This Week in Law: Prosecutor Misconduct Endangers a Case

As the lawfare crusade continues, former President Donald Trump is racking up significant victories in court. Down in Florida, President Trump secured an indefinite delay in his criminal case involving alleged mishandling of classified documents. This delay was ordered following revelations that Special Counsel Jack Smith and prosecutors mishandled and misrepresented evidence, which is uniquely ironic given the subject matter of the underlying case.

In Georgia, where another criminal case is pending, the Georgia Court of Appeals agreed to hear President Trump’s attempt to remove Democrat District Attorney Fani Willis from the case. The Georgia Court of Appeals is set to consider and decide this issue in the coming weeks.

It is becoming increasingly likely that the ongoing Manhattan criminal case is the only trial that President Trump will face before the November election.

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.”

The trial began on April 15, and jury selection was completed on April 19. 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: This week, the jury heard testimony from porn performer Stormy Daniels, also known as Stephanie Clifford. Daniels and Playboy model Karen McDougal are central to this case because prosecutors allege that former President Trump paid them off and then falsified business records, to prevent negative media stories during his 2016 presidential campaign. Daniels alleges that she had a sexual encounter with President Trump in 2006, but President Trump denies the affair.

On May 8, President Trump’s attorneys cross-examined and discredited Stormy Daniels, highlighting her history of being a pornographer, her strip club tour, and her history of profiting off allegations against Trump. That same day, Judge Merchan denied a second attempt by President Trump to dismiss this case for a mistrial. President Trump’s attorneys argued that Stormy Daniels’s testimony was unfairly prejudicial against Trump due to its inconsistencies and unnecessary detail, which could improperly influence the jury.

The jury is soon expected to hear from President Trump’s former personal attorney Michael Cohen, who is the prosecutor’s star witness. Another key witness, Karen McDougal, is not expected to testify.

Judge Merchan handed the prosecution another win by ruling that former Federal Election Commission Chairman Bradley Smith, an expert on campaign finance-related issues, is limited as to what he can say in his testimony in the case. One of the defenses raised by the president’s legal team is that even if such payments were made, they were not necessarily to influence an election but rather to protect Donald Trump’s name, his brand, and his family. Chairman Smith was expected to testify in support of this theory, as he has long asserted that that “almost anything a candidate does can be interpreted as intended to ‘influence an election’” but “not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.” But after Judge Merchan’s ruling, Smith can now only testify as to the “general background as to what the Federal [Election] Commission is, background as to who makes up the FEC, what the FEC’s function is, what laws, if any, the FEC is responsible for enforcing, and general definitions and terms that relate directly to this case, such as for example ‘campaign contribution.’”

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 May 8, the Georgia Court of Appeals agreed to hear former President Trump’s attempt to disqualify Democrat District Attorney Fani Willis from the pending criminal case in Georgia. Trial court judge Scott McAfee previously denied President Trump’s attempt to remove Willis from the case, but the Georgia Court of Appeals will now determine whether that denial was permissible.

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 was set to begin on May 20, 2024, but this date has now been postponed indefinitely. 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 May 7, Judge Aileen Cannon postponed the trial date indefinitely in this case. In an order, Judge Cannon stated “that finalization of a trial date at this juncture … would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court.” This delay comes after Special Counsel Jack Smith and other prosecutors admitted to tampering with evidence, stating “there are some boxes [of documents seized from Mar-a-Lago] where the order of items within that box is not the same as in the associated scans.” Prosecutors previously represented to the court that the documents were “in their original, intact form as seized.” Judge Cannon also recently unredacted documents showing the Biden administration’s involvement in this case.

As a result of this indefinite delay, it is unlikely that a trial will occur before the November election.

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.

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: This case mostly remains on hold.