And that’s before one factors in the unpaid bills, public humiliation, and professional ruin that came along with the role.

Back then, one of the firms that reportedly told Trump “no” was… Sullivan & Cromwell.

But now Sullivan & Cromwell will step in as Trump prepares another challenge to his conviction in the New York hush money case. What a difference eight years and a dose of obsequiousness can make.

Unlike eight years ago, this time all those big-money corporate clients got seats right behind Trump at the inauguration. The best strategy the Democrats have come up with is “Jesus take the wheel.” All those hard-charging #Resistance folks have largely settled into detached horror. Firms can read the room and see an opportunity to cozy up to the ascendent autocrat without fear of compromising their client base. The cost of open collaboration has gone down, and Sullivan & Cromwell is wasting no time cashing in.

Robert Giuffra, the firm’s co-chair, will quarterback the effort. Politico reports that James McDonald, Morgan Ratner, Jeff Wall, and Matthew Schwartz will join the effort. This marks a turning point for Trump — trading in parking garage lawyer Alina Habba for one of the most prestigious firms in the world. A real representational glow-up.

“President Donald J. Trump’s appeal is important for the rule of law, New York’s reputation as a global business, financial and legal center, as well as for the presidency and all public officials,” Giuffra said in a statement. “The misuse of the criminal law by the Manhattan DA to target President Trump sets a dangerous precedent, and we look forward to the case being dismissed on appeal.”

The legal foundation of the hush money case — weirdly bootstrapping a misdemeanor into a felony — may be bizarre, but it’s nonetheless exactly what the New York law says. Last year, I argued that it was a case of “coulda but shouldna” because it struck me as a Catch-22 that if campaign funds couldn’t legally be used to pay hush money, it seems unfair that a personal payment for this purpose could be an illegal campaign contribution. But despite my misgivings, that is how the law reads. The legislature may want to change it but as far as the “rule of law” goes, Trump violated this statute.

Looks like the legal profession’s brief flirtation with principles ended with a quiet ghosting.

Earlier: The Biglaw Firms That Said No To Trump

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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After wresting three postponements from the court, including one in September because it would be “political interference” to sentence him while people were voting, Trump immediately pivoted and claimed it would be “political interference” to sentence the president-elect.

His lawyers John Sauer (the future solicitor general) and Todd Blanche (the future deputy AG) made bizarre claims of “president-elect privilege” that attaches during the transition.

Sitting-President immunity extends into the brief transition period during which the President-elect prepares to assume the Executive Power of the United States, and the courts thus lack authority to adjudicate criminal claims against him.

They demanded an immediate stay to appeal the denial of their motion to disappear the verdict because it was secured using official acts evidence. And they spent the past week racing from court to court in an effort to stop their client from facing a modicum of responsibility.

But they got out-maneuvered by Justice Juan Merchan, who made the sentencing so un-burdensome that they had functionally nothing to complain about. The promised punishment of unconditional release, along with a dispensation to appear virtually, cut the legs out from under their claim that wasting even a second of Trump’s precious time during the transition compromised national security.

Sentencing a President during his transition “creates a constitutionally intolerable risk of disruption to national security and America’s vital interests.” And if anything is to be taken from the trial court’s decision to let President Trump appear virtually and its indication that it will not incarcerate him, it is that everyone agrees there are such risks. But letting the sentencing go forward sets the precedent that those are permissible risks.

Trump filed emergency motions with the First Judicial Department and the New York Court of Appeals, before finally belly flopping onto the steps at One First Street demanding that his pals bail him out. But just this once, the answer was “no” … barely.

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

(Did Justice Kavanaugh also get some personal attention from the president-elect, or was that just Alito?)

And so the once and future president whined and sighed his way through the sentencing hearing this morning, complaining that all the legal scholars at Fox know the charges were bullshit, and no one had ever been treated as badly as him. WITCH HUNT!

View the original article to see embedded media.

