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Trump's Present and Future possible indictments
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Part 1
Tonight we focus on two very different issues that will substantially impact the prosecutions against Donald Trump in Florida and in Georgia. There is no set timeline on the first issue. It involves whether the district court in the Mar-a-Lago case will hold a Garcia hearing—which involves whether lawyers have conflicts of interest that could prevent them from representing a client, or at least require the client to make a knowing waiver of his rights if the lawyer is going to continue. The second of the two, the removal issue in the Georgia state prosecution, is on a fast track for a decision by the 11th Circuit Court of Appeals. In Georgia, both the state court and the federal court are moving at rapid speed, while in Florida, Judge Cannon seems to be unnecessarily dragging her feet.
Florida and Classified Documents: I am still a doubter when it comes to Judge Cannon. The Garcia issue is one of the reasons. The government filed its original motion back on August 2, 2023, advising the court that it had learned information giving rise to concerns there could be a conflict of interest with Walt Nauta’s attorney, because of other clients he represented. Prosecutors asked the court to hold a hearing to determine the extent of the conflict.
Subsequently, a similar motion was filed to include De Oliveira.
The defendants’ lawyers were permitted to respond. The Special Counsel filed his final reply brief in support of the request for Garcia hearings on September 6, a week ago. So far, there’s nothing on the court’s docket reflecting any consideration of the issue or action on the request by Judge Cannon. She has not set a hearing.
That’s in stark contrast to what she was quick to do after the government filed its initial motion. Five days later, on August 7, she entered an order denying a fairly routine motion by the Special Counsel to file some material in connection with its request for a Garcia hearing under seal (out of public view). After directing Nauta to respond to the Garcia hearing request, Judge Cannon wrote, “Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” She told Trump and De Oliveira that they weren’t required to, but that if they wished, they too could brief the grand jury issue that she had raised.
Initially, this portion of her order caused a lot of confusion. What out-of-district grand jury was she talking about? It’s now clear that a fourth individual involved in the Mar-a-Lago case who is now a witness, IT worker Yuscil Taveras, was being scrutinized by a grand jury in the District of Columbia. We now know that the upshot of that was that the judge in charge of the grand jury there directed that Taveras, who like Nauta and De Oliveira had a lawyer with an association with the Trump camp, be permitted to consult with a neutral lawyer, a public defender. After doing that, Taveras, who had been told he might be indicted on obstruction charges, flipped and began to cooperate with the government. It was his cooperation that led to the superseding indictment in the classified documents case that added more obstruction charges and named De Oliveira as a defendant.
The situation with Yuscil Taveras helps to make out the case for, at a minimum, holding a hearing to learn more about the conflicts that Nauta and De Oliveira’s lawyers may have, if not having those defendants consult with a neutral lawyer about their situation, as Taveras did. The longer the question goes unanswered, the more potential compromise of those defendants’ rights may occur. But Judge Cannon seems more concerned about the request for a Garcia hearing and the use of a grand jury by prosecutors that appears to be unobjectionable than she is about a potential conflict of interest, which needs to be resolved on the record.
There is no reason for Judge Cannon’s delay. The conflict issue needs to be resolved, once raised. Taveras offers evidence of obstruction of justice against both Nauta and De Oliveira. Might they decide to cooperate against Trump if a lawyer lays it out to them straight? Tick tock.
Fulton County, Georgia: Mark Meadows is consuming a lot of oxygen in the Georgia case with his attempt to remove the prosecution from state court to federal court. Having lost in federal district court, he is now appealing to the 11th Circuit. His opening salvo was to file a motion to stay anything further from happening pending the outcome of his appeal. Oral argument on Meadows’ motion for an emergency stay pending the outcome of the appeal will take place this Friday at 10:15a.m. on Zoom. You can access it here.
The panel that will hear the motion includes a Clinton appointee, Judge Charles Wilson, and two Obama appointees, Judge Adalberto Jordan and Judge Robin Rosenbaum. Panels are randomly assigned in this Circuit, but expect to hear some sort of conspiracy theory in this one from MAGA world. There’s no basis for it. This panel is assigned to hear this preliminary motion only.
This is the 11th Circuit’s internal operating procedure that governs how judges are assigned to motions panels. You can see that they are predetermined. There was no manipulation here that resulted in the selection of three judges appointed by Democrats—in fact, that would defy belief as the chief judge, Bill Pryor, is a conservative Republican.
This is not the panel that will hear the appeal itself. Those panels are also randomly set far in advance.
joycevance.substack.com
Tonight we focus on two very different issues that will substantially impact the prosecutions against Donald Trump in Florida and in Georgia. There is no set timeline on the first issue. It involves whether the district court in the Mar-a-Lago case will hold a Garcia hearing—which involves whether lawyers have conflicts of interest that could prevent them from representing a client, or at least require the client to make a knowing waiver of his rights if the lawyer is going to continue. The second of the two, the removal issue in the Georgia state prosecution, is on a fast track for a decision by the 11th Circuit Court of Appeals. In Georgia, both the state court and the federal court are moving at rapid speed, while in Florida, Judge Cannon seems to be unnecessarily dragging her feet.
Florida and Classified Documents: I am still a doubter when it comes to Judge Cannon. The Garcia issue is one of the reasons. The government filed its original motion back on August 2, 2023, advising the court that it had learned information giving rise to concerns there could be a conflict of interest with Walt Nauta’s attorney, because of other clients he represented. Prosecutors asked the court to hold a hearing to determine the extent of the conflict.
Subsequently, a similar motion was filed to include De Oliveira.
The defendants’ lawyers were permitted to respond. The Special Counsel filed his final reply brief in support of the request for Garcia hearings on September 6, a week ago. So far, there’s nothing on the court’s docket reflecting any consideration of the issue or action on the request by Judge Cannon. She has not set a hearing.
