@Teri_Kanefield@law-and-politics.online
@Teri_Kanefield@law-and-politics.online avatar

Teri_Kanefield

@[email protected]

Former appellate defender and UC Berkeley Law graduate. My practice was limited to representing indigents on appeal.

I’ve written more than a dozen books and published more than 50 short pieces in The Washington Post, Cnn.com, and others. My book prizes include the Jane Addams Book Award.

Tfr

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Teri_Kanefield, to random
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Here's the DOJ's request for a gag order:

https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.57.0_1.pdf

As with all of the DOJ's filings, this was written for public consumption. It contains very little legalese, the law is presented in a straightforward way, and the material is, um, I guess you could say compelling.

The DOJ refers to this as a high-profile case.

Well, that's your classic understatement. I think it's safe to say that everyone in DC by now has a strong opinion about Trump.

1/

Teri_Kanefield,
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My conclusion: It seems to me that the greatest danger that the DOJ lists is that jurors will be afraid to serve.

They quote Trump saying that D.C. “is over 95% anti-Trump."

So, specifically, people in that 95% may be afraid to serve.

This is obviously a problem.

I assume that extraordinary steps will be taken to protect the jurors.

BTW, if you are new to reading court filings, the way to get the Cliff Notes version is to scroll through and read the headings.

2/

Teri_Kanefield,
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My briefs (a different jurisdiction, different kind of brief) always had a table of contents so the court could read all of the headings at once. I made sure that the headings told the story.

The DOJ asks for a "narrowly tailored" gag order (because of the First Amendment).

In particular, they are concerned about Trump contacting the citizens of DC to conduct jury studies because this can be used to poison the jury pool.

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

What is going to happen?

I think it's pretty clear that Trump knows he will lose: A jury will convict him of at least some of the charges.

That's why he is making noise about how the jury and judge hate him. He's not saying that about Cannon.

It's similar to what he did before the election when he basically said "the only way I will lose is if there is fraud."

He is doing the same thing now. He is saying, "If I lose it will be because DC and the judge hate Trump."

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

The DOJ is careful to ask for a "narrowly tailored" gag order.

Gag orders are always problematic because of the First Amendment. At the very least, though, I see Chutkan granting the request about polling potential jurors.

The Supreme Court has said that in high-profile cases, a court can restrict public statements, but there is no clear rule for courts to apply, which is what makes them tricky.

5/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Wait, WHAT????

No link yet to the lawsuit.

https://www.thedailybeast.com/trump-turns-new-york-ag-case-against-judge-arthur-f-engoron?ref=wrap

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Cannon isn't giving Trump what he wants.

Here's the latest order:
https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.150.0.pdf

Basically, she granted the government's proposed order.

Trump doesn't get to review the classified documents at Mar-a-Lago, which was a loony request.

(Remember when he asked Cannon to order the government to set up a secure facility at Mar-a-Lago so he didn't have to travel?)

And he can't just talk to his lawyers about the stuff if they don't have clearance.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@pjanovsky

Wasn't the judge who signed off on the subpoena in DC?

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

I'll try again to respond to this politico piece:

https://www.politico.com/news/2023/09/12/trump-doj-assist-biden-impeachment-probe-00115393

First, some background.

The House issued a subpoena to Donald Trump in 2019 in as part of the first Impeachment inquiry.

Trump and his advisors made up a rule: The committee could not subpoena him without a full house vote.

Pelosi said that was nonsense. No full house vote was needed before the committee could issue subpoenas.

Pelosi, of course, was right. . .

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

The executive branch cannot dictate rules to the House.

The president cannot invent rules that allow him to decide when to comply with subpoenas.

Also recall that we were all properly horrified by how Trump had politicized the DOJ by taking over and giving it orders.

For me, by the way, this was one of the creepier moments in the Trump administration. Autocrats control prosecutors. Our system creates prosecutorial independence.

2/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Remember also how horrified we were that Trump was creating rules for refusing to comply with subpoenas.

(As I recall, Giuliani made similar announcements. He said that any House subpoena would be invalid because blah blah blah.

No doubt at Trump's instruction, the DOJ came up with an opinion that the House subpoenas were not valid because blah blah blah.

