized documents for classified Mueller documents seems very odd. Maybe he thinks it will help him with Putin, but seems like Putin is busy.
Hi, Kath and Randy: So far, the Supreme Court has not done what Trump wants (when he is the petitioner in his capacity as a citizen and not president.) They didn’t help him with his election fraud cases, they didn’t help him get out of testifying, and they did not help him when he wanted to prevent Congress from getting presidential records from NARA. I can’t see them sticking their necks out for him in a document theft case. There is nothing to indicate that they would do that.
Thanks!
Haven’t read thru all comments yet, so will understand if this is redundant & you don’t answer…my stomach dropped when I read, ‘~40% of Republicans’ are still backing him, so then my horror & fear & pls-don’t-let-it-be-so voices came back with: Maybe…do we (USA) still have the same number of Republicans—maybe some of them b/came independents as a result–ie– b/c then the 40%’s numbers could be a dilution of the original #s of Republicans- say from even a year ago? ‘Wishful thinking’, I’m guessing might be at play in my psyche, but needed to ask. Thanks again Teri, for all the work you put into clarifying this & other parts of our vast Justice System/ & other parts of the Legal world to us. I think your much-shorter-legged 4-legged’s walk-persnickety is actually your furry best friend just fulfilling his Personal Trainer duties, as Weight Bearing Exercises are the best way to keep your bones strong & he is providing the necessary weight in a camaflouged, and much more appealing form!!
From a librarian / archivist point of view:
In it’s investigation, is the DOJ trying to find out what highly classified documents the former president has?
Don’t they already know?
Isn’t there a very specific signing-out and -in process for such documents?
I’m sure they are checking to see if anything else is still missing. It seems that Peter Navarro may still be keeping documents considered presidential records (probably email or text messages used for White House business)
Clearly, the riling up of the base and attention seeking are a big part of this-and Trump loves insulting people and trying to humiliate them (and has unlimited grandiosity about himself). But I wonder whether his refusal to follow good legal advice and acquiesce in the government taking the documents back isn’t something more. Trump likely lies to his attorneys, since he lies to everyone. If he’s aware of new and more damaging revelations–more crimes in new flavors (a little vertically integrated seditious conspiracy anyone?) or damaging information that HE would consider too humiliating or too dangerous to his business’s continuing existence, he would have lots of incentive to do desperate things to try to keep anyone in the government from looking at these, and select only attorneys who would go along with that. (In this case, the non-classified documents might be more important to Trump than the classified documents)
Thank you, Teri, for your wisdom and class.
Given that both Dearie and the DOJ have said they expect prompt payment of invoices (for Dearie’s work and the vendor), what happens if the plaintiff doesn’t pay them promptly?
He can be held in contempt of court. Courts also have the power to seize assets, but I don’t know the particulars of what rules would apply in this court.
“Shortly after the interview, I thought of ways I could have given much crisper answers, which annoys me to no end.”
Thank you for so generously sharing your expertise and for modeling a continual drive to excellence; so necessary, and much appreciated!
According to reports, “The National Archives has told the House Oversight Committee that it has not yet recovered all of the records from Trump administration”. Given that Ivan was a small woman that was creamated, but still required 10 Pallbearers, how difficult will it be to get a search warrent to exhume her coffin. 🙂
I guess there is nothing public to indicate that the former guy delivered the goods he stole to anyone, but how much more trouble would he be in if, for example, he delivered Israel’s nuclear secrets (to pick a country at random) to Saudi Arabia?
He would be in much, much more trouble.
I have a hunch that we are heading there.
. . . . . . Why hasn’t tRUmp been indicted? . . . . . .
Not for J6 stuff. That all still has 3 years or so before the SoLs have run. The question is about all the campaign finance laws and inauguration embezzlement and Mueller-revealed obstruction that has happened. Discussion of those crimes seem to have dropped off the narrative because of all the new, shiny J6 stuff. The maintenance of the rule of law _requires_ that campaign criming be actually punished.
> If the Republicans win in the midterms, this will further embolden Trump and his Republican allies.
> They’ll have reason to believe that they have the support of a majority of Americans.
AMEN !!! Thank you.
Typo, but you’re pre-forgiven:
“It seems to me that he gambling that fascism”
–>
“It seems to me that he is gambling that fascism”
Teri, thank you for another clear and concise summary. The timeline you provide is crucially informative.