And then the once and future President Crimetime loped off to take comfort in all the Republican governors who trooped down to Mar-a-Lago to kiss his ring.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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In New York, Trump demands that his sentencing be adjourned so he can pursue an interlocutory appeal of the denial of his motion to dismiss on immunity grounds. He insists that the conviction for creating false business records to cover up a hush money payment rests on official acts evidence, and thus he is entitled to an automatic stay until 2029 (or preferably never). Alternatively, his lawyers John Sauer and Todd Blanche have invented a theory of president-elect immunity that they can just about argue with a straight face.

So far, they’re not getting any takers. Justice Merchan just rolled his eyes, after which Trump filed an filed an emergency petition with the New York’s Appellate Division, which was summarily rejected by Associate Justice Ellen Gesmer after a brief hearing on Tuesday. Trump then made a token feint in the direction of the New York Court of Appeals before racing to SCOTUS and demanding that it enjoin his sentencing, which is currently scheduled for Friday morning.

“Forcing President Trump to defend a criminal case and appear for a criminal sentencing hearing at the apex of the Presidential transition creates a constitutionally intolerable risk of disruption to national security and America’s vital interests,” vamped future Deputy AG Blanche and future solicitor general Sauer. “By contrast, the State of New York’s asserted interest in proceeding with the criminal sentencing of the President-Elect of the United States on politically motivated charges at breakneck speed at the apex of a Presidential transition should be accorded no weight.”

They blame the trial court for the last-minute filing, omitting to mention that Trump himself demanded three delays of sentencing, which was originally scheduled for July, and then waited three weeks after Justice Merchan rejected his immunity claims to assert said “automatic” stay: “Because it is highly questionable whether the New York Court of Appeals will act in the next 48 hours, filing applications in both courts appears to be the only viable option.”

Justice Sotomayor, who fields emergency requests from New York, has given District Attorney Alvin Bragg until 10 a.m. Thursday to respond. Then we’ll find out if the Supreme Court’s six conservatives want to hang Trump v. People of New York next to Trump v. US on its wall of shame before the outrages of the next four years even get underway.

Meanwhile in Florida, Judge Aileen Cannon purported to stay the release of the special counsel report, despite apparently lacking jurisdiction over the documents case. Trump’s dimwit henchmen, Walt Nauta and Carlos De Oliveira, simultaneously filed in the Eleventh Circuit, where they bizarrely asserted rights under the Presidential Transition Act and the Executive Vesting Clause. This may have something to do with the fact that at least one lawyer representing them, Stan Woodward, is headed to a job in the upcoming Trump administration.

The Eleventh Circuit, which does have jurisdiction, gave the DOJ until this morning to respond. And so today the government warranted that it will not be publicly releasing Volume 2 of the Special Counsel report detailing Trump’s efforts to steal government records and hide them in his pool locker until such time as the pending case against the dimwit henchmen is resolved.

“The essential premise of defendants’ emergency motion—that, absent this Court’s intervention, ‘Attorney General Garland is certain to make [the Final Report] immediately public’ and thereby cause irreparable prejudice to defendants’ criminal proceedings (Mot. 1)—is thus mistaken,” the prosecutors write, adding that “Defendants Nauta and De Oliveira have no cognizable interest in that volume of the Final Report, however, nor any plausible theory of Article III standing that would justify their asking this Court to grant relief with respect to it.”

This highlights the absolute insanity of allowing a trial judge who dismissed the case to order the DOJ to do anything at all, much less retain jurisdiction over the Justice Department for three days after the Eleventh Circuit’s disposition of the emergency motion.

“To avoid the potential need for further emergency litigation in this Court, the United States respectfully requests that this Court make clear in denying the motion that its resolution of this question should be the last word (absent review by the en banc court or the Supreme Court),” the DOJ notes pointedly. “The United States respectfully requests that, if this Court agrees that no injunction against the Attorney General is warranted, the Court should say so in an order binding on the district court and vacate the district court’s temporary injunction.”

Nauta and De Oliveira offered to respond to the DOJ’s motion by 10 a.m. tomorrow, only to be told that they can get their homework in by 5 today. Will they be asserting henchmen-to-the-president-elect privilege?