These OLC memos are not "binding" on anyone, particularly Congress. At any time, the DOJ can say 'nope.'

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

If these memos were binding on future administrations, before leaving office, Trump could have had his DOJ create opinions that would bind Biden. Nonsense, of course.

Politico implies that Biden can say "HA HA I'm not complying because of a memo that the Trump administration created."

There are lots of reasons Biden won't (and shouldn't) do that.

If subpoenas are frivolous there are ways of challenging them in court.

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Who knows if the House crazies will even get that far, right?

I don't know if impeaching a president for something done before office is even a thing. It makes no sense.

I also don't know whether Biden will challenge a subpoena or just show up like Clinton did.

I'll also remind you that each time Trump people have challenged subpoenas in court, people were furious and accused them of "abusing" the legal system.

Everyone has the right to challenge a subpoena.

5/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Trump's motion to recuse Judge Chutkan’s is for show.

Here's the motion:
https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.50.0_5.pdf

Here's the applicable law:
https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-disqualification-under-canon-3c-code-judicial-conduct

The statements she made were during sentencing proceedings for other J6 defendants.

The motion is so that Trump and his minions have talking points in the court of right-wing public opinion.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

In the motion, Trump's lawyers selectively edited sentences from case law, but if you read closely, whether she recuses is entirely discretional, which means that an appeal really has no chance.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

The most threatening thing to right-wing men are women who don't need them.

This story tells you everything about who they hate and why.

https://www.rollingstone.com/culture/culture-news/shakshuka-girl-matt-walsh-internet-x-drama-1234819913/

If that's behind a paywall, see:
https://www.nbcnews.com/tech/internet/was-childfree-woman-enjoying-saturday-came-culture-warriors-rcna103581

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@carolannie

Think about this: 100 years ago, any man could get a woman. Women were completely dependent.

Now women don't need men, and one political psychologist I know says the entire root of the rightwing militia anger is precisely that: They no longer control women.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

This is really good news. Thanks @marcelias

A panel of three federal judges struck down Alabama's latest Congressional map for not following the court's order to give Black voters equal representation.

Here is the decision:
https://www.documentcloud.org/documents/23936075-milligan-2023-09-05-order

It's very long. I just skimmed through.

They're appointing a special master to draw the maps basically because the Alabama legislature is refusing to follow orders.

They also order the state not to use this map in any elections.

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Yes, I know. I accidentally hit "publish" after typing about 4 words.

No, I am not losing my mind, but I may need [a lot more] more coffee. ☕

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

The fun part about having my 18 year old home (after he was away for a summer job before he heads to college) is that I never know, when I walk into a room, whether he will roll his eyes at me and be a grump or say (sweetly) "Mom can you help me with this?"

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Wanna read something truly insane?

This was just filed with the court.

https://www.courtlistener.com/docket/67694389/57/the-state-of-georgia-v-meadows/?redirect_or_modal=True

And now I think I need a break. There is some Godiva chocolate in the pantry and I need dark chocolate.

(I abuse very few substances. Dark chocolate and hair care products come to mind.)

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Adding: Someone asked me what this is.

It's a motion to intervene. https://www.law.cornell.edu/wex/intervene#:~:text=The%20nonparty%20who%20intervenes%20in,the%20relevant%20claims%20or%20defenses.

I have never seen one in a criminal case. (Has anyone else?)

So this might not even be a thing.

I mean other than a crazy thing.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Shawn Sill's removal motion is super interesting. Not because he makes a strong case for removal (he doesn't) but because he points the finger at Trump.

If they all start pointing their fingers at Trump, this could get very very interesting.

Obviously, prosecutors love it when defendants start pointing at each other.

Teri_Kanefield, to random
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Fani Willis responded to Chesbro's demand for a speedy trial by saying, Okay, let's have the trial October 23 for all the defendants:

https://www.documentcloud.org/documents/23926015-willis-trial-date-motion

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@cherold

There won't be a trial in October.