That’s in stark contrast to what she was quick to do after the government filed its initial motion. Five days later, on August 7, she entered an order denying a fairly routine motion by the Special Counsel to file some material in connection with its request for a Garcia hearing under seal (out of public view). After directing Nauta to respond to the Garcia hearing request, Judge Cannon wrote, “Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.” She told Trump and De Oliveira that they weren’t required to, but that if they wished, they too could brief the grand jury issue that she had raised.
Initially, this portion of her order caused a lot of confusion. What out-of-district grand jury was she talking about? It’s now clear that a fourth individual involved in the Mar-a-Lago case who is now a witness, IT worker Yuscil Taveras, was being scrutinized by a grand jury in the District of Columbia. We now know that the upshot of that was that the judge in charge of the grand jury there directed that Taveras, who like Nauta and De Oliveira had a lawyer with an association with the Trump camp, be permitted to consult with a neutral lawyer, a public defender. After doing that, Taveras, who had been told he might be indicted on obstruction charges, flipped and began to cooperate with the government. It was his cooperation that led to the superseding indictment in the classified documents case that added more obstruction charges and named De Oliveira as a defendant.
The situation with Yuscil Taveras helps to make out the case for, at a minimum, holding a hearing to learn more about the conflicts that Nauta and De Oliveira’s lawyers may have, if not having those defendants consult with a neutral lawyer about their situation, as Taveras did. The longer the question goes unanswered, the more potential compromise of those defendants’ rights may occur. But Judge Cannon seems more concerned about the request for a Garcia hearing and the use of a grand jury by prosecutors that appears to be unobjectionable than she is about a potential conflict of interest, which needs to be resolved on the record.
There is no reason for Judge Cannon’s delay. The conflict issue needs to be resolved, once raised. Taveras offers evidence of obstruction of justice against both Nauta and De Oliveira. Might they decide to cooperate against Trump if a lawyer lays it out to them straight? Tick tock.
Fulton County, Georgia: Mark Meadows is consuming a lot of oxygen in the Georgia case with his attempt to remove the prosecution from state court to federal court. Having lost in federal district court, he is now appealing to the 11th Circuit. His opening salvo was to file a motion to stay anything further from happening pending the outcome of his appeal. Oral argument on Meadows’ motion for an emergency stay pending the outcome of the appeal will take place this Friday at 10:15a.m. on Zoom. You can access it here.
The panel that will hear the motion includes a Clinton appointee, Judge Charles Wilson, and two Obama appointees, Judge Adalberto Jordan and Judge Robin Rosenbaum. Panels are randomly assigned in this Circuit, but expect to hear some sort of conspiracy theory in this one from MAGA world. There’s no basis for it. This panel is assigned to hear this preliminary motion only.
This is the 11th Circuit’s internal operating procedure that governs how judges are assigned to motions panels. You can see that they are predetermined. There was no manipulation here that resulted in the selection of three judges appointed by Democrats—in fact, that would defy belief as the chief judge, Bill Pryor, is a conservative Republican.
This is not the panel that will hear the appeal itself. Those panels are also randomly set far in advance.
The Tortoise and the Hare of Criminal Cases
Tonight we focus on two very different issues that will substantially impact the prosecutions against Donald Trump in Florida and in Georgia. There is no set timeline on the first issue. It involves whether the district court in the Mar-a-Lago case will hold a
joycevance.substack.com
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Part 2
The court also asked the parties to submit briefs on whether the removal provision applies to a former federal official. Predictably, the Fulton County DA says it does not. The argument is based on the text of the statute, which does not refer to former officials. Willis argues that under standard rules of statutory construction, this means it should not apply to them. This is not a bad argument and strict textualists would make the argument that if Congress had meant for the law to apply to former officials, it could have said so, as it did in another section of the statute.
While this argument is appealing in a technical sense, Meadows may have the better part of the argument here. He traces the development of the statute and points out numerous reasons Congress intended to include former officials. The law is meant to prevent a state from interfering with the functioning of the federal government, and it makes sense that if federal officials must fear prosecution after they leave office, there is a real interference factor. Moreover, numerous cases have involved removal of former officials, and no court has ever stopped them. But the bottom line here is that there is little law directly on point, and it will be up to the panel.
Because this can get confusing, a little recap here may be helpful: this issue is about whether the case can be removed to federal court. If the panel decides the law doesn’t make removal an option for former officials, then Meadows’ efforts here are at an end. But here’s the problem: if this argument about former officials is the only basis for a decision by the 11th Circuit that Meadows can’t remove his case, any convictions would be very vulnerable on appeal, if the Supreme Court saw this issue the other way. If the Supreme Court were to decide the 11th Circuit got the removal issue wrong, they would order a new trial, in federal court, and it would be all kinds of messy in terms of jeopardy, and the fate of other defendants. No one wants to see this case go there. So, it will be important for the court, as the panel likely well knows, to base its decision on more than one rationale. If it buys Willis’ former official argument, so be it, but the stronger argument that Meadows cannot remove his case is the argument we’ve been discussing for what seems like weeks now, that Meadows isn’t entitled to remove to federal court because he was acting beyond the scope of his official position.
All of that is for just the issues that have come up in the context of Meadows’ motion for an emergency stay—that’s the warm up for the substantive appeal over whether the case should be removed to federal court. The substantive argument about the removal petition has been set on a separate, but expedited, briefing schedule. Meadows’ brief arguing for removal is due Monday. The DA’s brief is due a week later. Meadows will have three additional days to reply. Once the briefs are in, the court can decide the removal issue at any time. It could also decide to schedule oral argument before it makes its decision. Although the 11th Circuit hears argument in a lower percentage of cases that most circuits, it does tend to hear argument in “significant” cases, and any one judge can designate a case for argument.