Given, as you observe, the obvious contempt for our government and (more importantly) the long standing strategy of weaponizing the political and legal systems for personal gain, what is the end-game here?
I understand that you deal in facts and legal realities. I appreciate that you don’t seem to engage in speculation. So these questions may not be reasonably answerable, and I would respect that.
If 45 is charged, could he actually be convicted? (seems likely)
If convicted, what consequence would he face?
Also, what kind of appeal might be pursued, to avoid accountability and prolong the drama and attention?
In my opinion, this is purely political – a legal crisis intentionally provoked. Ethics don’t even enter into it. (They never seem to with 45.)
A lot to ask – I know. I really appreciate your dedication and focus!
I think the end goal is a fascist government. They don’t call it that, but it’s basically what they want. As far as penalties, I really wouldn’t know at this stage and it would be guesswork. We can’t talk about appeals until we know what happens at the trial leve.
I believe you’re right. The Republicans have little choice but to either go fascist or change their platform. Texas is on the cusp of turning Blue and once that happens, the Republican Party will never win the White House again.
It took took me quite a long time to come the the realization that the MAGA wing of the Republican Party is actually in favor of rejecting democracy so they can hold onto power. This is fascism pure and simple.
Good post. Your comment re civil vs criminal triggered a thought. Do you suppose The Plaintiff is so accustomed to years of civil litigation his instincts are working against him here? (Along with being too egotistical to take anyone’s advice)
Yes, I think this is part of it. He is used to bullying people through the legal system and he doesn’t understand how criminal courts differ.
“Mom, pick me up!” says JJ. “All this legal maneuvering is making me tired!”
Seriously, though, thank you *very* much for this extremely clear guidance through legal waters that otherwise look murky to us non-lawyers out here. I think you’re entirely correct that Trump, with the support of the GOP, is attempting to destroy the federal criminal justice system. We must continue to get the word out and hope enough voters realize what’s going on before it’s too late.
Thanks Teri. I know the annoying feeling of not giving the best answers; fortunately, I have never done so in a public forum, as you did (double plus bad feeling).
Trump has spent his whole life demolishing obstacles in his way, he lacks the flexibility to think otherwise. He’s gambling on the political landscape shifting his way, after the pesky mid-terms are over, and certainly by 2024. Plus, thanks to Mitch McConnell, and as evidenced by Judge Cannon, he has “his judges” in place (God help us all). And so the moment of truth – which you describe as when the client finally realizes what they’re facing – the moment when “the light goes on” – hasn’t happened for Trump. We can console ourselves that his rigidity has only served to dig his own hole deeper.
I had read there was division among Trump’s lawyers about the approach to take, but didn’t know the backstory. Thanks for explaining.
Why does it always feel like the DOJ is counter-punching off balance? Why does our system allow Trump to choose his Judge and why does our system not force a judge to recuse his or herself in obviously bias situations. An unbiased Justice system is a necessity in a democratic system and belongs under the same umbrella as equal treatment under the law.
judge shopping is a thing. Everyone does it. I don’t understand what you mean by “off balance.” They won the motion in the appellate court.
There are bad judges. There will always be judges we don’t like and judges we disagree with, and judges who make terrible decisions.
Sometimes good judges slip up and make bad decisions. I have a few stories about that.
“There are bad judges.”
And then there are _really_ bad judges. Our loose Cannon is among the latter. Pending a change in the Constitution (or a Senate w/ 67 Senators willing to put country before party), perhaps a law change that establishes a Siberian division in every circuit? Force ’em to go there.
Is Cannon obviously biased? It seems to me, someone who wants to see trump lose. That she is. I know judges can make any decision they want, but could this lead to bad things for her? She doesn’t seem to have been chastened by the 11th Circuit’s opinion…
Here’s JJs’ little sister, Lexi. https://pbs.twimg.com/media/FOzd-wbWUAI8kRz?format=jpg&name=240×240
It was delightful to see you and listen to you on the podcast. As a reader, I’m partial to your blog and Twitter feed. Everything you write is so logical and easy to follow. I’m so grateful to you for educating us all!
