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Thanks for being a subscriber to the Status Kuo! I'm changing up this header to see if anyone notices! If you did, consider making today the day you upgrade to a paid subscription! See what I did there? A Legal Lightning Round (04.05.24)In courtrooms and even from prison, the MAGA world is having a legal moment.
Rulings, bonds, hearings and pleas. There's a lot happening with the MAGA villainy in the past 24 hours. Let's hop around the country, from Georgia to New York, from D.C. to California, and from federal prison to Florida, to get a birds-eye view of all the legal happenings. It's mostly a delicious round for this Schadenfriday, with one turd in the punchbowl courtesy of Judge Loose Cannon. Ready? Flip your hourglass timers, and let's go! Words, words, words In Georgia, Judge McAfee denied Trump's motion to dismiss (this is a "demurrer" in state court for you legal nerds) the RICO-related charges against him. Trump had made a sweeping First Amendment argument, and it was a fairly big, important motion, but honestly one that Trump largely filed in order to eat up time, make a case before the public about him being punished for his speech, and to preserve the question on appeal. Trump argued that statements he made relating to the stolen election—including that "perfect" call to Secretary of State Brad Raffensperger, where he wanted him to "find" 11,780 votes—were constitutionally protected free speech. But just because you happen to say some things while committing crimes doesn't make the crimes suddenly not crimes. Free speech only gets you so far. My new favorite way of explaining this is from law professor Joyce Vance. She likened this to saying "Stick 'em up!" during a bank robbery. Those words are evidence of a crime, not protected speech. It didn't take much for the judge to toss Trump's argument in the legal dung heap where it belongs. In his ruling, Judge McAfee wrote, rather respectfully I should add given how silly this was,
In other words, nice try, Donald. The name is Bond. Weak Bond. In New York, it turns out the company that helped Trump post a $175 million appeal bond, Knight Specialty Insurance Company, may not have had the financial standing and proper qualifications to have issued it. Ruh roh. The court already rejected the bond once on technical grounds on Wednesday, but Knight fixed some things and resubmitted it yesterday. But it may not have corrected some deeper issues. According to a filing by Attorney General Letitia James, Knight doesn't have the right surety qualifications to act as an insurer in the state of New York. And it may not have sufficient financial "surplus capital" on its own to have posted the bond, at least not according to the financial statements it supplied, under New York state requirements. Knight is owned by billionaire Don Hankey. He made his fortune offering high interest loans to car buyers with bad credit, which seems about right for this particular act of the play. Nice casting. It may be that Knight can quickly rectify these issues—a spokesperson says the bond is fully collateralized and backed 100% by cash—but for now a shadow remains over the bond itself, meaning Trump may have to scramble once again if the Knight bond ultimately gets the thumbs down. Lowering the bar There are two related matters before courts and bar disciplinary committees, both of which look like they're headed toward a disbarment sanction because everything Trump touches ultimately dies. In D.C., the Bar disciplinary committee ruled that Jeffrey Clark violated his professional duties when he helped Trump try to hang on to power in 2020. You may recall, Clark was the environmental lawyer within the Justice Department who sought to push out Acting AG Jeffrey Rosen and elevate himself in his place, all so that the Department could put its fingers on the scale over the false claims of election fraud. The matter now proceeds to sanctions, and bar investigators say they will seek disbarment. In California, Trump attorney John Eastman, whom one federal judge has already found likely committed two federal crimes, has begged the court to pause its disbarment ruling so he can still earn money and pay his legal bills in the Georgia criminal RICO case. Failing to read the room, Eastman also submitted affidavits from clients including (checks notes) Marjorie Taylor Greene and Matt Gaetz. I'm sure the support of such upstanding MAGA terrorists will move the needle with the court. Prison blues From the federal penitentiary, Trump acolyte Peter Navarro has begged SCOTUS to release him while his appeal is pending, after serving just 15 days of his four month sentence. Guess he didn't like the food. Previously on MAGA true crimes, Navarro got sent to federal prison on two counts of contempt of Congress after he failed to comply with a January 6 Committee subpoena. The House made a criminal referral of the matter to the Justice Department, and Navarro was thrown under the Trump