Probably!

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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“Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision,” Justice Merchan wrote.

Yesterday, Blanche and Bove, who are soon to be leading the Justice Department, threw up two middle fingers to the court again, describing “grave constitutional problems with this proceeding raised in our prior pleadings, including forcing a jury on the Defendant in record time and without proper process.”

Screeching about a “politically-motivated prosecution that was flawed from the very beginning, centered around the wrongful actions and false claims of a disgraced, disbarred serial liar former attorney, violated President Trump’s due process rights, and had no merit,” they added that “While it is indisputable that the fabricated charges in this meritless case should have never been brought, and at this point could not possibly justify a sentence more onerous than that, no sentence at all is appropriate based on numerous legal errors—including legal errors directly relating to Presidential immunity that President Trump will address in the forthcoming appeals.”

So much for decorum.

In today’s nastygram, Blanche and Bove demand that the court stay all proceedings under Trump v. US to allow their client to take an immediate appeal. As per usual, the pleading is a bit muddy on the facts and the law. In fact, this is not a response to last week’s ruling, in which the court refused to adjourn sentencing based on retroactive presidential immunity that extends backward into the presidential transition period — or at least, not really. Trump does demand an automatic stay to litigate the claim of “absolute sitting-President immunity from criminal process, extended to the President-elect.” But his main claim is that he’s entitled to a post-trial stay to appeal Justice Merchan’s December refusal to vacate the conviction because it rested on evidence of official presidential acts, which should have been excluded.

Blanche and Bove go to great lengths to fudge the line between being charged for official conduct and being convicted of non-official conduct based on evidence of official acts. Justice Merchan ruled that those claims were: untimely, because raised too late; incorrect, because the presumption of immunity was overcome; and irrelevant because the evidence of Trump’s guilt was overwhelming and so inclusion was harmless error.

In essence, Trump isn’t making an immunity claim, he’s making an evidentiary one. This may be a distinction without a difference — the law is whatever the Supreme Court says it is, and these days that’s a moving target. Moreover, the purpose of a pretrial stay to litigate immunity is to spare officials from the burdens of trial — which is wholly irrelevant at this juncture. But Blanche and Bove bluster their way through it, huffing that “undergoing a criminal sentencing is the most extreme example of ‘hav[ing] to answer for his conduct in court,’ — exactly what the doctrine of Presidential immunity forbids and why an automatic stay is mandated.”

A cynical person might suggest that Trump’s lawyers had gamed the system by not appealing the immunity ruling in December when it was issued, instead waiting until the last possible second to seek review in hopes of running out the clock. That person might also note the inherent tension between the claims that it violates presidential immunity to force Trump to litigate criminal appeals after he’s sworn in, and the demand that sentencing be stayed to allow him to litigate his criminal appeals.

Trump demanded a response from the court by 2pm, warning that he’ll “file an Article 78 proceeding as well as a direct appeal in the Appellate Division, First Department, seeking review of the Court’s two recent incorrect rulings on Presidential immunity” if he doesn’t get his way. As of this writing, neither Justice Merchan’s response nor any appeal has hit the public docket.

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The motion to dismiss was packed with the usual hyperbole and ad hominem attacks from attorneys Todd Blanche and Emil Bove, who will soon be running the Justice Department.

“No President of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump in connection with the biased investigation, extraordinarily delayed charging decision, and baseless prosecution that give rise to this motion,” they bloviated.

At bottom, they objected to testimony by Trump’s White House aides, Hope Hicks and Madeleine Westerhout, along with the introduction of a federally mandatory financial disclosure and several tweets issued while Trump was in office. These violate the Supreme Court’s ruling in Trump v. US that evidence of official acts must be excluded to ensure that the president acts boldly and without fear that he’ll go to jail for doing crimes, they insist. They largely failed to lodge these objections at trial, however, suggesting that they did not anticipate the Supreme Court being crazy enough to buy what they were selling. (Oh ye of little faith!)

