Donald Trump Reveals His Legal Strategy and It’s Pretty Sad

July 14, 2023 Off By Todd Zwillich

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The doc days of summer

Today was supposed to be the first pre-trial hearing in Donald Trump and Walt Nauta’s combined 38-count indictment for mishandling classified information, conspiracy, and obstruction. That’s now supposed to happen on Tuesday next week. It’s a small delay, but the first tiny example of how Trump could try to wriggle out from under the mountain of evidence against him.

Whether it’s Iran attack plans or nuclear secrets, bathrooms or ballrooms, the Classified Information Procedures Act (CIPA) governs how courts handle state secrets when those secrets are evidence. And now we’re all in a crash course to understand how CIPA could help Trump’s lawyers, or even a sympathetic judge, to run out the clock on his charges.

When submersibles disappear or arcane statutes govern the future of the country, we need experts! I called up Brian Greer, who was an attorney in the CIA’s Office of General Counsel from 2010 to 2018. While there he investigated and prosecuted cases involving classified docs, CIPA, and the Espionage Act. (By the way you can hear Brian on the “Jack” podcast, where he regularly joins to talk about the behind-the-scenes realities of the Mar-a-Lago case.)

How important is it for Donald Trump to delay this case as much as possible?
It's probably his most important strategy that’s likely to succeed.. If he delays it past the election, and gets reelected, the case is over. He doesn't even have to worry about pardoning himself. His Attorney General will dismiss the case.

The first pre-trial hearing was supposed to be today. It's now scheduled for Tuesday. Has this delay dynamic already started?
I focus more on DOJ’s proposed trial schedule. They proposed starting to turn over classified evidence to Trump’s team, called classified discovery, on July 10. That we're already passed. Even if Judge (Aileen) Cannon adopts a schedule on Tuesday, there are still other things that have to happen before classified discovery can even start. You have to get the security clearances for the lawyers approved, which doesn't appear to have happened yet. You have to have all the logistics worked out for where the documents are going to be stored. For where the lawyers are going to go to view them.

Then most importantly, you have to have a protective order specifically governing classified information under CIPA section 3, that DOJ hasn’t even proposed yet. They are certainly negotiating it behind the scenes right now with Trump and Walt Nauta’s team. I'm skeptical that they would come to a mutual agreement on it, which means it would have to be litigated. That could take a few weeks to a month. So just on the start of the classified discovery, we're talking about probably a month delay, is my guess. Unless for some reason they come to an agreement on the protective order.

There’s a lot of concern about Judge Cannon, and whether she’s in the tank for Trump. Given all the complex procedure, when will we know if she’s trying to tilt things his way?
First, she could say, we're going to start the discovery process, and we're going to delay the scheduling of the trial until we figure out the scope of discovery. That's a probable outcome, I think, and that's not that unreasonable actually. I don't think she's going to say, “I'm going to schedule the trial for December 2024.” But she could say that we need to hold off scheduling the trial until we know more about the case through discovery.

When we start to get into the classified discovery disputes, that's going to be a big part of it. But those are going to be fought out behind the scenes without the public really knowing what's going on. It’s in that area where there’s a lot of opportunity for delay, and for the judge to facilitate that delay.

Trump's team before long will probably file some motions to dismiss the indictment all together. They may make their Presidential Records Act argument, they may make malicious prosecution arguments. They'll make their argument about the Special Counsel's appointment being unconstitutional. Those should all normally be easily rejected by the judge. But if she entertains those, obviously we’ll know she’s in the tank for Trump..

Judge Cannon has very little experience with criminal trials and zero experience with CIPA cases. Can attorneys take advantage of an inexperienced judge in a very complex case like this?
They can for sure. There are a bunch of novelties to cases like this that they just aren’t going to understand. It happened in Guantanamo military commission proceedings, where we've had a series of judges there who have no experience with cases involving classified information, and the defense counsel has taken advantage of that. I'm not defending everything the government's done, but that’s a great example of defense lawyers tying up inexperienced judges over how classified information should be handled.

The first substantive part will involve the government going to her ex parte, meaning without Trump’s lawyers present, to discuss their discovery strategy and what they're going to produce and getting her approval to apply certain CIPA tools for things like redacting documents, summarizing them, or making substitutions.That's all going to be done without Trump's lawyers present. That may itself be odd to her and something she doesn't react well to. The next phase would be Trump's lawyers giving notice of the classified information they intend to use at trial. Trump's lawyers will raise a stink about that, saying it's unfair that they have to do that, but that's in the statute. But she might find that unusual too. So there will be opportunities at every step for them to exploit her inexperience. On the flip side, there are also opportunities for the government to educate her at every step along the way.

