Pondering the Prosecution of a President

What happens if the Georgia trial is ongoing in January 2025?

By and
124

Welcome once more to The Collision! A programming note: We’ll be taking a break for Thanksgiving next week, and we’ll be back to our regularly scheduled newsletter on November 30.

The Docket

  • Donald Trump’s legal team filed a motion Wednesday for a mistrial in the ongoing civil case in New York regarding claims Trump and others committed fraud. According to NBC News, the motion focuses mostly on the gag order issued by Judge Arthur Engoron following Trump’s public comments on social media criticizing Engoron’s clerk. Trump has already had to pay two fines for violating the order, which he continues to do regularly on his social media accounts.
  • So many court dates, so little time. That was the crux of the argument in a motion Trump’s lawyers filed Monday in the South Florida case involving the retainment of classified documents at Mar-a-Lago. The Trump attorneys requested Judge Aileen Cannon move a scheduled two-day hearing starting February 15 because it conflicts with another hearing scheduled for the same day in Trump’s New York hush-money case. On Thursday, Cannon granted the request and moved the hearing, which is concerned with the procedure for how to handle classified material during the trial, up to February 12, the Messenger reports.
  • By the way, the conflicting hearing in New York is to consider a motion filed by Team Trump last month to dismiss the case brought by Manhattan District Attorney Alvin Bragg. Trump will likely attend that hearing in person. This week, Bragg’s team responded with a 98-page brief explaining why this isn’t the politically motivated prosecution Trump argues it is.
  • And if you can’t tell, we’re in the midst of dismissal motion season for Trump’s trials, so get used to hearing about a lot of these motions now and in the first several weeks of the new year once judges start to consider them.
  • The impeachment inquiry into President Joe Biden continues to move forward in fits and starts. House Speaker Mike Johnson told Fox News this week that after receiving a briefing from the three committee chairs leading the inquiry that “the appropriate step is to place key witnesses under oath and question them under the penalty of perjury to fill gaps in the record.” Johnson also reiterated his “full and unwavering support” for the three Republican chairmen: Rep. James Comer of Oversight, Rep. Jim Jordan of Judiciary, and Rep. Jason Smith of Ways and Means.
  • You’ll notice Johnson has provided no definitive timeline for actually filing articles of impeachment. The Republican speaker said the House is moving “forward toward an inflection point” on impeachment—which is not much different from what he said two weeks ago: “I do believe that very soon we are coming to a point of decision on it.”

An Unprecedented State of Affairs

Fulton County District Attorney Fani Willis speaks during a news conference at the Fulton County government building on August 14, 2023, in Atlanta. (Photo by Joe Raedle/Getty Images)
Fulton County District Attorney Fani Willis speaks during a news conference at the Fulton County government building on August 14, 2023, in Atlanta. (Photo by Joe Raedle/Getty Images)

In an interview with the Washington Post this week, Fulton County District Attorney Fani Willis made a notable prediction about Donald Trump’s upcoming trial on charges alleging that he and his co-defendants tried to overturn the 2020 election results in Georgia.

“I believe in that case there will be a trial. I believe the trial will take many months,” Willis said Tuesday. “And I don’t expect that we will conclude until the winter or the very early part of 2025.”

If you’ve got your calendar handy, you’ll note that the “very early part of 2025” coincides with the start of a new presidential term, and it’s a distinct possibility Trump will be back in the White House. How can a criminal trial of a newly inaugurated president, uh, happen? How would this unprecedented situation unfold?

You're out of free articles
Create an account to unlock 1 more articles
By signing up with your email, you agree to The Dispatch’s privacy policy and terms and conditions
Already have an account? Sign In
124
By and
Comments (124)
Join The Dispatch to participate in the comments.
 
  1. Bob Douglas

    Why are there no more Collision newsletters? Because there is no political news?

    Collapse
  2. Avatar photo
    J. Eric

    The current political situation, despite the past 14 years of performance politics, absolutely boggles my mind.
    Trump vs. Clinton in 2016?!? WTF?!? And Trump wins. It can’t get worse than this. But wait: Joe Biden was the only electable Democrat running in 2020 and is now President of the United States. Come on man. Finally, Biden decides to run again and the ultimate deplorable, Trump, is still around and is a viable candidate.
    No one could make this up.
    My mind is blown. I’m grateful to be old.

    Collapse
  3. Randall Briggs

    And in the meantime, we’ve outsourced civic education for our next generation to an authoritarian regime that is convincing them that maybe Hamas isn’t the only group of terrorists who know what time it is.

