Trump Moves To Quash GA Indictment On Grounds Of YOU’RE NOT THE BOSS OF ME

Delay, delay, delay.
The post Trump Moves To Quash GA Indictment On Grounds Of YOU’RE NOT THE BOSS OF ME appeared first on Above the Law.

Over on Truth Social, Donald Trump has been all-caps fulminating about Manhattan District Attorney Alvin Bragg’s reportedly imminent indictment on charges stemming from the 2016 hush money payment to Stormy Daniels. In the meantime, his lawyers in Georgia seem to have been more productively occupied in crafting a motion to quash the report on election interference compiled back in January by the Fulton County special purpose grand under the aegis of District Attorney Fani Willis.

As Trump legal motions go, this one is less patently ridiculous than most — and it manages not to refer to Hillary Clinton or RUSSIA HOAX even once! And, although it appears to be somewhat legally dubious, there’s a fair prospect that it will succeed in gumming up the works as DA Willis seeks to issue indictments in the case.

Trump’s lawyers Drew Findling, Jennifer Little, and Marissa Goldberg argue in support of standing that “President Trump was inextricably intertwined with this investigation since its inception.” This admission may come back to haunt their client if he later tries to distance himself from the actions of other parties, particularly if the reporting is correct that Willis is considering charging a RICO conspiracy. But the concession was probably necessary here where Trump was not interviewed and where he relies so heavily on vindicating the rights of other witnesses before the panel. For instance, he argues that prosecutors differentiated inconsistently between subjects and targets when issuing subpoenas, so recipients were unsure “how to conduct themselves in the public sphere as well as what key constitutional decisions needed to be made regarding the ability to answer questions while under oath.”

The document is a prototypical “kitchen sink” pleading, but the main thrust is that the Georgia special purpose grand jury statute is somehow defective. Trump’s lawyers argue that the law is unconstitutionally vague, both as written and as applied, because it doesn’t specify whether special purpose grand juries are by nature civil or criminal. This argument failed to persuade multiple state courts, such as the ones in South Carolina and Florida, which ordered Lindsey Graham, Mark Meadows, and Mike Flynn to show up and testify. But it did work in Texas, where the court characterized the DA’s subpoena as civil and refused to enforce it for talk show host Jacki Pick. This then emboldened Sidney Powell to blow off her own subpoena, depriving the jurors of the opportunity to hear her theories on Hugo Chávez’s dastardly interference in the 2020 election.

Georgia Governor Brian Kemp made a similar argument in support of an attempt to quash his summons, citing a 2011 ruling by the Court of Appeals of Georgia which in turn interpreted a 1996 decision by the same body as restricting special purpose grand juries to civil inquiries. Kemp argued that the subpoena was barred by sovereign immunity, since the state itself is immune from civil process. But presiding Judge Robert McBurney had little patience for this argument, noting that the instant panel’s “purpose is unquestionably and exclusively to conduct a criminal investigation: its convening was sought by the elected official who investigates, lodges, and prosecutes criminal charges in this Circuit; its convening Order specifies its purpose as the investigation of possible criminal activities; and its final output is a report recommending whether criminal charges should be brought.”

Trump’s lawyers point out that the court failed to grapple with the one-off sentence in the 2011 case which suggests that special purpose grand juries are inherently civil. But a cursory Google search reveals that special purpose grand juries in Georgia do in fact conduct criminal inquiries, suggesting that the 2011 holding has not been so interpreted.

The rest of the pleading is taken up with the usual Trump blather: the judge was biased against him, as was the prosecutor, and both should be removed from the case; the jury forewoman tainted the proceeding by talking about them afterwards on television; the jury violated Mike Flynn’s rights by improperly considering his Fifth Amendment invocation as squirrelly, even though prosecutors explicitly told them not to; blah blah blah WITCH HUNT.

Trump wants the entire report expunged and “all evidence derived from [it] suppressed as unconstitutionally derived and any prosecuting body be prevented from its use.” He does not, however, seek an injunction or explain why he waited more than ten weeks to move to suppress the report — although perhaps those two things are related, since the former president can hardly claim irreparable injury after sitting on his hands since the special purpose grand jury wrapped up in the first week of January. He’d also like Fulton County Superior Court Chief Judge Ural Glanville to consider the motion, rather than Judge McBurney.

The whole thing is probably doomed, for any one of several reasons, including Trump’s lack of standing. There’s also the minor matter of a 2015 ruling by the Supreme Court of Georgia holding that the remedy for overreach by a special purpose grand jury is not suppression of its findings. But that doesn’t mean this motion won’t throw a wrench in the works if the appellate court decides to spend a little time considering whether the former president is entitled to file an interlocutory appeal if/when Judge McBurney and/or Judge Glanville tell him to go pound sand.

And when you’re staring down four pending grand juries — two state, and two federal — a delay is almost as good as a win.

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.