Trump legal news brief: Citing witness death threats, Jack Smith asks Judge Cannon to reconsider ‘clear error’ in ruling
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Government prosecutors on special counsel Jack Smith’s team file papers asking Judge Aileen Cannon to reconsider her “clear error” in granting a request from lawyers for former President Donald Trump to reveal the identity of certain witnesses in the classified documents case. Here are the latest legal developments involving the Republican frontrunner seeking to be reelected to the White House in 2024.
Jan. 6 election interference
Smith asks Cannon to reconsider ‘clear error’ in ruling in classified documents case
Key players: Special counsel Jack Smith, Judge Aileen Cannon
In court papers filed late Thursday, government prosecutors on Smith’s team asked Cannon to reconsider her ruling that would allow Trump’s lawyers to identify some witnesses in the case by name despite the possible risks doing so would pose to those witnesses, Salon reported.
"That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment, as has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved," prosecutors wrote in the filing.
Citing past court precedent on naming witnesses who faced security risks, Smith’s team said in the filing that Cannon, who was appointed to the federal bench by Trump, “applied the wrong legal standard” and that “reconsideration is warranted to correct clear error."
On Wednesday, Smith’s team revealed the Justice Department had opened an investigation into online death threats made against one of the government’s witnesses. That disclosure, however, was not enough to sway Cannon to keep the identities of other witnesses sealed.
In response to the filing, Cannon paused her ruling from taking effect and asked Trump's lawyers for a response.
If Cannon ends up standing by her earlier ruling allowing the identities of certain witnesses to be revealed, Smith could appeal that decision with the 11th Circuit Court of Appeals.
Why it matters: Legal experts have long noted Cannon’s history of controversial rulings in the case that have benefited Trump. By flagging Cannon’s “clear error” in their latest filing, Smith’s team could be laying the groundwork to try to have her removed from the case.
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Thursday, February 8
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As he prepares to deliver his judgment on the amount of damages former President Donald Trump and his co-defendants must pay for years of committing financial fraud in New York, Judge Arthur Engoron defends his request to lawyers in the case for information about plea deal negotiations for Trump witness Allen Weisselberg on charges he committed perjury during the trial. The United States Supreme Court, meanwhile, seems skeptical about the Colorado Supreme Court’s decision to remove Trump’s name from ballots. Here are the latest legal developments surrounding the former president who hopes to be reelected to the White House in 2024.
New York financial fraud
Judge Engoron defends asking lawyers for details on Weisselberg’s reported perjury plea deal
Key players: Former Trump Organization CFO Allen Weisselberg, Judge Arthur Engoron, Trump lawyers Christopher Kise and Alina Habba, New York Attorney General Letitia James, New York attorney general counsel Kevin Wallace
On Thursday, Engoron defended asking lawyers in the civil trial for any information they might have on whether Weisselberg, one of Trump’s defense witnesses in the case, was in negotiations with prosecutors to plead guilty to having committed perjury on the witness stand, CNN reported.
“I take seriously my obligation to find the facts and determine the truth,” Engoron wrote in a response to Trump’s lawyers.
Weisselberg's answers about his role in misrepresenting the square footage of Trump’s triplex apartment in Trump Tower have come under scrutiny.
On Wednesday, Trump’s lawyers offered no new information about Weisselberg’s reported plea deal negotiations, with Habba telling Engoron that she did not represent him in criminal matters.
Kise dismissed concerns that Weisselberg may have lied during his testimony and called Engoron’s request for information in a media report about a possible plea deal “unprecedented, inappropriate and troubling.”
Engoron seemed to take issue with that combative response.
“You and your co-counsel have been questioning my impartiality since the early days of this case, perhaps because I sometimes rule against your clients. That whole approach is getting old,” the judge wrote.
In his response to Engoron, Wallace wrote that Weisselberg’s credibility had already been proven to be suspect.
“The fact that a defendant who lacks credibility and has already been to prison for falsifying business documents may have also perjured himself in this proceeding or the preceding investigation is hardly surprising,” he wrote, urging the judge to come to a swift decision in the case.