    Is Sarah alluding to the TikTok arm of the PRC?

    Collapse
    1. Bob Douglas

      No, that other font of legal wisdom, the Bin Laden Letter. You may have to go back to the internet Wayback machine to read it, since it is creeping people out.

      Collapse
      1. Randall Briggs

        I got the gist of it. It's being spread through TikTok, is it not? That would be where Sarah's reference to the "authoritarian regime" comes from, I think.

        Collapse
        1. Avatar photo
          Ben Connelly

          Yes

          Collapse
  4. Avatar photo
    Cheerio

    I think if the Deep State was as deep and operating under an unaccountable agenda as accused .... that some bullet would have solved our Trump problem by now. But then, Castro died a natural death.

    Collapse
  5. I.Leininger@Earthlink.Net

    How sad to find such an unusually depressing end to Sarah's concluding remarks, but I can't argue with it. Either the voters will nominate someone other than Herr Trump, or elect his opponent in 12 months, or if Trump wins he'll immediately be impeached the day he takes office, and the Supreme Court will have another Bush vs Gore decision to make after Trump sues Congress.
    Another scenario I've not seen discussed (and which gives me a bit of hope) would be if the presidential election isn't resolved by the votes, and Congress must decide who takes office in January, 2025. How would that proceed? Could Congress legally elect a candidate who was neither the Democrat, Republican, or 3rd party candidate? (I keep thinking 2024 may be the year earth is hit by an asteroid, and we need to start over.)

    Collapse
  6. Avatar photo
    Delenda Est

    He's NOT president... Really, what is so hard about applying the rule of *law,* you know, without fear or favor??

    Collapse
    1. Avatar photo
      Cheerio

      Honestly, anyone else would be in prison.

      Collapse
  7. Avatar photo
    Gbr0wn

    "And Trump, like any one of us, could drop dead tomorrow."

    OOOoooh. We DON'T actually want THAT . . . (do we?)

    Collapse
    1. Avatar photo
      Cheerio

      I pray every day that the former guy can experience the bliss of the afterlife.

      Collapse
  8. Avatar photo
    Bill Dyer (aka Beldar)

    Ms. Isgur's reference to "playing the floor is lava," in combination with something she said in a recent podcast, tells me that she was considering, and perhaps composing in her head, her view for this newsletter WHILE PLAYING THAT GAME with the Brisket.

    But yeah, the metaphor works.

    Collapse
  9. Avatar photo
    Bill Dyer (aka Beldar)

    When other sorts of defendants, individual and corporate, are under investigation, the DoJ and its state-court counterparts routinely demand, and usually get, tolling agreements in complicated civil and criminal cases that seem likely to run into statute of limitations problems. If the target consents, he or she will be later barred from asserting a statute of limitations defense to charges brought after he or she has left office — even if those charges would otherwise be time-barred, which would otherwise be a winning defense that ends the case.

    Courts routinely enforce such contractual tolling agreements. Potential defendants agree to such tolling agreements because they hope that as the record gets colder, witnesses forget or die, and the prosecution becomes more risky with the passage of time, the prosecutors will ultimately decide against bringing their criminal charges or civil lawsuit. But if the potential defendant refuses to execute a tolling agreement, that forces the government's hand — and instead of a prospective indictment or lawsuit that might never have gotten filed if the tolling agreement had been executed, you now have a definite indictment or lawsuit, FILED NOW, to prevent the running of limitations even if the investigation hasn't been completed.

    Thus: If the DoJ has constitutional impediments which limit its ability to prosecute a sitting POTUS, the remedy is for the DoJ to demand agreement from its target that he or she assent to a tolling agreement that suspends the running of all applicable statutes of limitation until after the target leaves office. If the POTUS refuses, that constitutes his judgment that the interference to his or her performance of official duties is so unlikely, or of less likely consequence, as to therefore waive any objections he or she might raise to being prosecuted while still in office.

    Congress also could, as the 2001 memo notes, provide by statute for the tolling of limitations; and sometimes courts have found "equitable tolling" of limitations in circumstances in which the defendant has been actively responsible for the delay. But it needn't have.

    The OLC memos are not by themselves a sound basis for concluding not to prosecute EVER, and could not be, lest the POTUS become above the law. They ARE a sound basis for delaying prosecution, through — UNLESS the POTUS is signaling his intent to try to forever escape criminal culpability by relying on purely procedural defenses offered through statutes of limitations.

