As I’m sure you’ve heard by now, DOJ prosecutors have given Trump a letter telling him he is the target of the criminal investigation into the attempts to overturn the 2020 presidential election. (Trump’s lawyers confirmed this in court.)
Trump also said he had a deadline (which has now passed) if he wanted to talk to the grand jury. Naturally, he elected not to address the grand jury. That may have been an instance where the advice of a good lawyer and his own instincts coincide. There are rare instances when the target of an investigation should speak to a grand jury. This isn’t one of them.
Reminder: There are three categories in grand jury proceedings:
- A target has been linked to the crime with substantial evidence. A target is likely to be named as a criminal defendant.
- A witness has no criminal liability (at the moment), but has evidence the grand jury needs.
- A subject is in between: there is some evidence, but not yet enough for a person to be considered a target. A subject could become a target or a mere witness.
Here’s what is interesting: No other members of Trump’s inner circle received a target letter (or if they did, they’re not admitting it). Rudy Giuliani and John Eastman, when asked this week, said they had not received letters.
This is interesting for two reasons: First, if you’ve been following Merrick Garland’s explanations about how the DOJ is conducting this investigation, you know they are working from the bottom up, but if they indict Trump alone, it seems they’ve skipped a few steps. Second, prosecutors generally like to indict co-conspirators together. Indicting some co-conspirators but not others can show favoritism. It can appear that one of the co-conspirators is being targeted.
So what gives? Why is Trump the only top honcho with a target letter? Answering that question requires some speculation, and it can be hard to separate speculation from wishful thinking. With that disclaimer, I’ll give it a try: Prosecutors may have secured guilty pleas from other members of Trump’s inner circle. This means he would be indicted along with co-conspirators who have pleaded guilty and who are cooperating.
Think how much easier that would make the prosecutor’s case. Trump’s co-conspirators take the stand, and say, “Yes, I did it. So did Trump.” Then they offer documents or records, including digital records.
Documents and records are important because here is the thing about flippers: they are, by definition, insiders. When insiders flip they are inherently unreliable because they are part of the criminal enterprise. A good cross-examiner can make them look unreliable, particularly if they are cooperating as a part of a deal that benefits them. But documents and records can provide more solid evidence. Witnesses who are part of the criminal investigation can provide documentary evidence that might otherwise be beyond the reach of prosecutors. They can explain the documents and records the prosecutor has already obtained. They can corroborate other witnesses. They can say what happened during key phone calls. They can explain a pattern of phone calls.
Is Rudy Giuliani cooperating?
Recall that not long ago, Giuliani did a two-day proffer. Here is a good definition of a proffer:
Two days is a long time. A person can answer a lot of questions in two days. It would seem that Giuliani had a lot to say.
Basically, in a proffer, the defendant tells the prosecution everything he or she knows. Given the terms of the agreement, prosecutors cannot use the person’s proffer statements against them in future proceedings, except for untrue statements, which void the agreement. Offering information doesn’t guarantee that the potential defendant will be offered a good deal, so they are risky and used only when a defendant knows he or she is in big trouble.
On the other hand, immunization happens in this instance: A witness appears before the grand jury and refuses to answer questions by taking the Fifth. Any person who believes he or she may have criminal liability can stand on the Fifth. Well, if the prosecutors decide they want the person’s truthful testimony and don’t care about prosecuting the person, they will immunize the person basically saying “We will not prosecute you.” Once a person has been immunized, they no longer have potential criminal liability, so there is nothing to prevent them from talking. At that point, they lose their Fifth Amendment protections and they either talk or they are in contempt. Smart people who don’t want to go to jail (or people with good lawyers) are so grateful to be immunized that they talk.
Rudy did a proffer, so we can assume he is in big trouble and is hoping for a deal.
It’s hard to imagine Giuliani turning on Trump. But Giuliani has so many troubles right now—lawsuits, he is in disbarment proceedings, he was given a letter telling him that he is a target of the Georgia investigation—it’s possible that he said, “I’m done. I’ll tell you what I have. Go easy on me.”
It’s hard to find another motive behind a two-day proffer.
Is Mark Meadows cooperating?
In a Washington Post piece published today (you can read it free through my subscription by clicking here) we learned that during the summer of 2022, Meadows was turning over text messages to the DOJ that nobody (not even the January 6 committee) had seen. Check out the timeline:
Fall of 2021: Initially, Meadows cooperated with the J6 Congressional investigation. Then abruptly, he stopped cooperating.