The removal issue is important for Meadows, but it could also have additional significance, because it is unclear whether a successful petition to remove a case by one defendant means all of the defendants’ cases are removed to federal court. So yes, this is a picayune legal issue, but also one that could have tremendous significance for the outcome of the Georgia prosecution.
In any event, the entire case will be cleaner once the removal issue is no longer in play. Judge McAfee, back in state court, will be free to set up his schedule for which defendants get tried together and when and get to work on pretrial motions. He has a hearing on some of them scheduled on Thursday for the October trial defendants, but there are going to be a lot more of them.
Courts move at different speeds. There are lots of moving parts that aren’t always obvious. But it’s hard to miss the contrast between how speedily the Georgia case is moving and the absence of any movement on the Garcia issue in Florida. It’s fascinating that, at least for now, the 11th Circuit will have the final say over how the trial courts conduct themselves on these issues. The 11th Circuit has set itself a far more rigorous schedule that the one Judge Cannon is following. She might do well to take note.
joycevance.substack.com
The court also asked the parties to submit briefs on whether the removal provision applies to a former federal official. Predictably, the Fulton County DA says it does not. The argument is based on the text of the statute, which does not refer to former officials. Willis argues that under standard rules of statutory construction, this means it should not apply to them. This is not a bad argument and strict textualists would make the argument that if Congress had meant for the law to apply to former officials, it could have said so, as it did in another section of the statute.
While this argument is appealing in a technical sense, Meadows may have the better part of the argument here. He traces the development of the statute and points out numerous reasons Congress intended to include former officials. The law is meant to prevent a state from interfering with the functioning of the federal government, and it makes sense that if federal officials must fear prosecution after they leave office, there is a real interference factor. Moreover, numerous cases have involved removal of former officials, and no court has ever stopped them. But the bottom line here is that there is little law directly on point, and it will be up to the panel.
Because this can get confusing, a little recap here may be helpful: this issue is about whether the case can be removed to federal court. If the panel decides the law doesn’t make removal an option for former officials, then Meadows’ efforts here are at an end. But here’s the problem: if this argument about former officials is the only basis for a decision by the 11th Circuit that Meadows can’t remove his case, any convictions would be very vulnerable on appeal, if the Supreme Court saw this issue the other way. If the Supreme Court were to decide the 11th Circuit got the removal issue wrong, they would order a new trial, in federal court, and it would be all kinds of messy in terms of jeopardy, and the fate of other defendants. No one wants to see this case go there. So, it will be important for the court, as the panel likely well knows, to base its decision on more than one rationale. If it buys Willis’ former official argument, so be it, but the stronger argument that Meadows cannot remove his case is the argument we’ve been discussing for what seems like weeks now, that Meadows isn’t entitled to remove to federal court because he was acting beyond the scope of his official position.
All of that is for just the issues that have come up in the context of Meadows’ motion for an emergency stay—that’s the warm up for the substantive appeal over whether the case should be removed to federal court. The substantive argument about the removal petition has been set on a separate, but expedited, briefing schedule. Meadows’ brief arguing for removal is due Monday. The DA’s brief is due a week later. Meadows will have three additional days to reply. Once the briefs are in, the court can decide the removal issue at any time. It could also decide to schedule oral argument before it makes its decision. Although the 11th Circuit hears argument in a lower percentage of cases that most circuits, it does tend to hear argument in “significant” cases, and any one judge can designate a case for argument.
The removal issue is important for Meadows, but it could also have additional significance, because it is unclear whether a successful petition to remove a case by one defendant means all of the defendants’ cases are removed to federal court. So yes, this is a picayune legal issue, but also one that could have tremendous significance for the outcome of the Georgia prosecution.
In any event, the entire case will be cleaner once the removal issue is no longer in play. Judge McAfee, back in state court, will be free to set up his schedule for which defendants get tried together and when and get to work on pretrial motions. He has a hearing on some of them scheduled on Thursday for the October trial defendants, but there are going to be a lot more of them.
Courts move at different speeds. There are lots of moving parts that aren’t always obvious. But it’s hard to miss the contrast between how speedily the Georgia case is moving and the absence of any movement on the Garcia issue in Florida. It’s fascinating that, at least for now, the 11th Circuit will have the final say over how the trial courts conduct themselves on these issues. The 11th Circuit has set itself a far more rigorous schedule that the one Judge Cannon is following. She might do well to take note.
The Tortoise and the Hare of Criminal Cases
Tonight we focus on two very different issues that will substantially impact the prosecutions against Donald Trump in Florida and in Georgia. There is no set timeline on the first issue. It involves whether the district court in the Mar-a-Lago case will hold a
joycevance.substack.com
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Lead counsel "violated Local Criminal Rule 57.7(b), which prohibits attorneys from releasing public extrajudicial statements regarding, among other things, “the identity, testimony, or credibility of prospective witnesses” and the “merits of the case or the evidence in the case.”
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Ellis is a former counsel for the Thomas More Society, a conservative Catholic group, whose claims to be a constitutional lawyer have been widely doubted.
Described by the New York Times reporter Maggie Haberman as “a lawyer whom Trump sought out after seeing her television commentary”, in 2020 Ellis rose from relative obscurity to become part of what she called an “elite strike force team” working to overturn Trump’s defeat by Biden.
That effort failed. American Family Radio signed up Ellis in December last year. On her show on Thursday, she spoke to Steve Deace, another rightwing host.
Deace said: “Before that man [Trump] needs to be president again … [to] escape the quote-unquote, ‘witch-hunts’, that man needs Jesus again because … his ambitions would be fueled by showing some self-awareness. And he won’t do it because he can’t admit, ‘I’m not God.’”