So given what you know, what are the chances in your estimation of a trial here before the election?
I think the earliest possible date is June 2024. That has enough time to build in all the pretrial classified proceedings, if they go relatively smoothly, and if the government devotes a lot of resources to getting its piece done on time. It’s also after the GOP primary, and it’s after Trump’s May 2024 trial in New York. It's before the general election really gets ramped up.

But if Judge Cannon isn't interested in that, it's not gonna happen. Or if she makes adverse rulings that DOJ has to appeal, that delays things by a couple months. She's not going to hold a trial in September before the election. So if they thread the needle, it looks like June.

I kind of love that the outside world suddenly has this desperate need for your area of niche expertise. It’s like how we needed the world’s experts in deep-sea submersibles, and they had a moment. How's it been having the world crashing into your little corner of the courtroom?
It's a little surreal for sure. I'd love to go back to my 2012 self and say, hey, this statute that we and a handful of DOJ lawyers are experts in? Well, now a former president of the United States is gonna be charged with violating it, and by the way, that former president is Donald Trump. And suddenly the whole world is going to be talking about the Espionage Act and CIPA. Even within the government and national security world, they're considered obscure statutes.

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News de J’accuse

Fulton County, Georgia has two brand new grand juries, one of which is likely to charge a bunch of people–including Donald Trump–of illegally trying to overturn the 2020 presidential election.

The panels were selected Tuesday, in time for DA Fani Willis’s famous heads up that indictments are coming between July 31 and August 18 (right in the middle of Hot Indictment Summer!) Judge Robert McBurney, who presided over all the greatest hits from the special purpose grand jury, like Mark Meadows trying to avoid going under oath and juror Emily Kohrs mugging on primetime cable, told grand jurors they’d meet twice a week.

So, it’s on, and none too soon. Internet Lawyers™ are buzzing with rumors that Special Counsel Jack Smith could try to beat Willis to the punch and charge crimes in the federal Jan. 6 coup plot probe. Special Counsel prosecutors were in the building this week.

Their just deserts?

Arizona prosecutors are ramping up an investigation into effort’s to overturn the state’s 2020 election. Investigators have been contacting fake electors, election officials, and their lawyers. Stay, in the parlance of our times, tuned!

A price above Rudy

Meanwhile the two former Fulton County election workers Trump dragged into a hell of harassment after the 2020 election want a judge to impose “severe sanctions” on Rudy Giuliani. Shaye Moss and Ruby Freeman sued Giuliani for defamation after he helped spread lies about the two cheating with suitcases full of ballots and a mysterious thumb drive that turned out to be a ginger mint.

They’ve already been after Rudy for failing to produce documents for discovery. Now the pair are looking for a default judgment, telling federal Judge Beryl Howell that Giuliani has repeatedly failed to preserve or produce required evidence.

Waning Immunity

Donald Trump won’t have the federal government to hide behind any more in his suits for allegedly defaming writer E. Jean Carroll. DOJ reversed course this week and told a federal judge it no longer considers Trump’s statements about Carroll when he was in office part of his official presidential duties. That means legal immunity for federal employees against civil suits related to their official duties is gone.

Carroll already won a $5 million judgement against Trump for sexual abuse in New York stemming from her encounter with Trump in the 1990’s. For years she’s also had a federal defamation suit brewing stemming from the several times Trump denounced her while president. DOJ intervened and argued he was immune from the suit while doing official acts.

Now DOJ says new facts have come to light, including Trump’s CNN town hall appearance where he called Carroll a “wack job” and her story “fake.” That statement led Carroll to boost her sought damages to $10 million more, and to DOJ concluding that Trump continuing to disparage Carroll while not president means his disparagement while president wasn’t official.

Trump’s also countersuing Carroll for defamation for saying he “raped” her after the jury in her N.Y. case him civilly liable for sexually abusing her, but not for raping her.

What lies ahead

This week’s rulings blocking federal agencies from communicating with social media companies about disinformation on their platforms has experts and counterintelligence officials worried it could be a boon for foreign election interference.