December 13, 2021: The J6 committee, furious, referred Meadow to the DOJ for criminal contempt of Congress. (They also referred Steve Bannon, Dan Scavino, and Peter Navarro.)
June 3, 2022: We learned that the DOJ declined to prosecute Meadows and Scavino, but prosecuted Bannon and Navarro. The DOJ, naturally enough, did not explain why it prosecuted Bannon and Navarro but not Meadows and Scavino.
Summer of 2022: Meadows was turning over text messages to the DOJ.
Here is what it sounds like to me: We know Meadows is a two-faced guy who wants to please everyone. He isn’t particularly brave. In 2021, he complied with the J6 committee because he does what he’s told. Then he stopped. Why would a coward stop? Well, Trump does have a habit of threatening people. But Meadows might have been willing to talk because talking to the DOJ was safer: Everything the J6 committee did was public. On the other hand, grand jury proceedings are private and this DOJ ran a tight ship. There were no leaks.
This is from May, 2023:
Is Meadows cooperating? Is Guiliani making a deal? We don’t know. And will have to wait to find out.
Trump’s Trial Schedule
- January 15: The next E. Jean Carroll trial (civil)
- March: Manhattan hush-money case (criminal)
- May: Stolen documents case (criminal)
Plus, we’re expecting two more indictments, one from Georgia and of course, one for the J6 insurrection. You can see that Trump’s 2024 trial dance card is getting full.
Trump’s Target Letter Listed 3 Crimes
Keep in mind that the DOJ is not limited to the three crimes listed.
Crime #1: conspiracy to commit an offense or to defraud the United States
This is a general conspiracy statute. Conspiracy statutes allow a prosecutor to cast a wide net. My mentor at the federal defender’s office, Mark Reichel, called it “the darling of the prosecutor’s garden.” To get a conviction, the prosecutor only has to show that two people entered an agreement to commit a crime against the federal government and that one of them took a step in furtherance of that crime.
The “step in furtherance” prevents people from being prosecuted for ideas. You can’t be prosecuted for sitting around with a friend and, for fun, planning the perfect crime. But if one of you takes a step to carry out the crime, you’re both in trouble.
Crime #2: Tampering with a witness, victim, or informant.
Despite the name, this statute includes other crimes and has been used to prosecute J6 defendants for attempting to obstruct a proceeding. This statute also includes a conspiracy element which reads: Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.
Crime #3: conspiracy against rights
This is the interesting one. Here is a good summary from the New York Times:
“. . . modern usage of the law raised the possibility that Trump, who baselessly declared the election he lost to have been rigged, could face prosecution on accusations of trying to rig the election himself.”
As Marcy Wheeler said, we knew all along that Trump and pals were deliberately trying to suppress the votes of Black Americans. All you have to do is look at the cities they were targeting.
The NAACP has been on it all along. They filed a suit against the Trump campaign and the RNC for their efforts to discount the ballots of Black voters. Will the indictment include this accusation? I don’t know. We will have to wait to find out.
RICO (really!)
And we also learned that Fulton County DA Fani Willis is planning to charge Trump (and others, no doubt) under Georgia’s RICO (Racketeer Influenced and Corrupt Organizations Act) statute.
The Georga racketeering statute is here. RICO statutes in general are designed to get to organized crime. The Georgia statute, like the federal RICO statute, requires two underlying crimes and a pattern that suggests a criminal organization. The difference is that under the Georgia statute, the underlying crimes can be any crime. The federal statute, in contrast, requires that the crime be “in connection with the organization.” So it’s easier to charge racketeering in Georgia.
And you know, Trump does act like a mob boss.
The two crimes Willis is reportedly considering are influencing witnesses and computer trespass. We all know about the steps Trump has taken to “influence” witnesses. “Influence” is much easier to show than, say, “threatening” or “strongarming.” I don’t think there is any doubt that Trump’s call to Georgia Secretary of State Raffensperger asking him to “find” the necessary votes for Trump to win would count as “influencing.”
As far as “computer trespass,” remember when computers were breached in Georgia? Here is what happened:
Well. So now you should all feel ready to read the indictments when they are issued. 🤓 Yup. This is the nerd channel.