But Blanche and Bove aren’t just nasty. They’re creative, too! So they had several interesting theories why their untimely objections should carry the day. Maybe Trump v. US required a special hearing on immunity claims, and the lack of one constitutes a mode of proceedings error that does not require preservation. Maybe they refrained from objecting too much “to avoid antagonizing the court or testing its patience,” and so Justice Merchan should be a pal and treat those objections as if they’d been timely lodged. Maybe presidential immunity is a superpower that trumps all others.

Justice Merchan was not persuaded, and he noted that “the Trump Court” (cough) took pain to affirm that it wasn’t murdering all prosecutions of former presidents in their cribs, but rather setting out a rubric to separate official from unofficial conduct:

In attempting to assuage the concerns expressed by the dissent, Chief Justice Roberts succinctly clarified the majority’s holding. “As for the dissent, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today – conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine ‘in the first instance whether and to what extent Trump’s remaining alleged conduct is entitled to immunity;” the Trump Court expressly indicating that its holding is no broader than that.

And so Justice Merchan took the Court at its word, finding that “the evidence related to the preserved claims relate entirely to unofficial conduct and thus, receive no immunity protections.” Rejecting the mode of proceedings argument, Justice Merchan noted that US District Judge Alvin Hellerstein conducted a fact-based review pursuant to Trump’s first federal removal petition and concluded that covering up a hush money payment to a porn star by dummying up fraudulent invoices to your lawyer was not official conduct. And so, Justice Merchan reasoned, “It is therefore logical and reasonable to conclude that if the act of falsifying records to cover up the payments so that the public would not be made aware is decidedly an unofficial act, so too should the communications to further that same cover-up be unofficial.”

The court added that, even if the evidence adduced at trial were official in nature, their introduction “poses no danger of intrusion on the authority and function of the Executive Branch.”

And finally, if all the above was wrong, then it was harmless error since there was so damn much evidence against Trump that it wouldn’t have made any difference.

As of this writing, there is still a pending Motion to Dismiss Based on Various Previously Rejected Theories and Also I WON THE ELECTION. There’s also some rumbling from the defense about juror misconduct. It’s not clear what that involves, although the judge characterized it as a letter from the defense which “consists entirely of unsworn allegations.” That should appear on the docket in the next few days, if only in redacted form.

This case is hanging on by a thread. But it is hanging on.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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AT THE VERY SAME TIME, HE IS REFUSING TO PARTICIPATE IN THE PRESIDENTIAL TRANSITION PROCESS BECAUSE IT WOULD REQUIRE HIM TO SIGN AN ETHICS PLEDGE TO AVOID CONFLICTS OF INTEREST ONCE IN OFFICE.

It’s … a lot.

New York Supreme Court Justice Juan Merchan was scheduled to rule yesterday on Trump’s motion to set aside his conviction based on the presidential immunity decision in Trump v. US. The Supreme Court majority, in their infinite wisdom, ruled that evidence of official acts can’t be used to convict a president of crimes, even if those crimes have nothing to do with his office. Trump’s conviction was secured in part thanks to testimony from former White House aides Hope Hicks and Madeleine Westerhout, so Trump demanded that the verdict be vacated. Trump’s own lawyers demanded that any ruling, along with Trump’s sentencing, be postponed until after the election to avoid the appearance of political interference.

But Justice Merchan did not issue that ruling. Instead he acceded to a joint request by Manhattan District Attorney Alvin Bragg and Trump’s lawyers Todd Blanche and Emil Bove to — once again! — stay all deadlines for a week to allow the DA to apprise the court of “appropriate steps going forward.”

In the attached correspondence, ADA Matthew Colangelo cited the “unprecedented circumstances” which “require careful consideration to ensure that any further steps in this proceeding appropriately balance the competing interests of (1) a jury verdict of guilt following trial that has the presumption of regularity; and (2) the Office of the President.”