I think what we're seeing is some weird posturing.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@thelmadonna @cherold

I can't read minds but I don't think Fani Willis really thinks she'll take all of these defendants to trial.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here is Fani Willis's response to Meadow's motion to move his criminal case to federal court under the "federal officer removal" doctrine:

https://www.courtlistener.com/docket/67694389/27/the-state-of-georgia-v-meadows/

Her brief is well done.

She argues that trying to manipulate an election is outside the scope of his duties as a federal officer therefore the removal statute doesn't apply.

She makes a persuasive case that he knew he shouldn't be meddling with the election in Georgia.

But here's the problem with her argument . . .

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Another thought about the filings from the Georgia defendants.

Some like Eastman and Clark, are true believers. The CA State Bar was sort of aghast that Eastman showed no remorse. Both were glib about the possibility of violence.

Thomas Jefferson, who in my view gets way too much credit, once said: "I hold it that a little rebellion now and then is a good thing and as necessary in the political world as storms in the physical. . . " (see screenshot #2 for the remainder of the quotation.)

I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccesful rebellions indeed generally establish the incroachments on the rights of the people which have produced them.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

One way to tell the true believers: They want Trump to pay for their lawyers. Some of the people who want Trump to pay for their lawyers (like Ellis and Giuliani) are lawyers so they know exactly what it means to have a co-defendant pay your bills: Your interests can't diverge.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@enmodo

Defendants are given the right to pick their own lawyers.

What will happen is that the government makes sure they understand the conflict of interest, otherwise, they'll have an issue on appeal (ineffective assistance of counsel)

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here is Jeff Clark's motion to remove.
https://www.documentcloud.org/documents/23922289-clark-removal

He is also raising the "federal officer removal" doctrine, which is no surprise given that he was a lawyer with the DOJ.

He is also furious!! He had no idea he was being investigated until he was indicted. He is calling it a political "hit job" and says the goal was to "cost him millions in legal fees, impair his work in the conservative legal community" and "tarnish his previously stellar reputation."

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

He's challenging the nature of the special grand jury (civil / criminal distinction). It won't work.

He also says nobody has the right to scrutinize legal advice given to the president. That won't work either.

He, and the lawyer who drafted this, do not understanding the nature of the elements of RICO.

(He's ranting about RICO and how he didn't agree to enter the conspiracy. This isn't the place for that anyway.)

This entire motion is much more poorly drafted than Meadows' motion.

2/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

This is not the way to write a motion. The way to do it is to state the facts in a way that the facts speak for himself.

The fury and emotion of the lawyer should NOT be showing through.

Clark should have just stated his case for removal and left the ranting out of it. His case for removal isn't actually that bad, but you wouldn't know it from this motion.

I give this motion a D-. It's a confusing incoherent mess.

On the other hand, I'd give Meadows an A. 👩‍🏫

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Now you know why I was so surprised to read Meadows' motion and say, "Hey, this is pretty good!"

Next he brings up the continent electors from Hawaii in the 1960 election.This is an argument that what he did was legal, which has nothing to do with the jurisdictional question.

Ha! Footnote 10 is great!

He opens by mentioning that the Supreme Court has said, in dicta, said, that electors are not federal officers. But then says they are because they are mentioned in statutes.

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

He does a lot of twists and turns trying to argue that as an elector he was a federal office.

Once he gets into trying to argue that he's a federal officer, the brief gets a bit better (as well as someone can do with a very weak argument).

5/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Let the finger pointing begin.

Former Georgia Republican Party Chair David Shafer, indicted in Georgia for his role in the fake elector scheme, said attorneys for Trump, his campaign and the local GOP were responsible for urging him to assemble a slate of false presidential electors that are now at the heart of a sprawling racketeering case.

https://www.politico.com/news/2023/08/22/trump-indictment-false-electors-00112229

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@theandil

None of us have seen all the evidence. In particular, we haven't seen the defenses or evidence the defendants have.

However, Fani Willis has seen it.

If someone wasn't charged there is one reason: There wasn't enough evidence to secure a conviction at trial. Put another way: The person had a solid defense.

Remember: we have only seen part of the evidence.

Actually, a second possible reason: Willis screwed up, but there is no reason to believe that.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here's Jack Smith's response to Trump asking that the trial be set in 2026:

https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.32.0.pdf

This doesn't need an explainer. The DOJ is writing these so they can be easily read by the public.