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Here is last week’s blog post as a video. Today’s blog post should be a video within the next few days.
And now, time for something fun.
I hope you all have something fun planned for this weekend. Like maybe chasing seagulls:
Thanks Teri. Alway good to read your weekly posts.
I’ve always felt that Trumps term in office was a RICO op from the git. Starting with declaring voter fraud due to his not winning the popular vote to the fraudulent body count at his inauguration. And then practically everything else from then on; Comey’s negligence, the FBI’s surveillance of his campaign, right up to his Pandemic denial and the 2020 election fraud. And all those slimy people that populated the White House…eeewwww
I believe the insurrection would have happened even if he had won just to have all those clay-brain militia groups under his command as he took control of the entire suite of institutions and offices of power.
No wading through a slew of generals or others to “get things done”. Can you imagine Rhodes and/or Tarrio as his right-hand generals? George Orwell couldn’t have written a better script.
Vote people.
R
As always, clear and to-the-point. Keep the media fog from taking over my thoughts.
Thank you for this, and also for letting the public have free access to Memoirs And True Confessions. Now reading. Very, very pleased to have a great summer read, albeit with a limited budget.
So many questions. So much speculation. So few definitive answers. So much hope.
I would enjoy a Trump / Giuliani / Clark / Meadows / etc. perp walk to jail almost as much as I enjoy dog seagulls pics.
Love the doggie!
Thanks so much, Teri! This was really interesting–fascinating, too. My inner lawyer loves all this stuff. And here’s to our dogs chasing seagulls!
> As far as “computer trespass,” remember when computers were breached in Georgia?
That was a physical trespass. Isn’t “computer trespass” typically a rummaging around electronically? In this case, the perps managed to do both at the same time. A two-fer just to make sure it really counted as a trespass?
I’m pretty sure they stole data. I just cut and pasted a few paragraphs from an article.
Undoubtedly. I just meant that not only did they steal programs and data (programs not normally being construed as data), but they also physically intruded into them. A double trespass. 🙂
> RICO statutes in general are designed to get to organized crime.
??? Doesn’t that pretty much describe tRUmp’s activities?
He’s been a mafiosi money launderer for decades.
That’s organized crime. QED
Best nerd channel out there—and puppy pics to wrap it all up! Thank you, Teri ☺️
Excellent rundown. I forgot but is the Tish James NY case being pushed back? I think that was supposed to be in oct/nov of this year.
Teri — If there’s anyone whose speculation that I’d wish to read and trust to be free from wishful thinking, it’s yours! Thanks for the cogent analysis. I think you’ve nailed it!
An indictment against Trump with co-conspirators may be wishful thinking. It’s also the best case scenario.
Teri, thank you for another clear explainer for us non-lawyers! My husband and I look forward to your weekly blog! The burning question this week has been whether Judge Cannon is catering to Trump by pushing the documents trial to late May 2023! As I understood it, Jack Smith had turned over all discovery and marked the most important parts so the trial could happen in December. I’m afraid Cannon will continue to allow delays beyond May and then it will be too late. The law experts seem divided as to whether this date was a win for Trump—or for Smith. What is your opinion?
I am not a national securities lawyer, but a few who I trust said that the date is not unreasonable particularly if it sticks.
I suspect that one reason people are worried about this is because people think the outcome of a trial can change the election.
I don’t believe that it will. I think that most people willing to vote for Trump given the nature of these indictments will also vote for him if he is convicted. They will explain away any convictions the same way they explain away the indictments: “It’s all a political witch-hunt!” This will be particularly true of any indictments out of D.C. or Atlanta (because, racism.)
I also believe (and so do some smart political observers, including the folks at the Lincoln Project) that having Trump on the ballot will create a blue wave.
The judgement in the E. Jean Carroll case finding that he sexually assaulted her hasn’t changed the minds of hardcore MAGA.
That the verdict in the E. Jean Carroll case hasn’t dissuaded the hard-core MAGA faction exemplifies the pathology that has infected the U.S. A blue wave to cure this particular ill would be nice, but it’s not guaranteed. It’s going to be a long 16 months.
Ande: Yes—the blue wave might be disrupted by a third-party candidate from either No Labels or Kennedy Democrats. Ugh. It’s going to be a bumpy ride, for sure.
Thank you—I appreciate your insights. Sounds like we all need to help get out the 2024 vote in huge numbers!
