This Week In Lawfare Land: ‘Get Trump’ Cases In Limbo

From New York to Florida, prosecutors going after President Trump must be getting frustrated. Several months ago, their prospects for landing charges in multiple cases before the November general election seemed bright. Now, however, only Alvin Bragg has been able to conclude his trial against the former president, and even that jury verdict seems likely to fall in light of the Supreme Court’s decision in its case regarding presidential immunity.

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: Manhattan District Attorney Alvin Bragg — who “campaigned as the best candidate to go after the former president” — charged former President Donald Trump with 34 felony charges for alleged falsification of business records relating to a nondisclosure agreement paid by Trump’s former attorney Michael Cohen to pornographic film actress Stormy Daniels.

This criminal trial concluded on May 30, with the jury returning a guilty verdict that Trump is expected to appeal. The conviction does not affect President Trump’s ability to run for president, though it may present complications with his ability to run a modern presidential campaign.

President Trump’s sentencing, originally scheduled to occur just a few days before the start of the Republican National Convention in Milwaukee, was delayed until at least Sept. 18 so that parties could brief the court regarding the Supreme Court’s decision on presidential immunity. Based on those briefs, Judge Merchan could vacate the verdict against the president.

Latest developments: No new updates.

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, who charged Trump with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. This case is currently stalled while the Georgia Court of Appeals hears an appeal on whether Willis should be disqualified from the case.

Latest developments: No new updates in this case, which is unlikely to move before the November election.

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. 

On July 15, Judge Cannon dismissed the entire case because the appointment of Special Counsel Jack Smith violated the Constitution. Specifically, the appointment was unconstitutional due to improper funding, insufficient appointment procedures by the president and senate, and a lack of statutory authority to bring the case. 

Latest developments: Special Counsel Jack Smith appealed Judge Cannon’s decision to dismiss the case. The appeal is now before the U.S. Court of Appeals for the 11th Circuit, and the Special Counsel’s opening brief is due Aug. 27. 

Washington, D.C.:  Prosecution by Biden DOJ for Jan. 6 Speech

How we got here: In this federal criminal case, Special Counsel Jack Smith charged former President Trump 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. The issue reached the Supreme Court. 

On July 1, the Supreme Court issued a major decision in Trump v. United States and determined that a former president is entitled “to absolute immunity from criminal prosecution” for “actions within [the President’s] conclusive and preclusive constitutional authority.” These would be actions such as presidential pardons, vetoes of legislation, naming and managing agency officials, and recognizing foreign governments. Further, for anything else a president does that is within the “outer perimeter of the president’s official responsibilities,” there is still a presumption of immunity from criminal prosecution. The scope of what falls within this “outer perimeter” will be determined by a lower court, but presumptively anything done by a president when acting in that capacity, rather than a strictly campaign capacity, could well carry with it immunity.

Two of the four counts, based on “obstructing an official proceeding,” must rationally fall after the Supreme Court’s decision in Fischer v. United States. In that case, the Supreme Court held that prosecutors’ attempts to use the “obstructing an official proceeding” charge found in the Sarbanes-Oxley Act — a law about corporate accounting and recordkeeping — was an improper overreach in the context of an official proceeding of Congress. 

Given that this case was brought by Jack Smith — whose appointment Judge Cannon ruled unconstitutional — this case may also be dismissed on similar grounds.

Latest developments: No new updates. 

New York: Lawsuit by A.G. Letitia James for Inflating Net Worth

How we got here: Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump alleging that he misled banks, insurers, and others about his net worth to obtain loans, although none of the parties involved claimed to have been injured. Following a no-jury trial, Judge Arthur Engoron issued a decision in February ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond. 

Latest developments: As expected, President Trump appealed the civil fraud judgment last week. The appeal spanned 95 pages and categorized the case as an “unauthorized, unprecedented power-grab” by Attorney General Letitia James. 

Steve Roberts is a partner and Oliver Roberts is an associate with Holtzman Vogel Baran Torchinksy & Josefiak PLLC. They can be reached at [email protected] and [email protected].