The coming week in perspective.

August 27, 2023

          We are entering a week filled with hearings and motions in Trump's criminal trials. Focusing on longer-term realities can provide a framework for processing the wave of procedural complexities about to wash over us. If we know how things fit into the big picture, we are less likely to stress out over minor surprises. Although it is tough to make predictions—especially about the future—we can be reasonably confident of the following:

• Donald Trump will stand trial for federal and state crimes.

• At least one of those trials will commence before the 2024 presidential election.

• Trump will be convicted of at least one federal felony.

• Trump will be convicted of at least one state felony that cannot be pardoned.

• Some of Trump's co-defendants will plead guilty and testify against him.

• Trump will be sentenced to prison (although where he “serves” his prison sentence is unclear).

          The above are the most likely, reasonable, and expected outcomes. It’s possible that one or more may not come true, but for purposes of planning your life and setting your expectations, they are a good guide.

          Within those broad parameters, there is plenty of room for surprise. The Georgia charges against Trump could be removed and tried in federal court. If a Republican is elected as president in 2024, Trump might receive a pardon for his federal conviction(s). Juries might not be able to reach unanimous verdicts on all charges against Trump or his co-defendants. Judge Aileen Cannon might rule that Donald Trump is immune to the laws of gravity and the US criminal code.

          So, with the big picture in mind, there are several hearings set for this week and other developments worth noting. I raise them not to obsess about detail or predict outcomes, but to help you manage the breathless reporting that will undoubtedly accompany early procedural skirmishes.

On Monday

          There will be a hearing on Mark Meadows’ petition to remove the Georgia claims against him to federal court. Federal Judge Steve Jones will preside over an evidentiary hearing in which Meadows must prove that the claims against him relate to conduct undertaken during the course and scope of his duties as a federal officer. As noted in an analysis by UT Professor Lee Kovarsky, Meadows faces a low bar in seeking removal, but has weak arguments. See Lawfare, Removal in the Georgia Prosecution: A Low Bar but Weak Arguments.  

          While Professor Kovarsky acknowledges that Meadows has a “non-trivial” chance of succeeding on his removal petition, Kovarsky believes Meadows will fail because of arguments made by D.A. Fani Willis. In opposing the removal, “Willis responds, persuasively, that Meadows could not have been acting under color of his office because the indicted conduct was political activity that violated the Hatch Act.”

          Moreover, the hearing on Monday will be “evidentiary.” Meadows must provide Judge Jones with admissible evidence that he was acting in his federal capacity when he committed the alleged crimes. D.A. Fani Willis plans to call Georgia Secretary of State Brad Raffensperger to prove that Meadows was engaged in “political” activity that violated the Hatch Act. ABC News, DA subpoenas Brad Raffensperger for Meadows hearing next week. What evidence will Mark Meadows produce? Will he testify? Who will appear on his behalf to authenticate evidence?

          But, as I noted last week, even if the case is removed to federal court, that will not end the Georgia prosecution. As Kovarsky notes,

[R]emoval changes the court system in which a case is tried, but it does not change the substantive law used to decide who wins. Whether the trial is in a Georgia court or in a federal one, the prosecution will seek to prove—and the jury will decide liability for—offenses under Georgia law.

For example, the broader Georgia Racketeer Influenced and Corrupt Organizations (RICO) statute applies, not its narrower federal counterpart.

And because any conviction will be for a Georgia crime, the president does not have power to pardon, commute, or reprieve the sentence.

Also on Monday.

          In the DC-based federal indictment of Trump for attempting to overturn the 2020 election, Judge Tanya Chutkan will hold a scheduling conference to set the trial date. Jack Smith has proposed that trial commence on January 2, 2024, while Trump has proposed that the trial commence on “Eleventy-never of 20mumblesomething or When Hell freezes over, whichever is later.”  

          Okay, okay, I jest. In fact, Trump has proposed a trial date of “April, 2026 so I can pardon myself before trial starts.”

          It would not be unusual for a federal judge to set a trial date more than a year after the first appearance. But here, two factors suggest an earlier trial date. First, Jack Smith has invoked the public’s right to a speedy trial, which Judge Chutkan must consider. Second, Judge Chutkan has already tied the trial date to Trump's willingness to refrain from spoiling the jury pool and attacking witnesses—conduct that he engaged in immediately after being warned by Judge Chutkan’s magistrate not to do so.

Also on Monday.