bus after the ex-president failed to provide any evidence that he had instructed Navarro not to appear on executive privilege grounds. Unlike his co-troll Steve Bannon, Navarro didn't succeed in putting off his sentence while the matter was under appeal. But don't worry. Steve Bannon will almost certainly lose his appeal and serve time, too. And he's also facing money laundering and fraud charges in the state of New York over the same "Build the Wall" fraud that sent his co-defendants to prison for years. That matter goes to trial in New York next month. Tick tock, Steve. If you're on the Navarro beat, you'll recall that this is actually his second such request to be let out of prison. Chief Justice Roberts already turned down his first one right before Navarro started serving his sentence. His chances on this second plea are about as good as they were the first time he fell on his knees before the Chief Justice. Sorry for the visual. You hurt my feewings Finally, in Florida, Judge Aileen Cannon denied Trump's motion to dismiss the theft of national secrets criminal case under the Presidential Records Act (PRA). The law was so plainly against Trump on this that, had Judge Cannon actually granted the motion, she would have faced a brutal reversal on appeal that also could have resulted in her being booted from the case by the 11th Circuit. But this wasn't really good news for Special Counsel Jack Smith. In fact, it almost would have been better if she'd actually dismissed the case now. To understand why, we need to get into the legal weeds with a noisy whacker, so bear with me while I mow some down. In that same order, Judge Cannon also denied Smith's request that she clarify now whether the PRA has anything to do with the case. (Narrator: It does not.) As my earlier piece laid out, Cannon had set something of a legal trap by keeping this ridiculous notion of the PRA's relevance to the case alive. While she did rule that the PRA doesn't provide any reason pre-trial to dismiss the case (emphasis on pre), she kept in her pocket the right to rule that it might legitimately come up later. In short, the Cannon powder remains dry on her possibly using the PRA to dismiss the case during trial—a dangerous development that could allow Trump to skate completely because of the rules around double jeopardy. We should assume, given her sycophancy to Orange Jesus, that this is her ultimate goal. Smith now has to figure out a way to challenge Judge Cannon's foot-dragging so that he gets the legal question about the PRA resolved before, and not after, the trial starts. The problem is, Judge Cannon's rulings are like jello: There's nothing to latch onto for an appeal. By refusing to rule, she has made it very tricky to appeal. It's like trying to appeal a non-decision. Even a "writ of mandamus" to the 11th Circuit probably won't work here because, as legal analysts Katie Phang and Lee Kovarsky note, such a writ needs to "mandate" her to do something that she has a clear legal obligation to do. And right now, Judge Cannon is under no legal obligation to issue an advisory ruling on the relevance of the PRA to the case. She actually whined about this in her order, saying without citing any cases that Smith's request was "unprecedented" and "unjust." Her original order soliciting early draft jury instructions shouldn't be, she complained, "interpreted as anything other than what it was: a genuine attempt, in the context of the upcoming trial, to better understand the parties' competing positions and the questions to be submitted to the jury in this complex case of first impression." The MAGA waaaambulance siren is quite piercing this week. So how does Smith get out of this trap? Lawyer Bradley Moss suggests the proper way to deal with this is through a "motion in limine"—which is a standard way for a party to limit what facts or legal arguments can be made at trial. Smith could move, for example, to exclude any argument that the PRA, or any other claim that the classified documents that Trump took with him were "personal," be excluded from the trial. If Cannon denies that motion, Smith has something he can appeal to the 11th Circuit, where he also could demand her removal from the case. But such an in limine motion might have to wait until much closer to trial, depending on when Cannon has asked them to be submitted. That would result in more wasted time—which is apparently what Cannon and Trump both want. It would produce a highly unusual request for a recusal in the 11th hour. Not a great look. This gem from Andy Borowitz seemed apt.
If you're feeling down about Cannon, just remember that Eastman and Clark are getting disbarred, Navarro is eating prison food, Bannon soon will be, and that Trump had to get an unqualified sub-prime auto lender to post his civil fraud bond and that he goes to trial for falsifying business records in 10 days before a Manhattan jury. Have a great weekend! Jay |
― The Lincoln Project
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