The wheels of justice begin to turn.

August 29, 2023

          It took a while, but the momentum has finally shifted. To this point, Trump and co-conspirators simply ignored the law, believing that they would not be held accountable or that they would be pardoned if they were charged for their lawlessness. No more. In hearings, motions, and rulings in federal and state court, Trump and his co-conspirators were back on their heels, making outrageous arguments intended for political consumption only. Those arguments received the cool reception (or outright rejection) they deserved.

          The dust has not settled from the hearings on Monday, August 28, 2023. But the details matter less than this overarching fact: Whatever the outcome of the hearings and motions, Trump’s claims and defenses are being measured against the substantive laws and criminal procedure of the US. The number of “retweets” or “mentions” on Fox News is irrelevant to the success or failure of his motions and tantrums in court.

          For the first time in many years, the tables were turned on Trump and the laws were applied to Trump real time. At least as importantly, a seasoned judge applied mature judgment and common sense to arguments that were devoid of both. Although we should not over-interpret the outcome of any procedural skirmish, we should be grateful that rationality is once again reigning supreme. That is the most we can expect. The rest will be up to a jury of Trump's peers.

          As I am in the Sierras, I have limited access to news and internet service. But based on my limited ability to review the news, here are my takeaways for those who yearn for the return to the rule of law.

Hearing on trial date in the federal action against Trump for seeking to overturn the election.

          As all rational observers would have expected, Judge Tanya Chutkan rejected Trump's ludicrous proposal for a trial in April 2026. Instead, she set a perfectly rational trial date of March 4, 2024—giving Trump seven months to prepare for a four-count indictment involving a single defendant. That is the right result.

          More importantly, Judge Chutkan shut down Trump's attorney’s histrionics. See generally, TPM, Trump Lawyer’s Hysterical Plea For Two-Year Trial Delay Didn’t Work On Chutkan. According to reports, Trump attorney John Lauro alternately shouted and feigned tears in his desperate efforts to avoid a trial before the 2024 election. In his desperation, he began listing grounds for appeal—which presumes that Trump will be convicted!

          Lauro argued that the special counsel is engaged in selective prosecution and/or retaliation against Trump for his attacks on President Biden’s son. Lauro argued (preemptively) that his inability to be prepared for trial in March 2024 amounts to ineffective assistance of counsel. (That is a novel argument to make in advance, to say the least; I hope Lauro notified his malpractice carrier after the hearing.) Lauro also claimed that the case should be dismissed on grounds of presidential immunity. The TPM article (linked above) provides a good sense of Lauro’s desperation.

          A criminal defendant who believes he will be acquitted does not engage in the histrionics employed by Lauro before Judge Chutkan. Trump is preparing the ground for his attack on the legitimacy of his conviction, just as he began claiming the 2020 election was “rigged” before election day. But unlike efforts to overturn the election in 2020, Trump cannot tamper with the count of the jurors’ ballots. He is in a world that he does not control.

          Judge Chutkan immediately issued a comprehensive pretrial order that set dates for motions, exchange of exhibits, designation of experts, and witness lists. See Order Setting Deadlines/Hearings 1:23-cr-00257.

          Trump immediately melted down on his vanity social media platform, saying that he would appeal the order setting a trial date. (The order that is not “appealable” as such, but is subject to an extraordinary writ—something that is rarely granted and that will not slow down the progress toward trial.) But Trump also called special counsel “Deranged” and referred to Smith’s staff as “Thugs,” and to Judge Chutkan as “a biased, Trump-hating judge.”

          If any other criminal defendant had posted such a rant against the prosecutor and trial judge, they would be held in contempt and have conditions imposed on their pre-trial release. I continue to believe that Trump will have his pre-trial release revoked or be severely limited in his ability to use social media.

 Mark Meadows testifies at hearing on removal petition.

          In a move that surprised everyone, Mark Meadows testified in the evidentiary hearing on his petition to remove the Georgia criminal charges to federal court. Meadows testified for more than four hours and attempted to paint himself as a gatekeeper. That claim was undermined by his participation in the telephone call to Georgia Secretary of State Brad Raffensperger in which Meadows argued that Raffensperger should “find” more votes. Indeed, to the extent that federal Judge Steve Jones exhibited any reaction during the hearing, it was to express skepticism of Meadows’ characterization of that meeting. See WaPo, Mark Meadows, former Trump chief of staff, testifies in Georgia. (This article is accessible to all.)

          Whether Meadows’ surprise strategy was wise remains to be seen. And the wisdom of that choice will not be determined by whether Meadows succeeds in his motion to remove the Georgia charges against him to federal court. Instead, the test will be whether he said anything during his testimony that will undermine his defense against the criminal charges. The brief descriptions available thus far suggest that he did subject himself to impeachment and rebuttal by other witnesses. That will hurt his credibility before the jury finally hears his case.

          Meadows made a choice that will forever be used against him in every hearing and trial in which he appears for the rest of his life. If he failed in quashing the charges against him in Georgia—and it appears he did not—it was a mistake for him to testify. Even if the case is removed to federal court, his words today will be read to the federal jury at trial—whether he wants the jury to hear those words or not.

John Eastman’s disbarment proceeding continues.

          John Eastman has argued that his disbarment proceeding should be “abated” because he has been indicted in Georgia and will seek to invoke his 5th Amendment right against self-incrimination. The judge presiding over the proceeding has refused (so far) to above the proceeding. On Monday, the judge heard testimony from the state’s expert witness, who systematically dismantled John Eastman’s memo claiming that V.P. Mike Pence could reject or delay the count of electors. See ABC News, John Eastman disbarment hearing: Election expert disputes Eastman’s famous Jan. 6 memo.

          Eastman has been defending his coup memo as “zealous advocacy.” But the state’s expert, Matthew Seligman, a lawyer and Stanford expert on elections, testified (in part) as follows:

“There is no historical precedent” where the President of the Senate can postpone the electoral count.

Seligman said that the historical incidents Eastman refers to in his memo titled “January 6 scenario” are not examples of a Vice President being able to take “unilateral action” to reject state electors and delay Congress’ count of Electoral College votes.

“Has there ever been a time a vice president has delayed a count for any reason?” [the state prosecutor] asked.

“No,” Seligman responded.

Seligman added that he reviewed the count of electoral votes from every election in U.S. history and said that there’s no evidence to support Eastman's argument that the vice president can choose which electors to accept and reject or resolve disputes.

“No vice president in American History has ever rejected a single slate of electors,” Seligman said.

          So, while Eastman spewed his nonsense from the Ellipse moments before the mob attacked the Capitol, he is now in a legal proceeding governed by the rules of evidence and legal precedent. In other words, it was a bad day for Eastman. Indeed, any day on which Eastman must account for his conduct before a judge is a bad day for Eastman.

Concluding Thoughts.

          There is more, but I am running out of daylight. A day like Monday can make up for years of frustration as we waited for the wheels of justice to begin to turn. Today, the wheels turned ever so slightly. For most Americans, it was a return to normal. For Trump, it was an earthquake of immense proportions. And it is just beginning.

          Talk to you tomorrow!