Lawfare Against Trump Flares For Final Time

Wednesday saw a flurry of court filings in two separate cases connected by a common theme: Democrats’ weaponization of the criminal justice system to destroy Donald Trump.

With sentencing still scheduled for Friday morning in a Manhattan state trial court, Trump’s attorneys were taking no chances. With both trial judge Juan Merchan and a New York appellate judge denying Trump’s Motion to Stay the case, the president-elect’s legal team filed tandem emergency petitions for a stay — one in the United States Supreme Court and the second in New York’s highest court.

The petition filed before the U.S. Supreme Court highlighted three important issues for the Court to consider: whether Trump was entitled to an automatic stay while his claims of presidential immunity were addressed; whether the admission of evidence during Trump’s criminal trial concerning official acts he took while in office violated the doctrine of presidential immunity and the Court’s precedent in Trump v. United States; and whether presidential immunity applies during the transition period.

That Trump’s petition presented substantial constitutional questions quickly became clear when Justice Sonia Sotomayor requested a response from the State of New York by Thursday at 10:00 a.m. Afterall, there would be no reason to seek a response if the petition lacked merit.

One might also speculate that by requesting a response, the high court was signaling to the New York high court that it is taking the petition seriously, while also providing the state court a short window to grant a stay on its own. 

Here, Trump’s lawyers wisely hedged their bets by simultaneously seeking a stay from New York’s highest court and the U.S. Supreme Court. Not only was time too short to wait for the New York court to rule before petitioning the U.S. Supreme Court, but the state court justices knowing the U.S. Supreme Court could be ready to slap a stay on the case should they refuse, should be a cause for concern for their own credibility.

If the New York high court does not enter a stay by day’s end, it seems likely the U.S. Supreme Court would, at a minimum, enter an administrative stay to delay Friday’s sentencing. That delay would allow the full court to weigh in on the important issues Trump presents.

In addition to these developments, Wednesday saw Florida district court Judge Aileen Cannon, a Donald Trump appointee, enjoin the Department of Justice, the Special Counsel’s Office, and their employees from “releasing, sharing, or transmitting” a draft or the final report of the special counsel, or otherwise sharing any information contained in the reports outside of the Department of Justice. 

Judge Cannon’s order followed an emergency motion filed by two of Trump’s co-defendants — Waltine Nauta and Carlos De Oliveira — in the classified document case Special Counsel Jack Smith brought against the president-elect following a raid on his Mar-a-Lago home. In July, Cannon had dismissed the charges, holding Jack Smith had not been properly appointed to serve as a prosecutor in the case.

The special counsel appealed the dismissal to the Eleventh Circuit Court of Appeals, which hears appeals from Florida federal district courts. Then, after Trump’s re-election as president, Special Counsel Smith moved to dismiss the appeal against Trump, given Trump’s immunity from prosecution. The Eleventh Circuit dismissed the appeal, which given Judge Cannon’s earlier decision dismissing the indictment meant that the classified document criminal case against Trump was over. 

Not so, though, for his co-defendants, Nauta and De Oliveira: The Eleventh Circuit must still consider and rule on the appeal filed by the special counsel. And if the Eleventh Circuit reverses Judge Cannon’s decision, absent intervention by the Supreme Court, Nauta and De Oliveira will face a criminal trial on the charges related to the classified documents.

That both Nauta and De Oliveira remain in legal jeopardy leaves them at risk to unfair prejudice caused by the release of the Special Counsel’s report — something Attorney General Merrick Garland had indicated he intends to release. The publicity that would surely surround the publication of the special counsel report could threaten to deny Trump’s alleged co-conspirators their due process rights. Accordingly, Judge Cannon ordered the reports not be shared beyond the Department of Justice.

Concurrently with their filing in Judge Cannon’s court, Nauta and De Oliveira also sought an injunction from the Eleventh Circuit Court of Appeals, presenting identical arguments: that the release of the reports would deny them due process of law. The Eleventh Circuit ordered the DOJ to respond by 5:00 p.m. Wednesday. 

In its response brief, the DOJ explained that the report was broken into two volumes, with Volume I addressing the prosecution of Trump relating to the 2020 presidential election and Volume II concerning the classified documents case. The DOJ then represented that it would not release Volume II to the public, but instead would only share it with the Chair and Ranking Member of the House and Senate Judiciary Committees and would obtain their commitment not to release any information from Volume Two publicly. However, because Volume I only concerned the 2020 presidential election, the DOJ maintained it would release that report publicly and that this approach left Nauta and De Oliveira with nothing to complain about.

Attorneys for Nauta and De Oliveira promptly filed a reply brief objecting to the DOJ’s plan and insisting the issue should be returned to Judge Cannon to decide following a hearing. Here, the Defendants stressed that they have not yet seen Volume I, and thus cannot determine whether its release could harm their interests. As to the DOJ’s proposal related to Volume II, Nauta and De Oliveira highlighted the risk of leaks from Congress, referencing the leak of the Dobbs draft opinion to punctuate their point.

With briefing complete, it is likely the Eleventh Circuit will rule expeditiously on the motion. It is difficult to predict the course of action the appellate court will take, but without Trump a party to the case, the Court may seek to split the baby by allowing the public release of Volume I, while enjoining the release of Volume II, even to Congress.

Here, it is important to note that Trump, who sought to intervene in the lower court, did not seek to intervene at the Eleventh Circuit — or at least not yet. And Judge Cannon has yet to rule on Trump’s Motion to Intervene, meaning Trump lacks the right to challenge to the release of Volume I. Given the DOJ’s posturing, however, Trump’s lawyers may quickly file a Motion to Intervene in the Eleventh Circuit to argue Volume I should not be released either.

Only time will tell, but one thing is certain: Time is running out for the last vestiges of lawfare against Trump.

Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.