Remember that Trump, in his Tattletale Filing (I called about that in my weekend blog post. Will repost the link shortly) made a big deal out of the December 11, 2023 conflict.

It seems to me that Trump hurt his chances of negotiating by proposing an absurd date (April 2026).

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

I finally read Meadow’s motion to dismiss.

(I got behind in my pleasure reading this weekend 🤓😂)

https://s3.documentcloud.org/documents/23919695/meadows-supremacy-clause.pdf

This argument is much weaker than his earlier motion on why his case should be moved to federal court.

If you missed my weekend blog post explaining, see:
https://terikanefield.com/over-the-cliff-notes-another-trump-indictment-a-motion-to-remove-and-more/

Removing a case from one court to another is also easier than dismissing a case altogether.

The standards for dismissal are high: he has to show that there is no point having a trial.

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

See all of these green things that look like grass?

They are baby palm trees.

Now that I live on California's central coast, I understand palm trees: They are fancy weeds.

I love them! I have a bunch of mature queen palms and robellini date palms.

But I don't needs thousands of them. If you don't pluck them now you have headaches later.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Just when I think my Twitter friends have settled permanently back into Twitter, Musk announces that he will end blocking as a feature except in DMs.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Willis's proposed scheduling order is here: https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rOXUkyWb9F5Q/v0

"In light of Defendant Donald John Trump’s other criminal and civil matters pending in the courts of our sister sovereigns. . ."

Arraignment: September 5

The final pretrial conference: February 20, 2024.

The trial shall commence on March 4, 2024.

Trump's dance card is getting full. Popular guy. He's wanted in so many jurisdiction.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

A few observations about the Georgia indictment:

The Georgia RICO statute seems to work much like he federal conspiracy statute: People enter a conspiracy to commit an illegal act and take steps in furtherance.

I’ve described federal conspiracy as a way for prosecutors to cast a wide net. My former mentor Mark Reichel calls it “the darling of the prosecutor’s garden.”

(Similar: but conspiracy requires mutual understanding between co-conspirators)

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

There are multiple instances of people saying they were acting at Trump’s direction and times he joined meetings by phone . . .

Important: POTUS plays no role in overseeing, monitoring, or administering elections. Trump had no more business doing it than any ordinary citizen.

As with is impeachments, it was (among other things) abuse of power

Regarding Eastman: I don’t recall this detail, but it blows up any the defenses I've seen him offer:

2/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Document h/t @GottaLaff https://www.documentcloud.org/documents/23909543-23sc188947-criminal-indictment.

First, the list of people charged (attached)

The 6 I was expected and then some. (And then LOTS)

Basically: Trump lost the election. Then he and bunch of others entered a conspiracy that contained a common plan and purpose to commit 2 or more acts of racketeering activity.

In other words, RICO

You can click on the doc and see the list of people charged and the crimes alleged.

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Georgia RICO is easier to prove than the federal version because Georgia law doesn’t require prosecutors to prove an underlying “criminal enterprise.” They only have to prove that the defendants committed some illegal acts in pursuit of a single criminal goal.

First we get a list of the "manner and methods used by the Defendants and other members and associates of the enterprise to further the goals of the enterprise and to achieve its purposes.

2/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

The purpose: To unlawfully change the outcome of the election in favor ofTrump.

The list of methods begins with "False Statements to and Solicitation of State Legislatures"

This includes appearing at official hearings and telling lies.

Next: "False Statements to and Solicitation of High—Ranking State Officials"

We get a list of the officials lied to (Not the names but the titles like Secretary of State)

Next method: "Creation and Distribution ofFalse Electoral College Documents"

3/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

If there are incriminating DMs in Trump's Twitter Account, here is how the government would know:

A cooperating witness turned over incriminating DMs.

Also nobody knows what the DOJ knows which is one reason investigations are done away from the public view.

So if you try to suppress something that the DOJ knows exists . . . ding.

Similarly, they'd have reason to think someone else was putting out some of his key Tweets concerning the leadup to January 6 from evidence already uncovered.

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