This week saw several developments in the on-going effort to bring Donald Trump to justice.
To start with the most frivolous, Trump is attempting to remove the New York criminal fraudulent business records case to federal court. Given that this attempt is coming post-trial, the odds of the case being removed are almost certainly less than none. Additionally, the attempted filing was rejected for procedural defects. It’s not clear that Trump can remedy the procedural defects given that this filing is very late in the case. In any case, the trial court is likely to take up and then deny Trump’s frivolous motion for new trial and then proceed to sentencing. While Trump is attempting to delay the sentencing, he has presented no legal reason why his criminal case should be treated differently from ordinary defendants other than a non-existent “presidential candidate” exception to the standard procedure. As of today, a decision on Trump’s motion for new trial (almost certainly a denial) is due on September 16 with sentencing to occur on September 18 unless the motion for new trial is granted or the trial court decides to postpone the sentencing.
The other three are more significant but routine.
In the federal election interference case, the U.S. Supreme Court had remanded the case after creating an ahistorical set of rules governing presidential immunity. In that ruling, the Supreme Court divided immunity into an “always” immune basket for “core” presidential functions (like consulting with cabinet) members, a “maybe” immune basket for non-core official functions, and a never immune basket for personal acts. While that ruling left a lot of questions for the trial court to address, some of the allegations in the original indictment did include acts which the Supreme Court characterized as being core functions for which a lawless President had immunity from criminal prosecution. In response, prior to the trial court taking up a renewed motion to dismiss, the special prosecutor obtained a superseding indictment from the grand jury. That indictment, at its core, deletes those allegations related to those core functions and leaves the rest of the charges intact. That action is what any competent and responsible prosecutor would do. The trial judge will now have to decide if there are any parts of the revised indictment to which presidential immunity applies.
The other action involves the federal obstruction of justice/possession of classified documents case in Florida. Over the summer, the Trump-appointed judge hearing the case issued the latest in her mind-boggling pro-Trump rulings. That ruling dismissed the case because the special prosecutor in the case had not been Senate confirmed. Motions to dismiss are rarely granted because, like this one, they are generally meritless. And because prosecutors usually think that their charges are valid, they usually appeal such rulings.
This week, the special prosecutor filed their brief (the written part of the argument) with the Eleventh Circuit Court of Appeals. The brief dismantled the legally flawed judgment which was contrary to past appellate rulings on the issue.
The basic issue involves the appointment clause and how the federal government is structured. The Constitution recognizes several valid means of appointment of executive branch employees. Generally speaking officers require Senate confirmation, but Congress can authorize the appointment of “inferior officers” by the President or by department heads. Generally speaking, courts have tended to use an “I know it when I see it approach” to what qualifies as a principal officer. And that distinction gets tricky when talking about the Department of Justice and attorneys working for the federal government.
The Department of Justice is frequently divided into “main” Justice and the U.S. Attorney’s offices. Main justice are the folks in D.C. At “main” justice, the following individuals are subject to senate confirmation: 1) the Attorney General; 2) the Deputy Attorney General; 3) the Solicitor General; 4) the Associate Attorney General; and 5) the heads of the twelve divisions (Assistant Attorneys General). But there are other “trial lawyers” and deputy solicitor generals who work under these sixteen people. While, ultimately, the decision of these people are subject to control by the sixteen senate-confirmed individuals, the trial lawyers have a lot of day-to-day independence in terms of pursuing the investigations and cases that are assigned to them.
At the more local level, the federal court system is divided into ninety-four districts. (Every territory has a district, and every state has at least one district but large states (e.g., New York, California, Texas) have multiple districts. Ninety-two districts have a U.S. Attorney’s Office (with the other two districts sharing a U.S. Attorney). At the head of each office should be a Senate-confirmed U.S. Attorney, but, often, the U.S. Attorney’s position is vacant and the office is headed by an acting U.S. Attorney who is not Senate-confirmed. Underneath the U.S. Attorney are multiple Assistant U.S. Attorneys (including some state prosecutor who are specially designated to allow them to bring a case in either state or federal court). While Assistant U.S. Attorneys answer to the appointed U.S. Attorney, and each office ultimately answers to main justice, there is still a lot of discretion over individual investigations and cases. There were over 60,000 criminal cases filed in 2023. That comes out to over 600 cases per office. Needless to say, the head of the Criminal Division in main Justice does not have the ability to review every case. Even in the U.S. Attorney’s Office, the U.S. Attorney might briefly review a case before approving its filing, but nobody can review everything that happens in every case.
In the past, when there was an independent counsel statute, the U.S. Supreme Court approved allowing a judicial panel appoint the independent counsel. Since that statute has expired, special prosecutors have been designated by the Attorney General and Deputy Attorney General and answer to those two officials. There is no good explanation in the trial court decision why the Attorney General can’t hire a special trial attorney and designate them to serve as a special prosecutor given that statutes seem to permit that practice. The only explanation seems to be that this case is different from other special prosecutor cases. But the only reason that it is different is the defendant, and there is nothing in the statutes that say that the prosecution of a former president creates different rules. Quite simple, the statutes authorize the Attorney General to appoint special assistant U.S. Attorneys and assign them to specific offices as they see fit including designating assistant U.S. attorneys to handle multi-district cases. There is nothing in the statutes about the status of being a Senate-confirmed U.S. Attorney versus being a non-confirmed assistant U.S. Attorney that gives the ability to handle multi-district cases.
The last case with developments is the civil fraud appeal. The New York Attorney General’s Office has filed its brief (responding to the Trump Organization’s brief). Most experts think that the appellate courts may adjust the penalty imposed, but there is nothing in the filings that reflect anything more than a disagreement about what the evidence proved. That generally is not a basis for a successful appeal. Oral argument is set for the end of the month. Whether we get an opinion before November is unclear.
The cases are currently at different places. As noted above, it is more likely than not that we will have a sentence imposed in the New York falsifying business records case. We will have oral argument and, maybe, an appellate decision in the civil fraud case. We will have additional filing but no argument or decisions in the classified documents appeal over the next two months (and the same is likely true in the Georgia election interference case). Lastly, if is unclear what the schedule will be in the federal election interference cases. At the present time, the expectation is that we will get a sentencing decision in the New York case this month. For the remaining cases, other than some rulings on some issues in the federal election interferenc case, nothing major is expected before the election.