Ellis said Deace had “perfectly articulated exactly how I as a voter feel”. She knew Trump well “as a friend, as a former boss”, she said, adding: “I have great love and respect for him personally.
“But everything that you just said resonates with me as exactly why I simply can’t support him for elected office again. Why I have chosen to distance is because of that, frankly, malignant narcissistic tendency to simply say that he’s never done anything wrong.
“And the total idolatry that I’m seeing from some of the supporters that are unwilling to put the constitution and the country and the conservative principles above their love for a star is really troubling.
“And I think that we do need to, as Americans and as conservatives and particularly as Christians, take this very seriously and understand where are we putting our vote.”
(full article online)
www.theguardian.com
Described by the New York Times reporter Maggie Haberman as “a lawyer whom Trump sought out after seeing her television commentary”, in 2020 Ellis rose from relative obscurity to become part of what she called an “elite strike force team” working to overturn Trump’s defeat by Biden.
That effort failed. American Family Radio signed up Ellis in December last year. On her show on Thursday, she spoke to Steve Deace, another rightwing host.
Deace said: “Before that man [Trump] needs to be president again … [to] escape the quote-unquote, ‘witch-hunts’, that man needs Jesus again because … his ambitions would be fueled by showing some self-awareness. And he won’t do it because he can’t admit, ‘I’m not God.’”
Ellis said Deace had “perfectly articulated exactly how I as a voter feel”. She knew Trump well “as a friend, as a former boss”, she said, adding: “I have great love and respect for him personally.
“But everything that you just said resonates with me as exactly why I simply can’t support him for elected office again. Why I have chosen to distance is because of that, frankly, malignant narcissistic tendency to simply say that he’s never done anything wrong.
“And the total idolatry that I’m seeing from some of the supporters that are unwilling to put the constitution and the country and the conservative principles above their love for a star is really troubling.
“And I think that we do need to, as Americans and as conservatives and particularly as Christians, take this very seriously and understand where are we putting our vote.”
(full article online)
Trump lawyer Jenna Ellis turns on âmalignant narcissistâ ex-president
Ellis, one of 18 Trump associates charged in Georgia election subversion case, says she ‘simply can’t support him’ again
www.theguardian.com
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[ Let me include the Republican attempt to impeach/indict President Biden and see where it leads ]
Part 1
Impeaching is the Congressional version of a prosecutor indicting. An impeachment is a charging document; it charges one or more people with an impeachable offense, and that’s done in the House of Representatives. Then, the person who is name is tried on those charges before the Senate, which determines whether they are convicted on the articles of impeachment. In this case, the hard-right wing of the Republican party wants to impeach Joe Biden, which means they are supposed to have provable allegations of high crimes and misdemeanors to bring against him. But that’s the problem. They have speculation, rumor, and innuendo. Despite the best efforts to come up with something, Republicans are still empty-handed.
Even key members of their own party think so. Republicans have a wafer thin five-member majority in the House, but something like twenty or thirty of their members, depending on who’s doing the counting, have expressed doubts about impeachment. Even some Republicans don’t know what the provable crimes and misdemeanors Joe Biden has supposedly committed are.
It gets even more offbeat. In addition to a baseless effort at impeaching Biden, Kevin McCarthy’s future as Speaker of the House also seems to be in question. His sometime ally Matt Gaetz recently told a conservative radio host that the Republican majority in this House hasn’t lived up to his expectations and that when they return to session later this month, they must “seize the initiative.” He says, “that means forcing votes on impeachment. And if Speaker McCarthy stands in our way, he may not have the job long.” Gaetz added in a tweet, “Let’s hope he works with us, not against us.”
Gaetz’s faction is setting up a showdown. They’re suggesting they’re willing to shut down the government, which would happen if they refuse to work with other Republicans to pass the federal budget by the end of the month. California Congressman Adam Schiff put it succinctly, “MAGA Republicans are now threatening to shut down the government if there isn’t an impeachment inquiry into President Biden. This is extreme and dangerous— but it’s also par for the course in their unswerving devotion to Donald Trump.” So, there are lots of moving pieces here, including matters that are largely political, not legal.
But the process of impeachment itself is a legal matter. You don’t impeach a president as revenge over the impeachment of your own guy, at least that wasn’t the vision of the Founding Fathers when they wrote the Constitution. That’s a level of irresponsible childishness that has become commonplace in the politics of Trump, but which demands that it be called out for the breakdown of our Constitutional system that it represents.
While Gaetz, and others like Marjorie Taylor Greene, push for indictment, other Republicans, including some who don’t typically weigh in against that faction, have conceded there is no evidence that warrants an impeachment. For instance, Colorado Representative Ken Buck, a member himself of the House Freedom Caucus, had this to say about Greene’s push for indictment, “The idea that she is now the expert on impeachment or that she is someone who should set the timing on impeachment is absurd. The time for impeachment is the time when there’s evidence...That doesn’t exist right now.” Greene has said she is ready for impeachment proceedings to start this week.
Many Republicans who don’t remotely support Joe Biden have recognized that the evidence necessary for impeachment proceedings just isn’t there. South Carolina Representative Nancy Mace said on Sunday morning television that, “impeachment is just window dressing. It's not going to go anywhere." Arkansas Representative French Hill said that there wasn’t sufficient evidence of wrongdoing by Biden to commence impeachment proceedings. He notedthat House committee chairs who are looking into the Biden family’s past foreign business dealings don’t have “detailed investigations and quality work.” He seems inclined to believe they should keep working—no supporter of Biden’s—but realistically acknowledged that the evidence is not there.
joycevance.substack.com
Part 1
Impeaching is the Congressional version of a prosecutor indicting. An impeachment is a charging document; it charges one or more people with an impeachable offense, and that’s done in the House of Representatives. Then, the person who is name is tried on those charges before the Senate, which determines whether they are convicted on the articles of impeachment. In this case, the hard-right wing of the Republican party wants to impeach Joe Biden, which means they are supposed to have provable allegations of high crimes and misdemeanors to bring against him. But that’s the problem. They have speculation, rumor, and innuendo. Despite the best efforts to come up with something, Republicans are still empty-handed.