Of course, Donald Trump is not the president, and requiring him to sit in a courtroom for an hour will make no difference to the presidential transition. Nevertheless, Blanche and Bove insist that “The stay, and dismissal, are necessary to avoid unconstitutional impediments to President Trump’s ability to govern.”

In support of this, they cite to the Presidential Transition Act of 1963, specifically this note:

The Congress declares it to be the purpose of this Act to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President. The national interest requires that such transitions in the office of President be accomplished so as to assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both domestic and foreign. Any disruption occasioned by the transfer of the executive power could produce results detrimental to the safety and well-being of the United States and its people. Accordingly, it is the intent of the Congress that appropriate actions be authorized and taken to avoid or minimize any disruption. In addition to the specific provisions contained in this Act directed toward that purpose, it is the intent of the Congress that all officers of the Government so conduct the affairs of the Government for which they exercise responsibility and authority as (1) to be mindful of problems occasioned by transitions in the office of President, (2) to take appropriate lawful steps to avoid or minimize disruptions that might be occasioned by the transfer of the executive power, and (3) otherwise to promote orderly transitions in the office of President.

In 2020, Trump doggedly obstructed the presidential transition, refusing to allow the GSA Administrator Emily Murphy to sign the certificate of ascertainment which would allocate office space, brief the incoming administration, or release statutorily allocated funds to the incoming Biden administration. When Murphy finally did sign it, she insisted that she’d received no direction from the White House to delay her determination and whined that she “did, however, receive threats online, by phone, and by mail directed at my safety, my family, my staff, and even my pets in an effort to coerce me into making this determination prematurely.”

Trump’s absolute refusal to participate in the presidential transition last time forced Congress to modify the Electoral Count Act to remove the GSA Administrator’s ability to unilaterally hold up the transition process. And yet, just four years later, he is so deeply committed to ensuring a smooth transition that he can’t spare an hour for the orderly administration of justice on a day specifically requested by his own counsel just three months ago.

Sometimes cheaters win.

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In a one-page order, the DC Court of Appeals noted that it had ordered him on July 25 “to show cause why reciprocal discipline should not be imposed” after America’s erstwhile Mayor was relieved of his license to practice law in the state of New York. Giuliani was apparently preoccupied stumbling into and out of bankruptcy and generally flopping around the federal docket like a beached orca as he desperately attempts to fend off the $148 million judgment in favor of Ruby Freeman and Shaye Moss, the Atlanta poll workers he defamed. And so Rudy just didn’t both to respond to the show cause order.

Under local precedent, “The imposition of identical discipline when the respondent fails to object should be close to automatic, with minimum review by both the Board and this court.”

“[I]t appearing that respondent has not filed a response, it is ORDERED that Rudolph W. Giuliani is hereby disbarred from the practice of law in the District of Columbia, nunc pro tunc to August 9, 2021,” the three-judge panel wrote yesterday.

It’s an anticlimactic end for the once-storied US Attorney for the Southern District of New York.

Giuliani emerged from failed runs for senate and president with some shred of his dignity intact, and managed to eke out a living endorsing whichever reverse mortgage or gold futures advertisers would have him, before being “rescued” by Trump in his rise to the presidency. Giuliani hoped for a job in the Trump administration, perhaps as secretary of state or attorney general. Those posts never materialized, but his proximity to power did permit Giuliani to make a nice living for the the first three years of the Trump administration whoring himself as a “security consultant” from cushy offices housed inside Greenberg Traurig. That association soured in 2018 after Giuliani admitted on air with Sean Hannity that Cohen had paid hush money to Stormy Daniels and “funneled” the reimbursement through his law firm — something he insisted was perfectly normal and routine. But Rudy was still able to rent himself out to overseas strongmen, and he got to go on TV as the president’s personal lawyer. So he didn’t seem to mind much.

Things really went off the rails in year four when Rudy decided he’d “help” his benefactor by traipsing around Ukraine in pursuit of dirt on Joe Biden and his son, Hunter. After steering Trump into his first impeachment — “Do us a favor, though!” — Giuliani set about laying the seeds for the second as he strove to overturn Biden’s electoral victory.

