Will the Supreme Court Get Involved With Trump’s Legal Woes?

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Keeping up with Donald Trump’s court schedule is a dizzying task, since he faces two federal trials, a criminal trial in Georgia, and two separate civil and criminal trials in New York. (Oh, and he’s running for president.) To make things easier, we’ll be recapping the biggest Trump trial news at the end of each week. 

An appeals court upheld the gag order on Trump in his election interference case, though the court modified it so it’s easier for the former president to publicly comment on people involved. In the meantime, Trump is doubling down on his attempts to argue that he can’t be tried for interfering in the 2020 election because of presidential immunity, while Jack Smith is drawing on Trump’s history of making baseless voter fraud claims to build his case. Here’s what you might have missed this week.

An appeals court ruled on Friday that significant portions of Judge Tanya Chutkan’s gag order—she’s overseeing the Department of Justice’s election interference case—on Trump could stay in place, while some parts needed to be pulled back. That’s because the panel felt Chutkan’s order “sweeps in more protected speech than is necessary.”

The three-judge panel upheld the part of the order that banned Trump from publicly commenting on any known or potential witnesses, but tweaked it so that the order only applied if Trump was commenting about their participation in the DOJ’s case. Chutkan had also banned Trump from publicly criticizing special counsel Jack Smith, which the appeals court struck down. Now, Trump will be allowed to speak freely about Smith in public and criticize his indictment.

Lastly, the appeals court ruled Trump is only banned from publicly commenting on members of Smith’s team, relatives of lawyers involved in the DOJ’s case, or court staff, if those statements are likely to “materially interfere” with the DOJ’s work in the election interference trial—that may sound familiar: Judge Arthur Engoron, overseeing Trump’s New York civil fraud trial, also issued a gag order that banned Trump from attacking his court staff.

Trump’s lawyers are expected to again appeal this new decision all the way up to the Supreme Court, but it remains to be seen whether they’ll decide to take it up. Writing for Slate, Robert Katzberg argues it’s a golden opportunity for the court to recover some of its soiled reputation.

Speaking of the Supreme Court—there was a new development this week in another matter that Trump’s team has vowed to pursue all the way to the nation’s highest court, if need be.

Trump’s legal team has been trying to get Jack Smith’s election interference case dismissed on the grounds that, as president at the time, Trump had “absolute immunity” from prosecution for actions committed in the immediate aftermath of the 2020 election. His lawyers filed an appeal arguing as much, which the judge in that trial firmly rejected last week. Just because he was president at the time, Judge Tanya Chutkan wrote, “that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” But Trump isn’t leaving it there—his lawyers filed a request to put the proceedings on hold while they appeal Chutkan’s decision.

It can take significant time for an appeal to work its way up through the courts, and this could delay the start of the federal election interference trial. That trial had been scheduled to start on March 4—obviously not great timing for Trump, since it’s in the middle of primary season, just one day before Super Tuesday.

The next step is for a three-judge appeals court panel to be named, at which time a new date will be set for the appeals process to move forward. It’s unclear how long the panel will take to weigh in, since they’ll be considering a pretty weighty question: Can a former president be shielded from criminal prosecution, even if he’s no longer in office? If they side with Chutkan, and Trump’s team appeals that, that’s when the Supreme Court could decide to get involved. Trump’s lawyers have already signaled they’re planning to take this all the way to the highest court, though it’s always possible the justices will decide to sit this one out.

The high court considered a similar question under Republican President Richard Nixon, when they considered whether presidents could be shielded through executive privilege when responding to subpoenas. (The court ultimately decided that they can’t be.) We’ll be keeping an eye on that three-judge panel!

Mike Pence is on the witness list for the Georgia election interference case, CNN reported, citing multiple people who’ve viewed the list. In the lead-up to this indictment, Georgia prosecutors didn’t interview Pence, but he did cooperate with the Department of Justice in its similar election interference case.

Pence has not been charged in any of the cases Trump is facing, but in the weeks following the 2020 election, Trump’s lawyers and advisers tried to convince him to play a key role in the fake electors scheme: They wanted him to refuse to certify the results of the 2020 election. During those meetings, Pence took “contemporaneous notes,” which he ended up handing over to the DOJ, and they reportedly showed the former vice president gently trying to shut down Trump’s plan.

Georgia prosecutors’ witness list names almost 200 people, including Trump’s ex-Attorney General Bill Barr, former Justice Department officials Jeffrey Rosen and Richard Donoghue, and former aide Steven Bannon.

The special counsel’s office filed fresh court documents in their election interference case, offering a sneak peek into their strategy. Smith wants to prove Trump has a history of spreading lies about U.S. elections, pointing at old tweets he made that suggested there was voter fraud during the 2012 and 2016 presidential elections—even though he won in 2016.

“As early as November 2012, the defendant issued a public tweet making baseless claims that voting machines had switched from then-candidate Romney to then-candidate Obama,” wrote Molly Gaston, senior assistant to the special counsel. “During the 2016 presidential campaign, the defendant claimed repeatedly, with no basis, that there was widespread voter fraud.”

Smith is arguing that this proves Trump had a “common plan” to claim fraud whenever he didn’t like the outcome of an election and serves as a motive for his fake electors scheme.

To further make his point, Smith also noted Trump’s history of being noncommittal on a peaceful transfer of power. During a news conference in September 2020, two months before the presidential election, Trump famously refused to agree to a peaceful transfer of power and began sowing doubt about mail-in ballots. “We want to have—get rid of the ballots and you’ll have a very trans—we’ll have a very peaceful—there won’t be a transfer, frankly; there’ll be a continuation. The ballots are out of control. You know it,” said Trump.

Similarly in 2016, during a presidential debate against Democrat Hillary Clinton, when Trump was asked whether he would accept the results of that election, he only said he would “look at it at the time.”

The defense has been presenting its case in the former president’s New York civil fraud trial. This week, Eli Bartov, an accounting professor at New York University’s Stern School of Business, testified that, based on his evaluation of Trump’s financial documents, “There is no evidence whatsoever for any accounting fraud.”

Bartov acknowledged there were errors in those documents, including an overinflated valuation of Trump’s apartment in Trump Tower between 2011 and 2012, but that difference did not amount to fraud. “There is no evidence here of concealment,” said Bartov. “It’s true this is an error. But it is no fraud.” Instead, Bartov said it was a calculation error that should be blamed on Trump’s external accounting firm for not catching it. Eric Trump, the former president’s second son, was also scheduled to testify this week, but the defense decided to cut his testimony.

Next week, Trump is expected to take the witness stand again in this case, this time testifying for his defense.