Even key members of their own party think so. Republicans have a wafer thin five-member majority in the House, but something like twenty or thirty of their members, depending on who’s doing the counting, have expressed doubts about impeachment. Even some Republicans don’t know what the provable crimes and misdemeanors Joe Biden has supposedly committed are.
It gets even more offbeat. In addition to a baseless effort at impeaching Biden, Kevin McCarthy’s future as Speaker of the House also seems to be in question. His sometime ally Matt Gaetz recently told a conservative radio host that the Republican majority in this House hasn’t lived up to his expectations and that when they return to session later this month, they must “seize the initiative.” He says, “that means forcing votes on impeachment. And if Speaker McCarthy stands in our way, he may not have the job long.” Gaetz added in a tweet, “Let’s hope he works with us, not against us.”
Gaetz’s faction is setting up a showdown. They’re suggesting they’re willing to shut down the government, which would happen if they refuse to work with other Republicans to pass the federal budget by the end of the month. California Congressman Adam Schiff put it succinctly, “MAGA Republicans are now threatening to shut down the government if there isn’t an impeachment inquiry into President Biden. This is extreme and dangerous— but it’s also par for the course in their unswerving devotion to Donald Trump.” So, there are lots of moving pieces here, including matters that are largely political, not legal.
But the process of impeachment itself is a legal matter. You don’t impeach a president as revenge over the impeachment of your own guy, at least that wasn’t the vision of the Founding Fathers when they wrote the Constitution. That’s a level of irresponsible childishness that has become commonplace in the politics of Trump, but which demands that it be called out for the breakdown of our Constitutional system that it represents.
While Gaetz, and others like Marjorie Taylor Greene, push for indictment, other Republicans, including some who don’t typically weigh in against that faction, have conceded there is no evidence that warrants an impeachment. For instance, Colorado Representative Ken Buck, a member himself of the House Freedom Caucus, had this to say about Greene’s push for indictment, “The idea that she is now the expert on impeachment or that she is someone who should set the timing on impeachment is absurd. The time for impeachment is the time when there’s evidence...That doesn’t exist right now.” Greene has said she is ready for impeachment proceedings to start this week.
Many Republicans who don’t remotely support Joe Biden have recognized that the evidence necessary for impeachment proceedings just isn’t there. South Carolina Representative Nancy Mace said on Sunday morning television that, “impeachment is just window dressing. It's not going to go anywhere." Arkansas Representative French Hill said that there wasn’t sufficient evidence of wrongdoing by Biden to commence impeachment proceedings. He notedthat House committee chairs who are looking into the Biden family’s past foreign business dealings don’t have “detailed investigations and quality work.” He seems inclined to believe they should keep working—no supporter of Biden’s—but realistically acknowledged that the evidence is not there.
Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence. Impeaching is the Congressional version of a prosecutor indicting. An...
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Part 2
South Dakota Republican Dusty Johnson, who chairs a centrist group of House Republicans made a pragmatic legal point without conceding the political one, “There is a constitutional and legal test that you have to meet with evidence, [for impeachment]” he told CNN. “I have not seen that evidence, but I guess I’m not suggesting it doesn’t exist. I do think the fact that the committees continue to ask for additional documents suggests that they don’t think their evidentiary record is complete yet.” It would be like impeaching Barack Obama because you thought his birth certificate was phony even there was no evidence to suggest it and plenty to the contrary. Forbes reported that Representative David Joyce of Ohio told them that even after months of investigation, he doesn’t see “‘facts or evidence at this point’ that would support impeachment.”
McCarthy wanted the Speaker’s job, and now it will be up to him to determine how to navigate between Republicans who want to pass a budget full of cuts to Democratic priorities and those who are willing to shut down the government—delaying social security checks and “non-essential services,” so they can keep hunting for their great white whale and show their fealty to Trump. MAGA Republicans may want a vote on impeachment even if it’s doomed to fail, so that they can call out those who don’t support Trump (because, of course, that’s what all of this is about) and target them for primary opposition in the coming election cycle. But at some point—and I emphasize we have yet to see it with today’s Republican party—our politics have to be about more than just winning, if we’re going to continue as a Constitutional republic.
The White House has lawyered up—adding experienced practitioners and a war room environment to deal with the onslaught of political rhetoric in a fact-free environment that is coming at them from the direction of the Hill. This sparring benefits no one, certainly not the American people. And MAGA’s antipathy towards continuing to help Ukrainians in their fight against Russia could do grave damage to our national security and that of our allies.
Maryland Representative Jamie Raskin, the top Democrat on the House Oversight Committee summed it up like this:
“The first MAGA-directed Congress is by far the most reckless and least productive in decades…Instead of working on legislation to promote the common good or even just keep the government running, House Republicans are weaponizing their offices and exploiting congressional power and resources to promote debunked and outlandish conspiracy theories about President Biden. This is a transparent effort to boost Donald Trump’s campaign by establishing a false moral equivalency between Trump—the four time-indicted former president now facing 91 federal and state criminal charges, based on a mountain of damning evidence for a shocking range of felonies, including lying to the FBI, endangering national security by illegally keeping classified documents, and conspiring to subvert the U.S. Constitution—and President Biden, against whom there is precisely zero evidence of any wrongdoing whatsoever.”
joycevance.substack.com
South Dakota Republican Dusty Johnson, who chairs a centrist group of House Republicans made a pragmatic legal point without conceding the political one, “There is a constitutional and legal test that you have to meet with evidence, [for impeachment]” he told CNN. “I have not seen that evidence, but I guess I’m not suggesting it doesn’t exist. I do think the fact that the committees continue to ask for additional documents suggests that they don’t think their evidentiary record is complete yet.” It would be like impeaching Barack Obama because you thought his birth certificate was phony even there was no evidence to suggest it and plenty to the contrary. Forbes reported that Representative David Joyce of Ohio told them that even after months of investigation, he doesn’t see “‘facts or evidence at this point’ that would support impeachment.”