Mrs. Kanefield,
Thank you so very much for your informative posts. I’m am confused. I thought the appellate court overruled Judge Cannon. I do not understand how she was able to overrule the instructions of Dearie. What do you anticipate what the response from the appellate will be? Is Judge Cannon in jeopardy of being removed or prohibited from presiding here? I apologize! I lack the legal vocabulary to even verbalize my questions! I am confused because Canon’s rulings appear blatantly unethical. Why even authorize a special master if she intends to subvert him at Trump’s every whim? Doesn’t that nullify the whole point of having a special master?
Thank you, and thank you again for your clear and informative updates!
Keating Ward
They haven’t overruled her yet. The ruling they gave (the only so far) was to grant the government stay for the classified documents pending appeal. It was a big deal, particularly the way they criticized Cannon, but the actual appeal is still pending.
I expect the DOJ will win the appeal and the entire case will be thrown out. I think that entirely because of the way the court wrote the decision granting the DOJ the stay.
Thanks for asking those questions! They made me realize I’d conflated the Motion w/the Appeal and then Teri’s response put me back on track. I find it is hard sometimes for me to keep the different legal processes straight, and sometimes I don’t recognize I’ve come to/am walking around w/the wrong conclusion right away. So thanks very much for putting it up here, despite feeling you lacked the vocabulary to do so. Very helpful❣️
I guess he thinks he’s Slim to the government’s Jim. Back here on planet earth, it seems to me that he’s talking himself right out of the frying pan and into the fire. Time will tell. I am content to wait a while longer. I feel that when the Justice Department unveils their indictment it will be a masterpiece of solid, incontrovertible evidence and proof. Then the real shrieking will begin.
I love a good Jim Croce lyric worked into a blog post about the DOJ v Trump! Great review of what’s happening! How much power does Canon actually have? What’s it going to take to stop her from doing some irreversible damage?
Thank you for all you do!!!!! Your analyses are always so enlightening!
If the DOJ wins its appeal, the only damage she did would be to allow Trump to delay matters, but because the classified documents have been excluded the delay really isn’t much.
The lawsuit will have done Trump more harm than good — if you think of Trump as a normal defendant.If what he wants is publicity, it helped him.
It’s so refreshing to read your blog. A little dose, or large dose, of sanity. Thank you.
I had no idea Trump had filed his latest whine under seal. But then, I’m having trouble finding all of the motions, etc., regarding the appeal in one place, so when someone posts something, I keep a copy of it. It’s probably on Pacer, but there’s a cost to access.
If you google the name of the document you can probably find it. Lots of news outlets publish them. I included a few links, but should have included more.
Darcie, here you’ll find both cases:
Search Warrant Docket: https://www.courtlistener.com/docket/64872441/united-states-v-sealed-search-warrant/?order_by=desc
Trump Appeal Docket: https://www.courtlistener.com/docket/64911367/trump-v-united-states/?order_by=desc
Thank you!
We’ll have to see how the midterms go, but given our current 50-50 Senate where the GOP members represent over 42 million fewer people than the Democratic members, it’s scary out there. People need to recognize what’s at stake. You’d think that the craziness of the recent court filings would do the trick, at least for any sane person living in reality.
He doesn’t really want a walk. He’s like a two-year old: he wants a carry. Oh, sorry, I meant the puppy, not Trump.
How is it lawful having the case adjudicated by a judge Trump picked? I would think there are ethical issues and Cannon should recuse herself.
She probably should have. Her own posture in this case was weird.
It seems Aileen Cannon is unfit for the bench. Is there any way to force or at least incentivize an early retirement for her?
Btw, this post is very clear and enlightening. Thanks
She’s there forever, unless she wants to retire. There are a lot of bad judges out there. The idea is to make sure the higher courts are good, which requires keeping the White House and Senate in Democratic hands.
What do you think of the suggestions on Twitter that experienced Federalist Society lawyers are writing Cannon׳s opinions in this case for her?
Unless there is something more than speculation I’d say very unlikely.
She seems to be acting more like an advocate than a judge. While I know that a Federal District Judgeship is really a plumb gig in the law–at least in terms of status & respect–since she doesn’t seem to care about being broadly respected as a jurist, I wonder if she’s looking toward some role beyond being a judge–either some think-tanky, ideological law institute sort of thing, or perhaps a high position in the DOJ in Trump’s next administration?