Why it matters: Engoron is preparing to release his final ruling in the $340 million civil fraud trial and could levy staggering fines against Trump, his adult sons and his family business, and prevent them from doing business in the state of New York.
Jan. 6 election interference
Justices skeptical over barring Trump from ballot in Colorado
Key players: United States Supreme Court, Colorado Supreme Court, Trump lawyer Jonathan Mitchell, plaintiff’s lawyer Jason Murray, Chief Justice John Roberts, Justice Brett Kavanaugh
Both liberal and conservative justices peppered Murray with skeptical questions Thursday as the court heard arguments for allowing the decision by the Colorado Supreme Court barring Trump from ballots to stand, Yahoo News reported.
The justices questioned Murray on why a single state should be allowed to block a candidate for a federal office from appearing on a state ballot, and whether that would lead other states to follow suit and block the opposing candidate.
"I would expect that a goodly number of states will say whoever the Democratic candidate is, you're off the ballot, and others for the Republican candidate, you're off the ballot," Roberts said.
Kagan seemed to agree with Roberts, telling Murray, “I think that the question you have to confront is why a single state should decide who gets to be president of the United States."
They also bore down on the interpretation of Section 3 of the 14th Amendment, which prohibits those who have taken an oath of office and later “engaged in insurrection” from holding office again.
“When you look at Section 3, the term ‘insurrection’ jumps out, and the question is, the questions are: What does that mean? How do you define it? Who decides, who decides whether someone engaged in it?” Kavanaugh asked.
Why it matters: If, as seemed likely from Thursday’s arguments, the high court overturns the Colorado Supreme Court’s decision, Trump will have dodged a potential roadblock to his quest of being reelected to the highest office in the land.
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The Daily Beast: Trump bizarrely claims Jan. 6 riot was caused by Nancy Pelosi
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Wednesday, February 7
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Seventeen ethics experts, former prosecutors and defense attorneys filed a legal brief in the Georgia election interference case brought against former President Donald Trump and 18 others in which they argue that a sexual relationship between Fulton County District Attorney Fani Willis and lead prosecutor Nathan Wade does not constitute an ethical conflict in the case. Lawyers for Trump, meanwhile, reiterated their position Wednesday to Judge Scott McAfee that Willis should be disqualified from handling the case. In New York, meanwhile, Judge Arthur Engoron gives lawyers for the state of New York and the defense in the $370 million civil financial fraud trial until 5 p.m. ET on Wednesday to detail what they know about former Trump Organization CFO Allen Weisselberg’s apparent negotiations to plead guilty to committing perjury during the trial. Here are the latest legal developments surrounding the former president looking to be reelected in 2024.
Georgia election interference
Trump says Willis should be disqualified from Georgia case over relationship with prosecutor. Ethics experts disagree.
Key players: Fulton County District Attorney Fani Willis, Judge Scott McAfee, lead prosecutor Nathan Wade, Trump co-defendant Michael Roman
Seventeen ethics experts, former prosecutors and defense attorneys filed a brief late Monday in which they argued that Willis’s romantic relationship with Wade should not disqualify her from proceeding with the prosecution of Trump and the others charged in connection with their efforts to unlawfully overturn the 2020 presidential election results in Georgia, the Atlanta Journal-Constitution reported.
In their brief, the experts wrote: “Disqualifying conflicts occur when a prosecutor’s previous representation of a defendant gives the prosecutor forbidden access to confidential information about the defendant or a conflict otherwise directly impacts fairness and due process owed a defendant. That kind of conflict is not at issue here.”
Roman, Trump and three other defendants in the case have argued that Willis’s relationship with Wade constitutes a conflict of interest and that she should be removed from the case.
On Wednesday, lawyers for Trump reiterated that argument to McAfee, while adding that comments Willis made at an Atlanta church, in which she implied that racism was behind the attacks made against her and Wade, were “improper.”
"The State knows that improper extrajudicial public comments by a prosecutor in the State of Georgia may be dealt with by disqualification,” Trump’s lawyers wrote to McAfee.
In a filing to McAfee last week, Willis acknowledged her relationship with Wade, but denied that it represented a conflict since the two do not share finances, do not cohabitate and began their relationship after Willis had hired him to lead the case against Trump and the other co-defendants.
