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On the docket
In a pair of courtrooms 750 miles apart on Thursday morning, two judges’ decisions could go a long way in determining which criminal cases Donald Trump will face before the 2024 election – and when he’ll face them.
The former US president plans to be in New York City, where Justice Juan Merchan has scheduled a Thursday hearing where he’s expected to finalize a start date for what will now likely become Trump’s first criminal trial on charges that he falsified business records to cover up his alleged affair with adult film star Stormy Daniels and influence the 2016 election.
That trial is currently slated to begin on 25 March, and now appears likely to proceed as planned, in large part because Trump’s team has successfully delayed his criminal trial in Washington DC focused on his role in the events of and leading up to January 6. Since the Washington trial’s start date is uncertain until the supreme court decides whether to review Trump’s presidential immunity claims (more on that below), that clears the calendar for this New York trial.
Merchan will also hear a number of arguments by Trump’s lawyers seeking to toss out the case, including allegations that Manhattan district attorney Alvin Bragg is politically biased against Trump and a claim that the 33 felony charges Trump is facing should be reduced to misdemeanors on technical grounds.
But Trump had trouble choosing which courtroom he wanted to be in. He had originally planned to be in Atlanta for a bombshell hearing that may well determine whether the criminal case that he allegedly conspired to illegally overturn Georgia’s 2020 election results will happen before this fall’s presidential election.
Judge Scott McAfee, who is presiding over the case, wants to hear evidence on whether Fulton county district attorney Fani Willis and special prosecutor Nathan Wade should be disqualified because of their romantic relationship.
Michael Roman, of Trump’s co-defendants, has argued that details of the relationship indicate a conflict of interest. Willis and Wade have admitted to having an affair, but argue that should have no bearing on the case. On Monday, McAfee refused (for now) to quash subpoenas from Roman’s attorney that could force Wade and Willis to testify– but said he would make a determination after hearing testimony on Thursday from Wade’s former divorce attorney.
McAfee announced Tuesday that he’s set aside both Thursday and Friday for the evidentiary hearing – a sign he’s expecting to take his time and seriously weigh the issues at hand.
If McAfee forces Wade and Willis from the case, there’s almost no chance that it could take place before this fall’s election because of the procedures involved in appointing a replacement prosecutor. But if he decides to let them stay on, there’s still a chance this trial could go forward this summer.
Briefs
● Trump’s lawyers asked the US supreme court on Monday to keep the Washington criminal case against him over his attempts to overturn the 2020 election loss on hold – and overrule last week’s ruling by an appeals panel that would have accelerated the timetable on which the supreme court could rule on Trump’s claims that presidential immunity protects him from prosecution. These claims are legally dubious and have already been dismissed by lower court judges, but his goal is to delay the trial for so long that it can’t take place before the election.
The supreme court has three main options: they could dismiss Trump’s lawyers’ appeal out of hand and let a lower court decision stand, which would put the trial back in motion; they could hear the appeal on an expedited basis, which could allow enough time for the trial to still happen this summer; or they could take up the appeal but not rush it, which would in essence derail the trial itself.
In a response brief filed late on Wednesday, Special Counsel Jack Smith urged the supreme court to let the trial proceed or, if they were going to review the matter, to hear it on an expedited basis that would still let the trial take place in late spring or summer. “He has no entitlement to a further stay while seeking discretionary review from this Court,” the brief reads. “Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict.”
● Judge Aileen Cannon, the Trump-appointed judge who is now overseeing his criminal trial in Florida over his alleged mishandling of classified documents at Mar-a-Lago, ordered prosecutors to provide Trump’s team access to sealed documents pertaining to a series of threats against a witness who could testify at trial against Trump. Smith’s team had objected to the request, but complied with the ruling over the weekend.
And on Monday, she held closed hearings to consider whether Trump’s lawyers should have access to reams of classified documents that Smith’s team has redacted. Trump himself made a surprise appearance.
Will this matter?
Guardian US columnist Moira Donegan argued that during last week’s oral arguments at the US supreme court to determine whether Trump can remain on the ballot in Colorado, the justices “chose to dismiss the considerable evidence that the framers of the 14th amendment intended section three to be used precisely to protect the republic from a figure like Trump. They attend themselves instead not to the lessons of the past, but to the incentives of the present.”
Her conclusion: “If section three is still the law, and if insurrectionists are still barred from taking federal office, then how can this law be enforced? And that’s where the court, in its apparent effort to avoid having to take much of a stand on the issue, seems to have planted a loaded gun. Because if states can’t enforce the ban on insurrectionists in office, then only Congress can. And where would Congress do that? At the certification of the electoral votes – on 6 January 2025.”
Guardian US columnist Sidney Blumenthal had a similar warning of a “constitutional crisis” and a potential “disastrous unraveling” of the US itself if the court rules as expected. “The justices’ frantic effort to escape responsibility for upholding the plain language of the 14th amendment in the name of saving the country from a hypothetical political crisis would potentially create a very real constitutional one,” he wrote.
And Guardian US chief reporter Ed Pilkington takes a look at How to Steal a Presidential Election, a new book from Harvard professor Lawrence Lessig and Stanford professor Matthew Seligman that argues the US is “in a profoundly dangerous moment” and that the rules governing presidential elections make them vulnerable to challenge.
What’s next?
Today and Friday Hearing in Fulton County, Georgia, on whether Willis and Wade should be removed from the case.
Today Trump will be in attendance in New York as Judge Merchan hears his attorneys’ arguments on why he should toss Bragg’s case – and likely schedules the trial’s start date.
Friday? We’re still waiting on Judge Arthur Engoron to issue his ruling on Trump and his business’s punishment. The New York Times reported that he is expected to issue that ruling on Friday. Engoron has already ruled that Trump and his businesses committed fraud; all that he has left to decide are the penalties. Prosecutors have requested that Trump be barred from doing business in the state of New York and assessed $370m in fines.
1 March A scheduling hearing in the Florida national security documents case will determine if the trial will go forward on the 20 May start date that Judge Cannon set back in November.
Cronies & casualties
The Guardian’s Peter Stone checks in on former Trump White House chief strategist Steve Bannon, who while waiting to see if a federal appeals court overturns his obstruction of Congress conviction, has been “pushing a tidal wave of election disinformation on his War Room podcast to help Trump win the presidency again and promote a Maga-heavy policy agenda as Trump and his allies plot out authoritarian-style plans for a second presidency”.
Conservative legal super-activist and Federalist Society co-chairman Leonard Leo and his well-financed network, who have been implicated in ethics complaints regarding Justice Clarence Thomas, have close ties to several of those who filed amicus briefs arguing that the US supreme court shouldn’t allow Colorado to remove Trump from the ballot, reports the Guardian’s Rachel Leingang.
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