Republican AGs suing the government shopped their suit to Trump-appointed federal judge in Louisiana they had a strong feeling would be sympathetic. They were right, and now that DOJ lost its effort to lift his injunction, it’s gutted years of efforts to alert companies when suspected foreign-bred disinfo is spreading online. The case is being appealed to the conservative Fifth Circuit.

Meanwhile, if preventing outright voter fraud is your thing, that’s harder too. For months we’ve been tracking GOP-led states leaving the bipartisan Electronic Registration Information Center, aka ERIC. Eight have now bailed mostly because of conspiracy theories, leaving big holes in states’ ability to track people who register to vote in more than one state.

Now states are scrambling to make up for a system that experts say was perfectly good to begin with. This is all while subverters are ramping up bogus information requests designed to overwhelm election workers and hamper a clean count in 2024.

Making Attorneys Get Arrears

What’s more Trumpy than stiffing your lawyers? Former presidential advisor and probable future federal inmate Steve Bannon was ordered by a New York judge to pay about half a million dollars in fees he owes to his lawyers.

Bannon’s attorneys in the Jan. 6 committee subpoena matter and his fraud and money laundering indictment in New York for the We Build the Wall scam sued the right-wing podcaster so they could get paid. New York Judge Arlene Bluth ordered Bannon to pay more than $480,000 plus the attorneys’ cost for having to sue him.

A man who assaulted police officers with a flagpole on Jan. 6 while out on bail for attempted murder was sentenced to more than three years in federal prison this week. Matthew Beddingfield, off North Carolina, pleaded guilty in January, 2023 to assault and obstruction. Online sleuths identified Beddingfield, who was also seen giving a Nazi salute during the attack on the Capitol.

A judge ordered the man who turned up near Barack Obama’s DC residence with weapons last month held until trial. Taylor Taranto went to Obama’s house after Donald Trump posted what he said was Obama’s address on Truth Social. He was arrested on four charges, and his van containing weapons and hundreds of rounds of ammunition was nearby.

The judge who issued the order said Taranto, a Navy veteran, had been “let down” while he tried to cope with PTSD. U.S. Magistrate Judge Zia Faruqui also questioned why the people influencing Taranto’s conspiratorial beliefs about a stolen election haven’t faced any consequences.

Former Broadway actor James Beeks was acquitted of the two Jan. 6-related charges against him, after representing himself in a federal bench trial. Beeks was charged with joining in on the Oath Keepers’ plans to storm the Capitol and disrupt the peaceful transfer of power. But several charges were dropped, leaving just civil disorder and conspiracy to obstruct an official proceeding charges. Beeks is just the second Jan. 6 defendant to be acquitted out of more than 1,000 charged.

“Give it a fucking rest, Jordan. I’m at the gym.” - Ariz. Gov. Katie Hobbs, to MAGA activist Jordan Conradson, while he followed her through a health club asking about election conspiracies.

Epps, I did it again — One of the most persistent and specific right-wing conspiracy theories about Jan. 6 involves a Trump-voting, Jan. 6-attending former Marine named Ray Epps. Tucker Carlson told stories about Epps fomenting the riot over and over again before he was fired from Fox. He’s still doing it on his (currently) waning Twitter show. Now Epps and his lawyers just sued Fox for defamation, with Dominion-like expectations of the potential damages.

Low down dirty shaman — Is “QAnon Shaman” and Jan. 6 convict Jacob Chansley having a real-life beef with antisemitic Internet person Nick Fuentes? Or are the two cagily hyping a far-right Arizona college Republicans event they’re both due to speak at come the end of the month? Honestly, who cares. But what mattered from this whole dumb thing is that three Arizona county GOP chapters, including Maricopa, were touted as sponsors to the event hosting one of the far-right’s most notorious neo-Nazis.

VICE News’ Tess Owens has the story. The GOPs of Maricopa, Pinal and Yavapai Counties deny they’re sponsoring the event. The claim was entirely plausible, given Ariz. GOP Rep. Paul Gosar’s repeated appearances with Fuentes. Stay tuned, if you dare.

Americans with disabilities act — Are voting restrictions and voter suppression efforts in GOP-controlled states alienating a huge block of American swing voters? Voters with disabilities were evenly split between Hillary Clinton and Donald Trump in 2016, but swing away from Trump in 2020. Some interesting new data suggests why.