    Bill Barr screwed the pooch when he used the OLC memoranda as a partial basis for declining any action after the completion and release of the Mueller Report. He should instead have demanded a tolling agreement from Trump — on potential obstruction of justice charges, for which the Mueller Report furnished AMPLE support. If Trump refused, that whole constitutional objection would have evaporated.

    Collapse
  10. Avatar photo
    Bill Dyer (aka Beldar)

    I once again abuse your patience, fellow comment readers, and Dispatch Media's bandwidth to reprint here the extremely long (including appended war-story) comment about motions for new trials that I left on yesterday's TMD.

    ======

    Trump's mistrial motion is the stupidest midtrial motion I've ever seen, and I've been trying civil lawsuits for four-plus decades. Even if Trump were 100% right in every single one of his assertions about this trial and in his purported grounds, it would STILL be the stupidest motion I've ever seen.

    As TMD quite properly focused upon in its short blurb above, the RELIEF that Trump's motion seeks is "to bring these proceedings to an immediate halt."

    Are you following the chain of argument here? (1) Trump says the judge is unfair. (2) Therefore the case should be over and Trump wins.

    Friends and neighbors, do you know what the remedy is for a mistrial? IT'S A NEW TRIAL. Nothing more. You "win" nothing more than a chance to start over if your mistrial motion is granted.

    For that reason, IN A BENCH TRIAL like this one, about the only reason that a mistrial motion would ever be made or granted — or taken seriously by anyone with even a fragmentary understanding of our justice system — would be if it were based on the death or disability of the trial judge who's sitting as factfinder in lieu of a jury. Thus, from the ABA:

    ===begin quote===
    Mistrials are trials that are not successfully completed. They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial.

    Mistrials can occur for many reasons:

    * death of a juror or attorney

    * an impropriety in the drawing of the jury discovered during the trial

    * a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation)

    *juror misconduct (e.g., having contacts with one of the parties, considering evidence not presented in the trial, conducting an independent investigation of the matter)

    *the jury's inability to reach a verdict because it is hopelessly deadlocked.
    ===end quote===
    link: https://tinyurl.com/3xbpr7es

    But even the death of the trial judge midtrial — when it's a jury, not the judge, who's acting as factfinder — won't necessarily get you a mistrial granted and the resulting chance to start over. The trial judge in the famous Pennzoil v. Texaco jury trial here in Houston died midtrial, and a visiting judge took over the rest of the trial.

    And this is key: EVEN IF YOUR MOTION FOR MISTRIAL IS GRANTED, THAT NEITHER ENDS THE CASE, NOR GETS YOU A NEW JUDGE.

    Suppose Trump's motion were incredibly well-founded factually, and suppose that the judge, upon reading, has an epiphany, realizes he's been terribly unfair to Trump, and that, for instance, 80% of the evidence previously admitted against him should have been excluded. What's the remedy?

    The remedy would be for Judge Engoron to effectively "instruct himself" to ignore that evidence in deciding the case at its conclusion. The usual reasons for mistrial are that the sitting jury is so badly contaminated that even judicial instructions can't cure the contamination. But when the factfinder is a judge, said judge is conclusively presumed to be able to understand, and follow, his or her own rulings, including any changes to them.

    This is the kind of motion that strongly suggests a client who is out of control and no longer remotely interested in his own lawyers' advice:

    "But Mr. President, we can't just ask for the case to be over now! Mistrial motions can't get that result!"

    "I don't care! File a mistrial motion today and demand in it that the proceedings be brought to an immediate halt!"

    Sort of like suspending the Constitution.

    Mistrials in civil jury trials are actually very rare indeed. For purposes of comparison — and as bonus content! — here's one of my own long but true war stories, reprinted from my blog, about a civil mistrial motion that WAS well-founded and properly granted. (link: https://www.beldar.org/beldarblog/2006/12/inside_the_robe.html)

    --------------

    One of the worst judges I've ever appeared before was one of the nicest people I've ever met.

    It's part of the nature of a judge's job that he or she has to rule against someone in the course of ruling for someone else. More precisely, they're ruling against someone's position, someone's argument, someone's claim or defense. I've never seen a judge point a finger at a litigant or his/her lawyer and say, "Hey, buddy, you're a loser, get outta my court!" (I certainly have seen litigants and lawyers who deserved that, however.) But in any event, like the "honest umpire" of which Chief Justice John Roberts spoke during his confirmation hearings, judges are obliged by their job descriptions to call balls and strikes and, sometimes, call someone out and someone else safe at the plate.

