The Weekly Sift

Simply following the news is teaching the public more about law
than most of us ever wanted to know.

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Star Wars movies are famous for building up to climaxes with three centers of simultaneous action. The decisive scenes of Return of the Jedi, for example, jump from the battle on the Planet Endor to the raid on the second Death Star to the Luke/Vader/Emperor showdown. Maintaining three centers of narrative action, it seems, optimizes something having to do with human attention: The tension builds as focus shifts from one center to the next, and viewers can keep track of all three without saying “Oh, I forgot about him” or “Where are we now?”

Sadly, though, the Trump trials have now gone well past the Lucas point, and have reached the you-can’t-tell-the-players-without-a-program stage.

This week’s run-down. Currently, four Trump indictments are pending in four different jurisdictions, two state and two federal. In New York and D.C., he is indicted by himself. In Florida he has two indicted co-conspirators, and in Georgia he has 18. The total number of counts is just under a hundred.

Worse than the sheer number of venues, defendants, and charges, the action in each jurisdiction has a way of spreading: This week, for example, the most significant developments in the Fulton County indictment were happening in federal rather than state court, and Fulton County DA Fani Willis was fending off attempted interference from Republicans in Congress. We also found out the names of 30 conspirators Willis decided not to indict, in spite of the recommendations of the special grand jury.

Two of the 19 Fulton County RICO defendants filed for a speedy trial, but neither wanted to share a trial with the other. The judge had good news and bad news for them: Your trial starts October 23, but you’re each stuck sitting next to that other loser.

In addition to the criminal cases, there are civil lawsuits. The NY attorney general’s $250 million fraud lawsuit against the Trump Organization will go to trial on October 2, assuming neither side gets the summary judgment it’s asking for. And Wednesday, E. Jean Carroll won a second defamation decision against Trump: The judge ruled that since the statements in question were so similar to ones a jury already had found defamatory, no trial was needed, other than to establish damages. Trump is already on the hook for $5 million pending appeal, and his mouth is still running.

And lest we forget: There is the open legal question of whether Trump is even eligible to be president again, given the disqualification clause of the 14th Amendment.

Then there are the criminal cases of related defendants: The trials of the January 6 rioters are not quite done yet. Tuesday, Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison for his role in planning the assault on the Capitol. Commenters on the Fox News article about the sentence were incensed: “22 years and he wasn’t even there”. But if you plan a crime and recruit people to carry it out, you don’t have to be there. You could be, say, watching TV at a White House dining table and still be guilty.

And John Eastman may be a Fulton County RICO defendant, but he also had to testify at his disbarment hearing in California this week. He “doesn’t recall” making statements that Vice President Pence’s chief of staff has testified under oath that he made.

Oh, and Peter Navarro — I really had forgotten about him — was found guilty of contempt of Congress. Remember? He blew off subpoenas from the House select committee investigating January 6. (Remember them?) It turns out that ignoring subpoenas can get you into trouble. Who knew? Navarro certainly seemed shocked to discover that “Trump told me to” isn’t a universally recognized defense, particularly if Trump didn’t put those instructions in writing.

Steve Bannon (another blast from the past) was convicted of the same charge last summer and sentenced to four months. But he’s still out pending an appeal that will be heard in October. His fraud trial (for misappropriating money raised to build Trump’s wall) is scheduled for next May.

Got all that?

Federal removal law. The upside of this complexity is that (if you manage to keep paying attention) you’re getting an excellent layman’s education in law. This week’s best lesson was US District Judge Steve Jones’ ruling that denied Mark Meadows motion to move his RICO case from Georgia state court to federal court. His decision didn’t just say no; it gave an very clear explanation of the federal removal statute, what it’s for, and how it functions.

The point of the law is to keep states from interfering with federal officers enforcing federal law. For example, occasionally you’ll hear talk among Second Amendment enthusiasts about how local sheriffs should arrest federal officials who show up trying to enforce federal gun laws. If state courts then heard those cases, local police and judges could work together to effectively screw up federal law enforcement.

So instead, any federal official who gets arrested in the course of carrying out his or her duties can get the case moved to federal court. (That’s what Meadows was trying to do, and what Trump would undoubtedly try to do if Meadows succeeded.) On the other hand, just being a federal official isn’t enough. If, say, an FBI agent gets arrested for robbing a bank, his case is no different from anybody else’s.

If you keep that pair of examples in mind, the law makes perfect sense.

So Meadows had to argue that his case was more like the ATF agent than like the bank robber. In other words, Fani Willis had indicted him for carrying out his duties as White House chief of staff. And that was not a completely crazy argument, because some of the specific actions alleged in the indictment are Meadows arranging phone calls and sitting in on meetings, as any White House chief of staff would do.

But Meadows’ problem, as Jones points out, is that that acts cited in the indictment are not the crimes he’s been charged with. The crime is participating in a conspiracy to change the results of Georgia’s 2020 presidential election. The specific actions cited in the indictment simply illustrate that involvement.

So the relevant question is whether White House chiefs of staff have a legitimate role to play in overseeing how states count their votes and allocate their electors. If so, then Meadows (and Trump) might have been playing that role when, say, they pressured Brad Raffensperger to “find” more votes for Trump. It would then be up to a federal court to decide whether Meadows had been carrying out those duties within the law.

But Jones ruled that Meadow had no legitimate role to play as chief of staff: Running elections is a state matter. And under the Constitution, any federal oversight role belongs to Congress, not the president or his staff.