This finally proved to the seed of his own professional undoing, as Giuliani flogged lies about fraud and pressured elected officials to steal Biden’s electoral votes or try to pass off fraudulent ones. Giuliani’s only outing in court on Trump’s behalf was an ignominious disaster, with the attorney seemingly flummoxed by basic legal questions from US District Judge Matthew Brann.

“Maybe I don’t understand what you mean by strict scrutiny,” he wondered, before deciding that he’d like “the normal one.”

The efforts to overturn democracy garnered him multiple bar complaints. He was suspended in New York in 2021 and permanently disbarred there in July. DC moved to disbar him reciprocally, and after initially resisting, he appears to have simply wandered off.

Ah well, we’ll always have Rudy Coffee, or at least until Freeman and Moss seize it anyway.

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It was an odd maneuver, coming a year after Judge Alvin Hellerstein unceremoniously booted Trump’s first claim that he was doing official president stuff when he reimbursed Michael Cohen for the Stormy Daniels hush money payment and three whole months after the jury reached its verdict in the state case. The applicable statute says that removal should take place within 30 days of arraignment, although it does allow for later filing with permission of the judge for good cause shown. And indeed the filing was immediately kicked for being docketed without leave of the court.

Trump spox Stephen Cheung assured MSNBC’s Lisa Rubin that this was all a simple misunderstanding.

“In a standard procedural move, today, the clerk’s office asked President Trump’s legal team to file in a specific format and we are working with them to make sure it is properly filed on the electronic system,” he insisted.

This was sort of true, at least for a couple days. But this week, when the court reopened, Trump’s lawyers Emil Bove and Todd Blanche refiled their document attached to a breezy, two-page memorandum of law suggesting that there was very definitely “good cause shown” for removal, which Judge Hellerstein would know if he read the motion they filed last week.

This was perhaps a strategic error. Although in light of the brush off they got last year, it’s unlikely that a more deferential approach would have changed the outcome. The court was utterly unreceptive to the argument that Trump is entitled to federal removal because official acts evidence was wrongly admitted at his state trial, and/or Justice Juan Merchan is too biased to sentence him on September 18.

“This Court does not have jurisdiction to hear Mr. Trump’s arguments concerning the propriety of the New York trial,” Judge Hellerstein wrote dismissively.

“Instead, the proper recourse for parties seeking to remedy alleged errors made during a state trial is to pursue a state appeal or, at the highest level, to seek review from the Supreme Court of the United States,” he went on. “It would be highly improper for this Court to evaluate the issues of bias, unfairness or error in the state trial. Those are issues for the state appellate courts.”

As for Trump’s insistence that the immunity decision changes everything, the court scoffed that “Nothing in the Supreme Court’s opinion affects my previous conclusion that the hush money payments were private, unofficial acts, outside the bounds of executive authority.”

And so it’s on to the Second Circuit, where Trump has already docketed his appeal. He has not, however, moved to expedite it — at least as of this writing. Which means that it’s highly unlikely that he’s going to get relief in time to put off the sentencing he so dreads.

In the meantime, the District Attorney’s Office in Manhattan sent Justice Merchan a letter last week which was published to the docket on Tuesday. It reiterates that the state takes no position on his request to postpone his sentencing but observes that his constant bellyaching about it coming so close to the election is RICH considering that Trump himself spammed the court with garbage motions for two straight years.

We note that the concerns defendant expresses about timing are a function of his own strategic and dilatory litigation tactics: This second notice of removal comes nearly ten months after defendant voluntarily abandoned his appeal from his first, unsuccessful effort to remove this case; three months after he was found guilty by a jury on thirty-four felony counts; and nearly two months after defendant asked this Court to consider his CPL § 330.30 motion for a new trial.

They tactfully omit the month-long delay Blanche and Bove netted by falsely accusing the DA of withholding evidence on the eve of trial.