McCarthy wanted the Speaker’s job, and now it will be up to him to determine how to navigate between Republicans who want to pass a budget full of cuts to Democratic priorities and those who are willing to shut down the government—delaying social security checks and “non-essential services,” so they can keep hunting for their great white whale and show their fealty to Trump. MAGA Republicans may want a vote on impeachment even if it’s doomed to fail, so that they can call out those who don’t support Trump (because, of course, that’s what all of this is about) and target them for primary opposition in the coming election cycle. But at some point—and I emphasize we have yet to see it with today’s Republican party—our politics have to be about more than just winning, if we’re going to continue as a Constitutional republic.
The White House has lawyered up—adding experienced practitioners and a war room environment to deal with the onslaught of political rhetoric in a fact-free environment that is coming at them from the direction of the Hill. This sparring benefits no one, certainly not the American people. And MAGA’s antipathy towards continuing to help Ukrainians in their fight against Russia could do grave damage to our national security and that of our allies.
Maryland Representative Jamie Raskin, the top Democrat on the House Oversight Committee summed it up like this:
“The first MAGA-directed Congress is by far the most reckless and least productive in decades…Instead of working on legislation to promote the common good or even just keep the government running, House Republicans are weaponizing their offices and exploiting congressional power and resources to promote debunked and outlandish conspiracy theories about President Biden. This is a transparent effort to boost Donald Trump’s campaign by establishing a false moral equivalency between Trump—the four time-indicted former president now facing 91 federal and state criminal charges, based on a mountain of damning evidence for a shocking range of felonies, including lying to the FBI, endangering national security by illegally keeping classified documents, and conspiring to subvert the U.S. Constitution—and President Biden, against whom there is precisely zero evidence of any wrongdoing whatsoever.”
Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence. Impeaching is the Congressional version of a prosecutor indicting. An...
joycevance.substack.com
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Part 3
But what do you do when your candidate is twice impeached and four times indicted? Apparently, MAGA Republicans will do anything to try and make it look like the score is even ahead of the general election. So here we are.
Trump, obviously looking for any way to avoid being a convicted candidate by the time the election rolls around, filed a motion to recuse Judge Tanya Chutkan, the federal judge handling the Special Counsel’s Washington D.C. indictment against him. The motion is nine pages long. You can read it here. The standard for a motion to recuse is whether a reasonable man (not a Trump supporter, just an average, objective member of the community) evaluating the judge’s conduct would believe she could give him a fair trial. It’s about the appearance of impropriety, as well as an actual bias.
Trump objects to comments Judge Chutkan has made while sentencing other January 6 defendants. His lawyers wrote, “Judge Chutkan has, in connection with other cases, suggested that President Trump should be prosecuted and imprisoned. Such statements, made before this case began and without due process, are inherently disqualifying. Although Judge Chutkan may genuinely intend to give President Trump a fair trial—and may believe that she can do so—her public statements unavoidably taint these proceedings, regardless of outcome. The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially, or in fulfillment of her prior negative statements regarding President Trump. Under these circumstances, the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”
That’s the correct standard, sort of. It’s a “reasonable person” standard—whether someone without an axe to grind would have confidence the judge is fair. But Trump overclaims the facts about Judge Chutkan’s conduct. He points to a sentencing where she said this about January 6, “This was nothing less than an attempt to violently overthrow the government, the legally, lawfully, peacefully elected government by individuals who were mad that their guy lost. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb. And the people who mobbed that Capitol were there in fealty, in loyalty, to one man -- not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.”
joycevance.substack.com
But what do you do when your candidate is twice impeached and four times indicted? Apparently, MAGA Republicans will do anything to try and make it look like the score is even ahead of the general election. So here we are.
Trump, obviously looking for any way to avoid being a convicted candidate by the time the election rolls around, filed a motion to recuse Judge Tanya Chutkan, the federal judge handling the Special Counsel’s Washington D.C. indictment against him. The motion is nine pages long. You can read it here. The standard for a motion to recuse is whether a reasonable man (not a Trump supporter, just an average, objective member of the community) evaluating the judge’s conduct would believe she could give him a fair trial. It’s about the appearance of impropriety, as well as an actual bias.
Trump objects to comments Judge Chutkan has made while sentencing other January 6 defendants. His lawyers wrote, “Judge Chutkan has, in connection with other cases, suggested that President Trump should be prosecuted and imprisoned. Such statements, made before this case began and without due process, are inherently disqualifying. Although Judge Chutkan may genuinely intend to give President Trump a fair trial—and may believe that she can do so—her public statements unavoidably taint these proceedings, regardless of outcome. The public will reasonably and understandably question whether Judge Chutkan arrived at all of her decisions in this matter impartially, or in fulfillment of her prior negative statements regarding President Trump. Under these circumstances, the law and the overwhelming public interest in the integrity of this historic proceeding require recusal.”