Jones’ ruling has two important consequences:

• If removal had been granted, Meadows’ had already filed a motion to dismiss the charges, for basically the same reason: He was simply carrying out his federal duties. That motion is now moot.
• While the judge explicitly wrote that he was not prejudging the claims of any other defendants (like Trump), the logic of his argument will be hard to overcome: Trump and all of his co-conspirators were meddling in something that was none of the president’s official business. None of them have a good argument for moving to federal court or having the charges dismissed.

Willis v Jordan. I think Jim Jordan was trying to intimidate Fani Willis, but it doesn’t seem to have worked. On August 24, Jordan wrote a letter to Willis under the House Judiciary Committee letterhead, saying:

Congress may probe whether former Presidents are being subjected to politically motivated state investigations and prosecutions due to the policies they advanced as President, and, if so, what legislative remedies may be appropriate.

After mentioning his subcommittee’s subpoena power, he demanded she produce by September 7 (Thursday) documents related to her investigation of former president Trump, and especially any communications with Jack Smith or other federal officials.

On Thursday, Willis responded with none of the requested documents, but a letter of her own.

Your letter makes clear that you lack a basic understanding of the law, its practice, and the ethical obligations of attorneys generally and prosecutors specifically.

She goes on to school Jordan, explaining (with detailed legal references) all the reasons that his demands are unconstitutional: They cross the line between state and federal sovereignty, as well as the line separating legislative and executive functions. They interfere with the administration of criminal justice, and violate the form of executive privilege that protects a prosecutor’s deliberative process.

Given all that, she could in good conscience ignore the arguments Jordan made.

While settled constitutional law clearly permits me to ignore your unjustified and illegal intrusion into an open state criminal prosecution, I will take a moment to voluntarily respond to parts of your letter.

Her main piece of advice is that Jordan learn to “deal with reality”, in particular the reality that Donald Trump is a citizen with no special rights.

Here is another reality you must face: Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia. In this jurisdiction, every person is subject to the same laws and the same process, because every person is entitled to the same dignity and is held to the same standard of responsibility. Persons’ socioeconomic status, race, gender, sexual orientation, or political prominence does not entitle them to an exemption from that basic standard.

She schools Jordan on how Trump’s rights are properly defended.

[O]bjections to a criminal investigation or prosecution are properly raised—at least in the first instance—at courts with lawful jurisdiction, not through partisan legislative inquiries. The courts in the State of Georgia are fully up to the task of adjudicating the rights of all parties at issue.

Finally, in response to his implicit threats to any federal funding her office receives, she concludes with a series of suggestions for useful work Jordan’s committee might do, such as increasing federal funding for worthwhile purposes like paying witness advocates, processing rape kits, helping at-risk children avoid the criminal justice system, and upgrading state crime labs generally.

The lesson I draw from this exchange is that if you want to mess with Fani Willis, you’d better be a lot sharper than Jim Jordan.

Does the 14th Amendment disqualify Trump? This idea has been rattling around for a few weeks now, and was explained in some detail by J. Michael Luttig and Lawrence Tribe in the August Atlantic. (And in a lot of detail by a law journal article I haven’t read.) But it’s mostly been theoretical until Tuesday, when Citizens for Responsibility and Ethics in Washington (a real organization that’s been around for a while, not something put together for this purpose) filed a lawsuit in Colorado. The suit seeks an injunction forcing the Colorado Secretary of State to leave Trump’s name off the state’s Republican primary ballot, for reasons that would also apply to a general election ballot.

Presumably, this case will work its way up through the Colorado state courts and will eventually be appealed to the Supreme Court, whose ruling would then apply to all states.

Truthfully, I had never paid much attention to the 14th Amendment‘s third section. The first section is one of the most quoted parts of the Constitution: It guarantees citizenship to anyone born in the United States, as well as “due process of law” and “equal protection of the laws”. Courts are constantly arguing about precisely what those phrases mean.

But Section 3? Not so much. Here’s what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Just about everybody’s initial reaction to this is that Trump would have to be convicted of some crime relating to “insurrection or rebellion” before he’d be disqualified from being president again. And since an conviction is unlikely to become final before the 2024 election, Section 3 wouldn’t apply.

But Luttig and Tribe point out that qualifications don’t work that way. No one has a right to be president, so this isn’t a matter of taking Trump’s rights away. So the criminal proof-beyond-reasonable-doubt standard shouldn’t apply.

Instead, it’s up to the individual states to determine how their presidential electors will be chosen and what candidates are qualified to receive their votes. If a secretary of state in a place like Colorado determines that Trump is ineligible to be president because he supported an insurrection, that’s no different than determining that a candidate isn’t 35 years old or hasn’t already served two terms. The question is about the fact of insurrection, not whether or not there’s been a conviction.

Now, Section 3 has never been tested, so no one knows precisely what phrases like “insurrection or rebellion” or “aid and comfort to the enemies” should mean in practice. So somebody’s going to have to hold some evidentiary hearings, and then the courts will have to make some interpretations. Somebody will have to have the last word, and that will probably be the Supreme Court.

Another objection is to say “let the voters decide”. But if that’s how we do things, why are there constitutional qualifications at all? What if the voters want to elect an 18-year-old president? Or give Obama a third term? For constitutional qualifications to mean anything at all, they have to supersede what the voters want.

Whether disqualifying Trump is politically wise is another question entirely. But legally that’s beside the point. It may not always be politically wise to protect an unpopular religion’s freedom to worship, or to enforce many of the other rights our Constitution guarantees. The point of having a constitution is that some principles have to override the politics of the moment.

Personally, I don’t have a dog in this fight. What I’d really like to see is for Trump to be rejected by the voters, either in the primaries or in the general election. If he’s allowed to run, I think that will happen, current polls notwithstanding. But disqualification is a serious question, and our legal system owes the country a serious answer.