Pepperidge Farm remembers! Now let’s see if the Second Circuit remembers, too.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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In June of 2023, when Trump first sought to remove the case, Judge Alvin Hellerstein ruled that none of the underlying conduct related to his official presidential duties. But now Trump claims that the Supreme Court’s immunity ruling changes the landscape completely and entitles him to post-trial relief.

At first blush, it appears to be going poorly. The filing was automatically rejected on Friday evening because he had no right to file it.

Under 28 USC § 1442, a defendant charged with conduct taken “under color” of office may remove his case to federal court. But § 1455 specifies that removal should take place within 30 days of arraignment, “except that for good cause shown the United States district court may enter an order granting the defendant or defendants leave to file the notice at a later time.” Trump failed to seek such permission, and so he got summarily kicked.

“Contrary to the wishes of Radical Liberals, President Trump’s powerful petition to remove the Manhattan DA’s Witch Hunt to federal court has not been ruled on by a judge,” Trump’s spokesweirdo Stephen Cheung told MSNBC’s Lisa Rubin. “In a standard procedural move, today, the clerk’s office asked President Trump’s legal team to file in a specific format and we are working with them to make sure it is properly filed on the electronic system.”

Which is kind of true.

Yesterday morning, Trump tried again docketing a two-page memorandum of law in support of his motion for relief, that gestured toward “paragraphs 12 and 116 – 146 of the Second Removal Notice” and demanded that Judge Hellerstein punch his ticket — a punch which would itself have the desired effect of barring the court from sentencing their client, since § 1455 provides that “a judgment of conviction shall not be entered unless the prosecution is first remanded.”

The underlying argument is, shall we say, creative. Last year when he tried to convince the court that he’d been paying Michael Cohen $35,000 per month for actual legal work, Trump specifically disavowed any claim of presidential immunity:

DANY argues that there is a “serious question . . . whether a former President can claim absolute presidential immunity against criminal liability.” This Court need not decide this “serious question” for purposes of this motion because President Trump has not raised it in his removal notice.

Trump’s immunity claims with the trial court were similarly rejected for being untimely raised.

These are what you might call “bad facts.” And so Trump’s lawyers Todd Blanche and Emil Bove simply ignore them and shout that the judge and indeed the entire state of New York is BIASED. In fact, the filing is more notable for what it leaves out rather than what it includes.

There’s no mention of Judge Hellerstein’s conclusion last year that none of the implicated conduct was part of Trump’s official duties. Blanche and Bove nimbly draft around the fact that the dispute involves evidence which is presumptively barred by the SCOTUS immunity ruling — specifically testimony by Trump’s aide Hope Hicks — and not any official act itself. They also omit to mention that they are currently pursuing identical claims in state court, and that they vigorously pressed those claims during the nine weeks since the Supreme Court ruled in Trump v. US. It was only when it became clear that the New York appeals courts would not save them that they came racing back to Hellerstein — a classic case for Younger abstention.

Instead Blanche and Bove advance a bizarre theory about the end of Chevron deference (which they call Raimondo instead of Loper-Bright, for reasons unclear) and the Supreme Court’s ruling in Trump v. Anderson, which barred states from kicking him off the presidential ballot just because he tried to overthrow the government.

They seem to be suggesting that the prosecution based its felony claims on Trump covering up violations of state and local election law, and that in turn violates the Supremacy Clause? Also the FEC is now illegal under Loper Bright? And taken with Trump v. US, that means …

Well, look, no one actually knows what it means. But if Trump can get Judge Hellerstein to take the bait, he can postpone the sentencing and then fight about it after the election.

These three Supreme Court decisions “are as conclusive as the laws of Congress made in pursuance of the Constitution.” Cooper, 73 U.S. at 253. Treating them as such—by authorizing removal and permitting appropriate dismissal ligation in this District—is “essential to the peace of the nation, and to the vigor and efficiency of the government.”

And if the facts and the law are against you, pound the table.

People of The State of New York v. Trump [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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DANY argues that there is a “serious question . . . whether a former President can claim absolute presidential immunity against criminal liability.” This Court need not decide this “serious question” for purposes of this motion because President Trump has not raised it in his removal notice.