To your point about Trump’s full dance card. I do wonder the toll all this will take on his health. I know he believes he is a God, but his biological self is not immune to stress. The trial tsunami could take a big toll. We will see.
As always, you provide excellent analysis and humor. The photography is great. JJ looks like the happiest dog ever. Thank you!
Thank you for your cogent posts.
And the pup pics 🙂
Thanks for putting this together, clear and concise.
This pic of your pup is awesome.
Thank you for all the info Teri. Much appreciated.
My question is, didn’t Mark Meadows get $1m dollars from Stop The Steal money? (I think it was that). I haven’t heard anymore about that since the congressional hearings.
I should re-watch all those hearings!
To what extent will any trial dates for new indictments be influenced by existing trial dates, other than not being scheduled at the exact same time? For example, would a new federal indictment necessarily get in line behind the stolen documents case, constantly being postponed whenever that one is delayed? Or could the judge for a J6 indictment set a trial date based only on the needs of that case, for example in December 2023 or April 2024?
Thank you for doing this. Your explanations help tremendously.
Thank you so much for these posts! They are wonderful for people like me, reeling from the twitter meltdown but hesitant to move to another platform. I would never have predicted it but the Twitter meltdown may have been a really good thing LOL, turns out only reading once a week or so is so much better for me than the endless doom scrolling I used to do and, with your help, I don’t miss anything important. Thank you!
As usual, enjoy your newsletter. I learn so much from you, thanks for taking the time to do this.
Thank you as always!
Teri,
Assuming both the Georgia and Federal charges we are expecting drop in the next 2-3 weeks, we know that they will be filed in Atlanta and DC, likely with judges a good bit less enamored of Trump than Judge Cannon.
Both also seem like they will be based on straight forward documentary evidence with clear corroborating testimony.
If both of these expectations hold, would you care to wager or offer odds on trials being scheduled/held in 2023?
Thanks as always!
It’s possible, but depends on lots of factors, of course.
Great as always; thanks so much. Typo: it’s “E. Jean Carroll”.
You’re the best, thank you for all the work you’re doing.
With regard to “skipping steps” in “working up from the bottom” – Is it possible (i.e. conceivable in the real world, not in pure theory)l that the target letter is about one set of offenses, but that the fake electors conspiracy, etc will be another set of offenses where the Special Counsel isn’t ready to charge yet?
It’s possible. That would make some sense, in terms of who received target letters. The problem is that I think the fake elector scheme is how they get to the civil rights violation in section 241.
Great rundown of Trump’s legal troubles. Thank you!
Assuming that Giuliani and Meadows are cooperating (and with the text messages from Meadows along with whatever else he’s provided and Giuliani’s two-day proffer, they have to be cooperating in some fashion), and with the convictions of the militia senior leadership already completed, it doesn’t seem odd at all to be only targeting Trump with this upcoming J6 indictment.
I’m very much looking forward to fun reading the indictments when they drop. This nerd channel is the best!
Yes, that’s why it’s surprising that nobody is ‘fessing up to getting letters. It could also mean that the indictment is still weeks away and more letters are doing out. Who knows?
Mark Reichel, who I often refer to (he’s the long-time defense lawyer, my once-upon-a-time mentor, and friend) thinks that people could be lying about having letters. He thinks people with good lawyers will tell them to shut up about their letters if they have them.
Might that also imply that various potential co-conspirators have wised up and gotten sound legal representation outside of Trump world?
Either way, whatever additional indictments fall on Trump and his inner circle should be exciting reading. And trial transcripts down the line should also prove interesting if those become available.
That makes a lot of sense. Why not lie? It wouldn’t be the first time for any of ’em. Also, they have a big incentive to not publicly say what they’re doing-because, even if they haven’t truly “flipped”-anything any of them does to keep themselves out of jail might anger Trump. I am wondering about John Eastman in all of this. (If a movie gets made, it will give Wally Shaw a chance to be cast as the villain in the Eastman role)
https://www.youtube.com/watch?v=qhXjcZdk5QQ
Thank you.
” it can be hard to separate speculation from wishful thinking.”
I love this statement. And all you very clear explanations.
Thank you
Awesome explanation as always. Now I can go to bed with some of my questions answered. Thanks!!!
Yippee!!! Fingers crossed!!!