McAfee has scheduled a hearing on the matter on Feb. 15.
Why it matters: McAfee will have to ultimately decide whether Willis’s romantic relationship has any bearing on a trial that will focus on the extraordinary efforts taken by the defendants in the case to try to overturn the 2020 election results in Georgia.
New York financial fraud
Judge gives lawyers Wednesday deadline to explain whether key Trump witness committed perjury
Key players: Judge Arthur Engoron, former Trump Organization CFO Allen Weisselberg, New York Attorney General Letitia James
Engoron set a Wednesday deadline of 5 p.m. ET for lawyers in the case to detail their knowledge of a New York Times report that Weisselberg had entered into negotiations with the Manhattan district attorney to plead guilty to committing perjury on the witness stand during Trump’s financial fraud trial, Bloomberg reported.
“I of course want to know whether Mr. Weisselberg is now changing his tune, and whether he is admitting he lied under oath in my courtroom at this trial. Although the [New York] Times article focuses on the size of the Trump Tower penthouse, his testimony on other topics could also be called into question,” Engoron wrote in a Monday email to the trial lawyers.
Weisselberg had testified on behalf of Trump and the other defendants that he “never focused” on the valuation of Trump’s triplex apartment in Trump Tower. But that testimony was shown to be false.
Engoron said in his email that he may find that none of Weisselberg’s testimony during the case had been credible.
Weisselberg’s apparent perjury negotiations are one possible reason Engoron has delayed issuing his final verdict in the case.
Why it matters: Letitia James is asking Engoron to fine the defendants $370 million in damages and issue a ban on the Trump Organization doing business in the state. Weisselberg, who has already served prison time for tax fraud, was a key defense witness. If he pleads guilty to having lied under oath, it will further damage Trump’s case.
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Tuesday, February 6
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A three-judge panel with the U.S. Court of Appeals for the District of Columbia Circuit rules unanimously that presidential immunity does not protect Donald Trump from being prosecuted for his attempts to overturn his loss in the 2020 election to Joe Biden. Yet at the same time, the former president succeeds in delaying the start of his federal election interference trial in the hopes of pushing an ultimate verdict after the 2024 election. Here are the latest legal developments facing the former president seeking to be reelected in 2024.
Jan. 6 election interference
Appeals court rejects Trump’s presidential immunity arguments
Key players: Judge Tanya Chutkan, Judges Florence Pan, J. Michelle Childs and Karen Henderson of the U.S. Court of Appeals for the District of Columbia Circuit, United States Supreme Court
A three-judge panel issued a unanimous ruling Tuesday that presidential immunity does not protect Trump from being prosecuted for attempting to overturn his loss in the 2020 election, Politico reported.
“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power,” Pan, Childs and Henderson wrote in their opinion.
But the court took 28 days after hearing oral arguments in the case to come to its verdict, and also gave Trump’s lawyers until Feb. 12 to file an emergency appeal of the decision with the United States Supreme Court before it will send the case back to Chutkan.
If Trump files an appeal with the Supreme Court, as is expected, the appeals court decision will not go into effect until after the high court makes a ruling.
The Supreme Court has ruled that immunity protects sitting presidents from civil lawsuits, but the appeals court ruled that did not apply to former presidents and that the gravity of the crimes Trump is accused of committing is too great to ignore.
The Supreme Court may not ultimately agree to hear Trump’s appeal, however, and could kick the case back to Chutkan by the end of month. In that event, the trial could still begin later this spring.
Trump could also seek to further delay the trial by asking the full 11-judge court of appeals to review the panel’s ruling. But Tuesday’s ruling made clear that the court would not prevent the return of the case to Chutkan short of the full appeals court agreeing to rehear the presidential immunity question.
Chutkan has already been forced to postpone the March 4 start date of the trial, and has dropped the case from the court’s public calendar.
Why it matters: If Trump does succeed in pushing the trial past the election, voters may not have the opportunity to hear the evidence presented in court, or to have a verdict factor into their decision on who to vote for in 2024. Polls have shown consistently that were Trump to be convicted by a jury of felony offenses, many Americans would not vote for him.