          Attorney Ken Cheseboro sought to gain an advantage by asking for a speedy trial date. He undoubtedly hoped to be tried by himself, minimize the chances of finger-pointing and association with other bad actors—like Sidney Powell and Rudy Giuliani. Moving for a speedy trial was a dubious proposition to begin with. See Dennis Aftergut, Verdict, Georgia Defendant Kenneth Chesebro Got His Speedy Trial Date; He May Soon Lament Not Being Careful About What He Wished For.  

As Aftergut notes, “a simple trial involving one or a few defendants creates the possibility of an early conviction. That can have a domino effect on other defendants who have waited to see whether to plead guilty and cooperate.”

          But whatever advantage Cheseboro sought by demanding an early (solo) trial is evaporating as his co-defendants begin also demand a speedy trial. Sidney Powell has now demanded a speedy trial—probably the last person that Cheseboro wants to be tried with. See Demand for a Speedy Trial Sidney Powell (fultonclerk.org). If other defendants make such demands, Cheseboro should withdraw his demand (if he knows what is good for himself)!

The reality of a speedy trial can immediately flush out the less culpable witnesses who see an opportunity to get the best cooperation “deals.” Pleas with cooperation agreements both compress the number of defendants to try going forward and expand the prosecutors’ evidentiary arsenal against the higher-ups.

The Jacksonville, Florida murders of three Black customers in Dollar General Store.

          On Saturday, a gunman attempted to enter Florida’s oldest historically Black university—Edward Waters University. When he was turned away from the EWU campus, he went to a Dollar General Store in Jacksonville, Florida, and killed three Black customers. He carefully choreographed the murders to ensure that we would know they were hate crimes directed against the Black population in Florida—a state that has been engaged in a culture war against its Black citizens at the urging of Ron DeSantis.

          There is much to unpack in this latest hate crime in Florida. Juliette Kayyem provides the details and analysis in The Atlantic, The Jacksonville Killer Wanted Everyone to Know His Message of Hate. Her article is behind a paywall, but if you have access to The Atlantic, Kayyem’s article is a compelling and disturbing read. She writes, in part,

Much is already known about the gunman who killed three Black customers at a Dollar General shop in Jacksonville, Florida, yesterday. He was in possession of an AR-15-style weapon and a handgun; he left manifestos about his hatred toward African Americans; he was wearing a tactical-style uniform as if going to war.

[The gunman’s] actions yesterday were not just a hate crime. They were a performance for all the world to see. This is the age of mass shooting as production. And we misunderstand what is happening if we see this as a play with only one act at a time.

[The shooting] occurred on the 60th anniversary of Martin Luther King’s “I Have a Dream” speech at the civil-rights March on Washington for Jobs and Freedom. Whether the killer knew this doesn’t really matter. African Americans do.

          It does not matter whether we can draw a straight line between the killings and DeSantis’s hostility toward Black Floridians, it is enough that he signed a bill allowing permitless carry of handguns and several bills prohibiting the teaching of Black history. DeSantis has created an atmosphere of fear and hate that inevitably encourages deranged people like the Jacksonville killer to act on their delusions. DeSantis’s animosity toward Black Americans is objectively immoral. But it is also singularly disqualifying in his bid for the presidency.

          We must do something to stop the carnage and hate. There are many different approaches to stopping gun violence—and we must pursue them all. Thom Hartmann published an essay over the weekend that gave me hope that some solutions are not far from hand. See The Hartmann Report, Well-Regulated Smart Guns Are Here. As Hartmann explains, several technology solutions are fully operational and ready for deployment. Solutions include fingerprint technology to unlock guns and serial imprints on bullets inscribed by the firing pin upon discharge. None of these solutions would stop killers like the Jacksonville neo-Nazi, but they would undoubtedly stop other gun deaths. We must start somewhere.

Concluding Thoughts.

          This weekend was the 60th anniversary of Dr. Martin Luther King, Jr.’s “I Have a Dream” speech on the National Mall in Washington, DC. Several readers texted/emailed from the anniversary march with pictures of themselves and their friends in front of the Lincoln Memorial. Thank you for the pictures and thank you for attending the anniversary march! Your participation was meaningful and important!

          It is easy to focus on the reactionary trends in Florida and other “Old South” states and feel a sense of despair. But on the 60th anniversary of MLK’s speech, we must recognize the huge progress that has occurred since 1963—in large part because of the sacrifice of civil rights advocates who worked before and after MLK’s speech. We owe them a debt of gratitude that can only be discharged by our participation in the ongoing work of redeeming democracy. Let’s do our part—so that 60 years hence, future generations will be honoring our work as we honor MLK’s work today.

          I am in the mountains working on my cabin to prepare it for an expected heavy winter, so apologies for the lack of audio and any errors.

          I will be back in civilization on Tuesday.

          Talk to you tomorrow!