Serious Trouble
Serious Trouble
Justice Delayed
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Justice Delayed

Trump's DC federal case faces two hurdles that may cause the trial to slip until summer; the gag orders on him are upheld; Hunter Biden is pursuing a reckless legal course
27
Transcript

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Dear listeners,

We have two episodes coming for you this week, one right now and one near the end of the week. On the second episode, we’ll be taking your end-of-year questions — if you have a burning question for Ken, please send it to the RICO hotline by Wednesday morning so we can consider it for inclusion.

On today’s show, we talk about a couple of significant matters that stand to delay former President Trump’s federal trial for actions related to the aftermath of the 2020 election.

One is his appeal of Judge Tanya Chutkan’s ruling that he is not presidentially immune from trial. His purported immunity is not merely from conviction but from trial itself, and therefore actions related to the trial have been stayed pending a (so far very accelerated) appeal process. It seems likely an appeals court will rule as soon as mid-January, and it’s not clear the Supreme Court will have any interest in taking the case up after that, so this delay may not interfere with the scheduled March trial date. But a few weeks’ pause in pre-trial motion practice could make a March start to the trial impractical, and, as Ken notes, it’s unusual for even less high-profile federal cases to go to trial on their first scheduled trial date.

The potentially thornier matter is a separate case the Supreme Court is considering, in which the court could reject the expansive theory of “obstruction of an official proceeding” that federal prosecutors have used in charging many cases related to January 6. The relevant statute originates from the Sarbanes-Oxley act, a securities-related law that followed the Enron scandal, and it’s debatable whether the law was really meant to extend to acts like rioting in the Capitol, rather than just to more mundane acts like the production of false documents. It’s likely the Supreme Court will rule on this issue by June, and Judge Chutkan may decide it’s worth waiting for that ruling before starting with Trump’s trial.

So all told, that means this trial might not start until July or August, which would set it up to finish… just shortly before Election Day. Awkward.

Even as these proceedings face delays, Judge Chutkan has made clear she retains authority over the case, including the ability to enforce a gag order and other bail conditions — and that gag order has now been blessed (though also narrowed) by another appellate panel. The appeals court judges’ long opinion provides some of Ken’s much-desired clarity about how judges must balance the interests of free speech and orderly trials when restricting how parties may talk about cases. Meanwhile, an appeals court in New York did not give Trump the relief he desired from the gag order he faces there, in the civil trial overseen by Judge Arthur Engoron.

Meanwhile, Hunter Biden. Hoo boy. He already faced a kind of weak-ass gun charge in Delaware, and his lawyers have some pretty good arguments about why that case should be dismissed. But now he’s also been indicted in Los Angeles for felony tax evasion, and the complaint in that case is brutal — laying out a narrative about how Biden willfully evaded his responsibilities to pay taxes, despite knowing that he was required to pay hundreds of thousands of dollars, and despite (at times) being in possession of the funds he needed to pay those taxes. As Ken describes, this indictment is aggressive in marshaling evidence to show this case was about more than just a hapless addict who had no idea what he was doing.

Hunter Biden’s best legal shot might be to politicize the case as much as possible — it’s better if a jury in Los Angeles can be convinced to approach the case as a political witch hunt against his father than as a garden-variety case about a rich guy who preferred to spend his money on drugs and hookers rather than pay the taxes he owed. Hence, the choice to blow off a congressional subpoena to hold a big defiant press conference at the Capitol, even though doing so exposed Hunter to yet more legal peril, this time for contempt of Congress. Politicizing this case would not seem to be in Joe Biden’s interest, and was not the strategy his aides have sought to pursue, but Hunter’s allies are telling Axios that they know better than the White House political team. Whatever deficiencies Hunter and his cadres have, you can’t fault them for a lack of self-esteem.

There’s lots more to talk about this week, including the huge defamation award against Rudy Giuliani — we’ll be taking that and some other juicy stories up in the next episode in just a few days.

We hope you enjoy the episode,

Josh

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Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.
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Josh Barro
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