    But it's entirely possible to be a smart, hard-working, dedicated professional, and a compassionate, wise human being — and yet to lack, or find it hard to summon, the ability to tell people: "Tough luck, I've decided that you lose."

    So it was that in the late fall of 1987, I was a Baker Botts senior associate sitting second-chair in a state-court securities fraud jury trial that had already run for six full weeks. The first-chair partner — a superb trial lawyer named Joe Cheavens — and I were very well prepared for the trial, and we had been eager to see it move briskly. Our opposing counsel, by contrast, was very smart and exceedingly clever, but he and his team were not very well prepared when the trial started. With each passing week of trial, however, as our opponent fumbled around putting on his case, our amiable and indecisive judge gave him the time to figure out what his case ought to be, so that his lack of preparation was becoming less and less of a liability. And although she was certainly trying to be fair, the judge had already reversed herself on several key rulings, and then had reversed herself at least once and sometimes twice again on some of them. Our team was beginning to show serious bruises around the head and shoulders, and the trend was decidedly unfavorable.

    Our corporate client's intentions and motivations in complicated past transactions were under scrutiny, so among the key witnesses at trial were the deal lawyers who had advised our client in those transactions. One such witness, fearing (with good reason) the possibility that his and his firm's actions might become the subject of later malpractice claims, brought along one of his partners — a "Litigator," a young woman probably five or so years senior to me — to sit in the audience to keep watch. And Joe Cheavens was indeed doing his considerable and very best to show that Mr. Deal-Lawyer had been conflicted, incompetent, or worse in his work for his former (and our current) client.

    During a break in Mr. Deal-Lawyer's testimony, I looked out one of the tiny rectangular windows in the doors leading from the courtroom to the outer hallway, where I spied the "Litigator" sitting on a hallway bench. I noticed that she was engaged in earnest conversation — with two of our jurors.

    Quick! Find the bailiff! Quick! Have the bailiff find the judge! Quick! Ask the judge to direct the bailiff to snag the "Litigator" away from those jurors and into the judge's chambers. Grab the court reporter, then grab opposing counsel, for a frantic huddle. "What on earth were you talking about with those jurors just now?" demanded the judge.

    "Well," said the "Litigator," "the jurors all knew from the introductions Your Honor made that I was a litigation partner at Mr. [Deal-Lawyer]'s firm. And so one juror was just listening, but this other juror approached me with a legal problem he had. See, he's an officer in his Knights of Columbus chapter, and they'd contracted for a dance band to play at one of their functions, but then the band didn't show up. So he was asking me about the various elements of breach of contract, and fraud in the inducement, and measures of damages —"

    "You're aware that those are all legal principles," interrupted the judge, "on which I'll be charging this jury in this case?"

    "I ... I suppose so, but —"

    "And in the midst of Mr. Cheavens' cross-examination intended to destroy the credibility of your partner Mr. Deal-Lawyer, you've seen fit to offer legal advice to two of our jurors on those very issues?" asked the judge.

    "Well, then, I ... I guess I really shouldn't have done that." She sniffed. "And I guess that I really shouldn't have told that juror that because I'm a good Catholic like him, my firm and I would take on his Knights of Columbus chapter's case against the dance band as a pro bono matter, should I?" finished the "Litigator" (lamely).

    Duh.

    The mistrial motion, and the ruling granting it, were foregone conclusions. Of all the trial judges I've seen in my career, this judge had the worst judicial temperament — which is to say, the greatest reluctance to rule, and to declare one side or the other a winner and the other a loser — of any judge that I'd seen before or that I've seen since. But pushed by these extraordinary circumstances into making a definitive ruling, this good-hearted, intelligent, well-meaning, and unfortunately un-judicial woman nevertheless gathered her resolve and did that which her duty required.

    She didn't grant the mistrial because she was afraid of being reversed by the appellate courts if she didn't. (Although she would have been.) She granted the motion because it was the right thing to do, even if it was an extremely difficult ruling to make. The weight of her robes — the weight of authority implied by those robes, the accumulated force of the system revering the rule of law of which she was an intrinsic part — compelled her to reach that result. "You've got to start over," she told the plaintiff's counsel — much against her personal preference, which was to avoid controversy and to avoid resolving controversies.

    "But — but — but —" sputtered our opponent, who certainly knew how the trial had been trending, "it wasn't my fault!"

    "That's true," said Her Honor.

    "And that will mean six weeks of work, all that time, all those legal fees and expenses on both sides — all wasted!"

    "That's true too," said Her Honor, "And I hate to say it, but: That's tough."

    Collapse
Load More