That’s the correct standard, sort of. It’s a “reasonable person” standard—whether someone without an axe to grind would have confidence the judge is fair. But Trump overclaims the facts about Judge Chutkan’s conduct. He points to a sentencing where she said this about January 6, “This was nothing less than an attempt to violently overthrow the government, the legally, lawfully, peacefully elected government by individuals who were mad that their guy lost. I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb. And the people who mobbed that Capitol were there in fealty, in loyalty, to one man -- not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.”
Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence. Impeaching is the Congressional version of a prosecutor indicting. An...
joycevance.substack.com
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Part 4
Judge Chutkan made comments while sentencing in cases where Trump was not a defendant, but where defendants argued in their defense that they were following him when they went to the Capitol that day. Reading her comments in context, she does not make any assumptions about Trump’s guilt, as George Conway pointed out on Twitter tonight.
Chutkan’s comments are statements of fact. Trump’s lawyers draw the strongest inference they can from it and say that it is “an apparent prejudgment of guilt,” concluding that “these comments are disqualifying standing alone.” They conclude by arguing the context, that since Jack Smith works for Joe Biden, people may lack confidence in the outcome of the case if Judge Chutkan tries it.
This doesn’t make a lot of sense. For starters, recusal is, I’ll say it again, judged from the point of view of a reasonable person, not a Trump supporter. And Trump’s lawyers don’t evaluate the situation from the perspective of a reasonable person who has had the opportunity to see how Judge Chutkan, a former defense lawyer herself, has conducted proceedings so far in an even-handed fashion. Although Trump’s position isn’t frivolous, it’s not nearly as strong as his lawyers suggest, and he’s unlikely to win here. Trump is judge shopping for another Aileen Cannon, the Florida judge who weighed in so heavily for him that the 11th Circuit had to issue a stinging reversal. He is not entitled to a judge who is biased in his favor, just a fair one. He has that with Judge Chutkan.
We won’t have to wait long to learn what Jack Smith’s position is. Judge Chutkan responded with a minute order, which is an entry written on the docket (the listing of all of the pleadings and filings in the case), as opposed to the separately filed and uploaded orders we often see when a Judge sets forth a ruling and a justification for it. Minute orders are what judges use to issue quick rulings like Chutkan did here: “MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's [50] Motion for Recusal, it is hereby ORDERED that the government shall file any opposition no later than September 14, 2023, and the defense shall file any reply within three calendar days from the filing date of the government's opposition.”
It’s highly unlikely Judge Chutkan will recuse herself, as much as she might want to sidestep all of the drama, to say nothing of the personal attacks that Trump’s criticisms have launched her way. Judges weigh recusal motions seriously in my experience, considering whether there is an appearance of impropriety if they keep the case, and also whether there is an undue burden on the other judges on their court if they don’t, stepping away simply because the allegation has been made without rigorously evaluating their fitness to continue on the case. Many of the judges in the District of Columbia have handled January 6 cases. If the analysis Trump’s lawyers have called for is applied to Judge Chutkan, it’s difficult to imagine a judge who could pass muster. Many of them have made comments similar to hers, while others have demonstrated less concern over the seriousness of defendants’ January 6 conduct. Granting Trump’s motion would lead to a situation where one side or the other could object to any replacement judge, underscoring that this is not a motion that should be granted.
joycevance.substack.com
Judge Chutkan made comments while sentencing in cases where Trump was not a defendant, but where defendants argued in their defense that they were following him when they went to the Capitol that day. Reading her comments in context, she does not make any assumptions about Trump’s guilt, as George Conway pointed out on Twitter tonight.
Chutkan’s comments are statements of fact. Trump’s lawyers draw the strongest inference they can from it and say that it is “an apparent prejudgment of guilt,” concluding that “these comments are disqualifying standing alone.” They conclude by arguing the context, that since Jack Smith works for Joe Biden, people may lack confidence in the outcome of the case if Judge Chutkan tries it.
This doesn’t make a lot of sense. For starters, recusal is, I’ll say it again, judged from the point of view of a reasonable person, not a Trump supporter. And Trump’s lawyers don’t evaluate the situation from the perspective of a reasonable person who has had the opportunity to see how Judge Chutkan, a former defense lawyer herself, has conducted proceedings so far in an even-handed fashion. Although Trump’s position isn’t frivolous, it’s not nearly as strong as his lawyers suggest, and he’s unlikely to win here. Trump is judge shopping for another Aileen Cannon, the Florida judge who weighed in so heavily for him that the 11th Circuit had to issue a stinging reversal. He is not entitled to a judge who is biased in his favor, just a fair one. He has that with Judge Chutkan.
We won’t have to wait long to learn what Jack Smith’s position is. Judge Chutkan responded with a minute order, which is an entry written on the docket (the listing of all of the pleadings and filings in the case), as opposed to the separately filed and uploaded orders we often see when a Judge sets forth a ruling and a justification for it. Minute orders are what judges use to issue quick rulings like Chutkan did here: “MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant's [50] Motion for Recusal, it is hereby ORDERED that the government shall file any opposition no later than September 14, 2023, and the defense shall file any reply within three calendar days from the filing date of the government's opposition.”
It’s highly unlikely Judge Chutkan will recuse herself, as much as she might want to sidestep all of the drama, to say nothing of the personal attacks that Trump’s criticisms have launched her way. Judges weigh recusal motions seriously in my experience, considering whether there is an appearance of impropriety if they keep the case, and also whether there is an undue burden on the other judges on their court if they don’t, stepping away simply because the allegation has been made without rigorously evaluating their fitness to continue on the case. Many of the judges in the District of Columbia have handled January 6 cases. If the analysis Trump’s lawyers have called for is applied to Judge Chutkan, it’s difficult to imagine a judge who could pass muster. Many of them have made comments similar to hers, while others have demonstrated less concern over the seriousness of defendants’ January 6 conduct. Granting Trump’s motion would lead to a situation where one side or the other could object to any replacement judge, underscoring that this is not a motion that should be granted.
Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence. Impeaching is the Congressional version of a prosecutor indicting. An...
joycevance.substack.com
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Part 5
Justice Alito, too, has been called upon this week to respond to a request that he recuse. It’s about a tax case the Court is about to hear argument in. Alito wrote a response refusing to do so after Senate Democrats demanded that he recuse himself because one of the attorneys arguing the case conducted the interviews of Alito that resulted in two articles about Alito’s work that were recently published in the Wall Street Journal, along with its editorial page editor. Alito objected to the Democrats’ suggestion there was a conflict, writing, “This argument is unsound. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate.” He concluded, “there is no valid reason for my recusal in this case. There was nothing out of the ordinary about the interviews in question.”
It’s a little different from Judge Chutkan’s situation. One is about an actual conflict of interest, while the other is about an inference that some people, albeit perhaps not reasonable ones, would lack confidence in Chutkan. It would be ludicrous if Alito stayed on his case and Chutkan was forced to recuse from the Trump prosecution.
joycevance.substack.com
Justice Alito, too, has been called upon this week to respond to a request that he recuse. It’s about a tax case the Court is about to hear argument in. Alito wrote a response refusing to do so after Senate Democrats demanded that he recuse himself because one of the attorneys arguing the case conducted the interviews of Alito that resulted in two articles about Alito’s work that were recently published in the Wall Street Journal, along with its editorial page editor. Alito objected to the Democrats’ suggestion there was a conflict, writing, “This argument is unsound. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate.” He concluded, “there is no valid reason for my recusal in this case. There was nothing out of the ordinary about the interviews in question.”
It’s a little different from Judge Chutkan’s situation. One is about an actual conflict of interest, while the other is about an inference that some people, albeit perhaps not reasonable ones, would lack confidence in Chutkan. It would be ludicrous if Alito stayed on his case and Chutkan was forced to recuse from the Trump prosecution.
Impeachment and Recusal
There’s been lots of tough talk from House Republicans about impeaching Joe Biden recently. But what House Republicans are contemplating is political theatrics, not a solemn impeachment proceeding based on evidence. Impeaching is the Congressional version of a prosecutor indicting. An...
joycevance.substack.com
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House Speaker Kevin McCarthy’s announcement of an impeachment inquiry into President Joe Biden isn’t surprising so much as it is depressingly predictable. The Republican Party’s inability to generate the tiniest shreds of evidence of wrongdoing on the part of the then-vice president regarding his son Hunter Biden’s business dealings has been a pathetic spectacle of political theater for just under a year. McCarthy’s impeachment inquiry was him bowing to the pressures from the “Freedom Caucus” wing of his party, but just a short while after his announcement, he was still roundly excoriated on the House floor by Rep. Matt Gaetz, who called McCarthy’s move a “baby step.”
Ian Sams, a White House spokesman, released a statement saying McCarthy’s new political move amounted to an “evidence-free goose chase.” That was the diplomaticreaction to what is clearly the naked abuse of government by conservative lawmakers. “The House Republicans’ investigations for the past 9 months have proved that — as their own witnesses testify the President hasn’t done anything wrong, and their own documents show no ties to the President.”
(full article online)
Ian Sams, a White House spokesman, released a statement saying McCarthy’s new political move amounted to an “evidence-free goose chase.” That was the diplomaticreaction to what is clearly the naked abuse of government by conservative lawmakers. “The House Republicans’ investigations for the past 9 months have proved that — as their own witnesses testify the President hasn’t done anything wrong, and their own documents show no ties to the President.”
(full article online)
Hot takes pour in after McCarthy announces impeachment inquiry
House Speaker Kevin McCarthy’s announcement of an impeachment inquiry into President Joe Biden isn’t surprising so much as it is depressingly predictable. The Republican Party’s inability to ...
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“House Republicans constantly insist that they are investigating President Biden, and not his adult son,” Raskin said in the statement. He continued:
In fact, as Raskin shows, lots of Republicans know Comer hasn’t found anything meaningful. Here are just a few examples:
(full article online)
Fear not: Raskin has the receipts. Among the 12,000 pages of subpoenaed bank records, more than 2,000 pages of suspicious activity reports, and multiple witnesses interviewed, including two former business associates of Hunter Biden, Republicans have found:
- No bank records showing payments to the president.
- No suspicious activity reports alleging potential misconduct by the president or that he is involved in his son’s business dealings.
- No witnesses testifying to misconduct by the president.
In fact, as Raskin shows, lots of Republicans know Comer hasn’t found anything meaningful. Here are just a few examples:
It goes on. Those are six of the 19 bullet points Raskin assembles to show that even many prominent Republicans don’t think Comer has assembled enough evidence to impeach Biden.
(full article online)
Rep. Jamie Raskin blows up Republican lies about alleged Biden corruption
As House Republicans gear up to impeach President Joe Biden, Rep. Jamie Raskin has released a thorough statement debunking the supposed basis for an impeachment.
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There's been a bit of fuss made over this, but it's important to put it in context so that's what we'll do. Yes, it's absolutely true: According to a binding opinion issued by the Justice Department, House impeachment inquiries are invalid unless the House votes to authorize them, meaning the Biden administration can take whatever subpoenas come from House Republicans in the next few weeks and summarily trash them. Sorry, none of it counts! Come back when you've taken a vote, Kevin.
(full article online)
(full article online)
Impeachment inquiry null and void without House vote, confirmed by Trump’s DOJ
There's been a bit of fuss made over this, but it's important to put it in context so that's what we'll do. Yes, it's absolutely true: According to a binding opinion issued by the Justice Department, House impeachment inquiries are invalid unless the...
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