Trump Is Testing a Controversial Legal Strategy

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. 

After taking a brief hiatus for the Thanksgiving holiday, we are back to tracking all things Trump trials. This week, the former president pursued a controversial legal strategy in his federal election interference case, and experienced a major setback in his bid to eliminate a gag order in his New York civil fraud trial while also fighting to eliminate a separate gag order in his federal election interference case.

In the Department of Justice’s election interference case, the former president’s lawyers are asking Judge Tanya Chutkan if they can argue that Trump had a right to question the 2020 election results—which would essentially allow them to use this trial to relitigate the fairness of the last presidential election. That’s despite Trump’s own Attorney General Bill Barr declaring there was no evidence of widespread voter fraud, and top federal agencies joining together to declare that the Nov. 3, 2020, election was “the most secure in American history.” The National Intelligence Council also published a declassified report that found no evidence of any foreign actor trying to alter any technical aspect of the voting process during the 2020 election.

In order to make this argument, they’ve also asked Chutkan to compel federal prosecutors to provide heaps of additional discovery material, including any information about how federal officials evaluated cyberattacks during the election time period and any interference attempts by foreign governments.

This strategy fits in with the Trump camp’s overall argument that the indictments he faces are purely political—even though the DOJ appointed Jack Smith, an independent special counsel, to handle the election interference investigation. Federal prosecutors are expected to respond to the Trump team’s request this month, before Chutkan will officially issue her decision.

Chutkan is also due to respond to a separate motion filed by Trump’s lawyers that argues he should receive “absolute immunity” from Smith’s election interference indictment because the actions in question are related to his time in the White House.

Also in the DOJ election interference case, the ongoing saga of Trump’s gag order took a new turn last week.

To recap: Back in September, special counsel Jack Smith asked for a narrow gag order in order to protect witnesses and others involved in the case from being harrassed by Trump partisans. Prosecutors highlighted that, days after Trump was indicted, he took to Truth Social and wrote: “If you go after me, I’m coming after you!” They argued it was a thinly veiled threat to prosecutors, witnesses, jurors, or any force that plays a role in Trump’s legal challenges. Judge Chutkan issued a gag order preventing Trump and his team from speaking publicly about prosecutors, court staff, or witnesses involved in this case.

It did not last long, however, because Trump appealed the gag order and asked Chutkan for a stay pending appeal. She agreed, and during that pause, Trump struck again. He posted a pretty threatening message about his former chief of staff, Mark Meadows, prompting federal prosecutors to run back to Chutkan and ask for the gag order to be reinstated, arguing Trump’s words amounted to witness intimidation.

Chutkan agreed, and the gag order was back on. Trump’s team continued with their appeal, resulting in it being put on hold again—and last week, right before the Thanksgiving holiday, the federal appeals court charged with determining the future of the gag order held a hearing to consider it.

Lawyers for the former president argued that Trump’s First Amendment rights were being targeted by the DOJ, restricting his “core political speech.” But the three-judge panel seemed skeptical that Trump was being treated differently than any other criminal defendant. Judge Bradley Garcia noted that as the 2024 campaign picks up next year, Trump’s rhetoric could escalate even more. “The atmosphere is going to be increasingly tense. Why does the district court have to wait and see?” he said.

The appeals court pressed federal prosecutors, too, about the importance of balancing defendants’ free speech rights, and noted finding a middle ground requires a “careful scalpel” versus “skewing the political arena.”

The appeals court is still deliberating, and it’s unclear how long it will take to come to a decision.

Judge Arthur Engoron, who is overseeing New York Attorney General Letitia James’ civil fraud trial against Trump and his businesses, placed a gag order on the former president that prevented him from publicly speaking about Engoron’s court staff. Trump proceeded to sue Engoron for the gag order, and it was temporarily lifted by an appellate judge—until Thursday, when the New York appeals court determined the gag order could remain in place.

Trump has been found to be in violation of Engoron’s gag order twice now, earning $15,000 in fines. After Thursday’s appeals court decision, Engoron said he intends to “enforce the gag orders rigorously and vigorously.”

Weeks after some of Trump’s co-defendants—Sidney Powell, Jenna Ellis, and Kenneth Chesebro—accepted plea deals with Georgia prosecutors, unnamed sources told the Guardian that the former president, his chief of staff Mark Meadows, and lawyer Rudy Giuliani will not be getting deals of their own.

That’s because, for now, Georgia prosecutors want to force these three to trial and hopefully get other co-defendants to become cooperating witnesses against Trump in their election interference case. However, Steve Sadow, the former president’s lawyer in this case, told the Guardian that Trump was “uninterested in reaching a deal” and that any offer would be “laughable because we wouldn’t accept anything except dismissal and maybe negotiate the terms of that office’s apology to President Trump and the American people.”

As for co-defendants Meadows and Giuliani, no plea deal is a deeper blow. Meadows reportedly managed to secure an immunity deal in the federal government’s election interference case, but negotiations in the Georgia indictment have not gone as smoothly. The former chief of staff testified about his role in the fake electors scheme back in September in hopes that it would boost his chances of having his case moved to federal court—it didn’t work. Instead, his testimony may have given prosecutors more material to use against Meadows in court. Prosecutors introduced emails that indicated Meadows was involved in coordinating new Trump-aligned electors from different states as part of the fake electors scheme.

Giuliani’s spokesperson told the Guardian they never expected to receive a plea deal in this case.

Eastman, one of 18 co-defendants in the Georgia election interference case, is asking the court to have his case separated from Trump’s and tried earlier. “Defendants who do not have lifetime United States Secret Service protection and who are not running for election to an office can exercise and have their right to a jury trial completed within 2024,” Eastman’s attorney, Wilmer Parker III, said in a court filing.

Fulton County District Attorney Fani Willis has requested an Aug. 5, 2024, trial date and a plea deadline of June 21. She wants to try all defendants together, but Eastman’s lawyer says waiting that long “is both arbitrary and capricious.”

Eastman is a lawyer and academic who advised Trump in the aftermath of the 2020 election. He has pleaded not guilty to nine counts, including conspiracy and filing false documents.

The Trump campaign’s fake electors scheme has so far led to criminal indictments—one brought by the DOJ and the other by Georgia prosecutors—and a look at former Trump lawyer Kenneth Chesebro’s schedule suggests more may be coming. He was Trump’s co-defendant in the Georgia case (where he pleaded guilty and accepted a plea deal), and there’s been speculation that he’s one of the six unnamed co-conspirators in the DOJ’s indictment.

Anonymous sources told the Washington Post and CNN that Chesebro is set to talk with  investigators in Nevada and Arizona—both states that launched investigations into the fake electors scheme this year. Chesebro also filed a request with a Georgia judge asking to travel to Nevada, Arizona, and D.C., since his movement is currently restricted under the terms of his plea deal with prosecutors.

One unnamed source told the Post that Nevada officials have even offered Chesebro an agreement where they have promised not to charge him in exchange for truthful testimony. In Arizona, investigators are reportedly not focusing on any out-of-state figures who may have played a role in the fake electors scheme, instead trying to nail down locals who tried to serve as the state’s fake Trump-aligned electors.