Last Week In Lawfare Land: Witness Testimony, Another SCOTUS Case, And A New Indictment Drop
The lawfare crusade against former President Donald Trump has taken center stage in the U.S. Supreme Court and in New York state court this week. The first criminal trial against President Trump is now underway in New York City, while the U.S. Supreme Court also held oral arguments on whether President Trump is immune from prosecution in Special Counsel Jack Smith’s criminal case stemming from the 2020 election.
As these legal crusades proceed against President Trump, the Democratic Attorney General of Arizona has now targeted Trump’s former Chief of Staff Mark Meadows, Rudy Giuliani, and 16 others with indictments related to the 2020 election. The indictments were announced on Thursday, April 25.
Here’s the latest information you need to know about each case.
Read our previous installments here.
Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment
How we got here: In this New York state criminal case, Manhattan District Attorney Alvin Bragg — who The New York Times acknowledged had “campaigned as the best candidate to go after the former president” — charged former President Donald Trump in April 2023 with 34 felony charges for alleged falsification of business records. Trump’s former attorney Michael Cohen paid pornographic film actress Stormy Daniels shortly before the 2016 presidential election as part of a nondisclosure agreement in which she agreed not to publicize her claims that she had an affair with Trump (who denies the allegations). Nondisclosure agreements are not illegal, but Bragg claims Trump concealed the payment to help his 2016 election chances and in doing so was concealing a “crime.” Judge Merchan, a donor to Biden’s campaign and an anti-Trump cause in 2020, has issued a gag order on President Trump generally prohibiting him from publicly speaking on possible jurors, witnesses, and other personnel in this case.
Latest developments: The trial began on April 15, and jury selection was completed on Thursday, April 19. Lawyers for both sides made opening statements on Monday, and the prosecution’s first witness, David Pecker, began his testimony on Thursday. Pecker is a former publisher of the National Enquirer, and he allegedly helped “catch and kill” news stories about President Trump’s previous alleged affairs. Despite Pecker’s admitted history of publishing favorable stories about Trump because they were “mutually beneficial” in that they helped sell his tabloids, he claimed that his treatment of Stormy Daniels’ story was intentionally designed to help the Trump campaign.
As of Thursday, Judge Merchan has issued orders to show cause for 14 potential violations of the gag order he imposed on former President Trump.
Legal scholars continue to opine that this case is “on shaky ground” and that the evidence demonstrates that President Trump has “compl[ied] with the law and did not have the requisite criminal intent.”
Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results
How we got here: The Georgia state criminal case is helmed by District Attorney Fani Willis and her team of prosecutors — which until recently included Nathan Wade, with whom Willis had an improper romantic relationship. Willis charged Trump in August 2023 with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. President Trump is joined by 18 co-defendants, including Rudy Giuliani, Mark Meadows, Sidney Powell, and others. Some of President Trump’s co-defendants have reached plea deals; others have petitioned to have the case removed to federal court, each attempt of which has been denied. A trial date has not yet been set, though prosecutors have asked for a trial to begin on Aug. 5, just a few short weeks after the Republican National Convention in Milwaukee.
Latest developments: On Wednesday, President Trump’s legal team filed a motion to dismiss two charges related to filing false documents. The motion stated, “The alleged conduct which the state is attempting to prosecute in counts 15 and 27 is addressed by the federal false statement statute and thus jurisdiction is exclusively vested in federal court.” The motion is still pending before the court.
Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents
How we got here: In this federal criminal case, special counsel Jack Smith and federal prosecutors with Biden’s Justice Department charged former President Trump in June 2023 with 40 federal charges related to his alleged mishandling of classified documents at his Mar-a-Lago residence. The trial is set to begin on May 20, 2024, though this date is expected to be pushed back. Additionally, venue matters: The trial is currently set to take place in Fort Pierce, Florida, in a locality that heavily backed President Trump in the 2020 election. If that remains unchanged, the demographics of the jury pool may result in a pro-Trump courtroom.
Latest developments: On Monday, a trove of documents unsealed by Judge Aileen Cannon included allegations from the Trump legal team that the special counsel’s lead prosecutor had threatened to sabotage the judicial nomination of a Trump staffer’s lawyer unless he got the staffer to turn on the former president, and that the Biden White House was involved in the prosecution’s early stages.
Washington, D.C.: Prosecution by Biden DOJ for Jan. 6 Speech
How we got here: In this federal criminal case, special counsel Jack Smith and federal prosecutors charged former President Trump in August 2023 with four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. President Trump’s lawyers have argued that immunity extends to actions taken by a president while acting in his official capacity and that, in any event, the First Amendment protects his right to raise legitimate questions about a questionable election process.
Latest developments: This case is currently stalled while awaiting a ruling from the Supreme Court on former President Trump’s immunity claim. The Supreme Court held oral arguments on Thursday, April 25. During oral arguments, the justices focused heavily on whether they should draw a distinction between President Trump’s official actions (i.e., his presidential duties) and his private actions. In this case, President Trump is arguing that his actions related to the 2020 election constituted actions in his official capacity as president, which he contends would provide him immunity from prosecution.
Notably, the Republican-appointed justices, who comprise a 6-3 majority on the court, asked questions that signaled their readiness to let the lower courts first evaluate this question, which could take many months, or even years, to resolve. This would almost inevitably delay Special Counsel Jack Smith’s trial until after the November 2024 election.
It is unclear when the Supreme Court will issue a final ruling on President Trump’s immunity claim; however, a ruling by late June is probable.
New York: Lawsuit by A.G. Letitia James for Inflating Net Worth
How we got here: In this New York civil fraud case, Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump in September 2022 under a civil fraud statute alleging that he misled banks, insurers, and others about his net worth to obtain loans, although the loans have been paid back and none of the parties involved claimed to have been injured by the deals. Following a no-jury trial, Judge Arthur Engoron — whom Trump’s lawyers have accused of “astonishing departures from ordinary standards of impartiality” — issued a decision on Feb. 16, 2024 ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond. The appeals court plans to hold hearings on the merits of the full case in September 2024.
Latest developments: On Monday, the parties reached an agreement that determined Trump’s $175 million bond will stand. Attorney General James had challenged the “sufficiency” of President Trump’s posted bond, which was required while his $454 million civil judgment is on appeal.
Maricopa County, Arizona: Indictments of Trump Affiliates Meadows, Giuliani, and 16 Others
How we got here: On Wednesday, April 24, Democratic Attorney General of Arizona Kris Mayes announced the grand jury indictments of former President Trump’s Chief of Staff Mark Meadows, Rudy Giuliani, Boris Epshteyn, and 15 others stemming from the 2020 election. President Trump has not been charged in this case, but he was named as an “unindicted coconspirator.”
The indictment identified 11 Republicans who allegedly sent false documents to Congress asserting that President Trump won the state of Arizona in the 2020 election. The defendants are also accused of attempting to pressure the Arizona Legislature, then-Arizona Gov. Doug Ducey, and the Maricopa board of supervisors to overturn the results of the 2020 election in Arizona.
Legal commentators, including one from The Federalist, have observed that the “fake electors” narrative is baseless given the established history of presidential campaigns preparing alternate electors, including the John F. Kennedy campaign in Hawaii in 1960.
Latest developments: The indictment was released on Wednesday April 24.
Steve Roberts is a partner and Oliver Roberts is an associate with Holtzman Vogel Baran Torchinksy & Josefiak PLLC. They can be reached at sroberts@holtzmanvogel.com and oroberts@holtzmanvogel.com.
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