What last week's second motion for renewal presupposes is … maybe he didn’t?

In May, the former president was convicted by a jury of 34 counts of creating a false business record to cover up another crime. He’s scheduled to be sentenced on September 18, and, judging by his increasingly desperate efforts to forestall the hearing, seems to think that it will be disastrous for his presidential campaign.

Trump has moved the trial court to vacate the verdict in light of the US Supreme Court’s immunity ruling, since his conviction was secured based in part on testimony of White House aides Hope Hicks and Madeline Westerhout, in contravention of the newly invented rule that official acts cannot be used as evidence, even when the crime charged is unrelated to a president’s official duties. He also requested to delay his sentencing until after the election, urging the court to consider the political calendar, even as he decries the prosecution as a purely political exercise.

New York Supreme Court Justice Juan Merchan promises to rule on the motion by September 16. Nevertheless, Trump’s lawyers have barged into the Southern District of New York demanding that US District Judge Alvin Hellerstein snatch the case away from Justice Merchan before he can finalize the judgment.

This would appear to be a classic case of Younger abstention, since the identical issue is currently under consideration in state court. But Trump’s lawyers Todd Blanche and Emil Bove have an answer for that and it is NO MORE CHEVRON DEFERENCE:

In Trump v. Anderson, the Supreme Court warned that states’ “power over governance . . . does not extend to federal . . . candidates.” 601 U.S. 100, 111 (2024) (emphasis in original). In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled the Chevron decision, which required deference to agency interpretations, and implored courts to rely on their core interpretive competencies when interpreting statutes. 144 S. Ct. 2244, 2254, 2273 (2024). Anderson and Raimondo abrogated prior decisions that deferred to the FEC’s restrictive interpretation of the preemption clause in the Federal Election Campaign Act (“FECA”), which applies broadly to “any provision of State law with respect to election to Federal office” and therefore voids the New York laws that DANY applied to the 2016 Presidential election to try to manufacture nonexistent crimes. 52 U.S.C. § 30143.

At the risk of engaging with absolute bad faith horseshit like it’s real law, we’d note that even this SCOTUS wasn’t willing to detonate four decades of precedent in its zeal to blow up the administrative state. As Chief Justice Roberts wrote in Loper Bright, “[W]e do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” (The scare quotes around “interpretive methodology” are implied.)

Judge Hellerstein has been here with Trump before. In July of 2023, he tossed Trump’s first attempt to remove his New York criminal case to federal court under 28 U.S.C. § 1442. The court rejected Trump’s factual claim that Michael Cohen had been doing IRL legal work to earn his $35,000 “retainer” payments, as well as the legal argument that this work involved cleaning up Trump’s business so he could do president stuff, and was thus undertaken “under color of office.”

“Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty,” Judge Hellerstein wrote. “Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty.”

Trump’s non-Chevron arguments for getting a second bite at the apple rest on the assumption that Justice Merchan’s failure to recuse entitles Trump to avail himself of “an unbiased federal forum to litigate at least two dispositive federal defenses: Presidential immunity and FECA preemption.” His lawyers scoff at Justice Merchan’s rejection of their immunity claim as untimely, coming as it did on the eve of trial, long after the motions deadline had passed, and they make no explanation for waiting 60 days after SCOTUS dropped its immunity ruling demand post-trial federal removal. Nor did they seek leave to file at such a late date , as would appear to be required under 28 USC 1455(b)(1) (h/t to MSNBC’s Lisa Rubin). But they said “good cause” about fifty times, so perhaps the court will overlook it.

“The First Removal Notice included a defense sounding in Presidential immunity but could not have anticipated the subsequent federal developments culminating in Trump v. United States,” they write, while simultaneously excoriating the prosecutors for running “roughshod over the Supremacy Clause—as related to Presidential immunity and preemption—in their desperate efforts to obtain an unsupported conviction.”

It’s the usual grievance-laden rant, replete with conclusory allegations and ad hoc attacks on the trial judge — par for the course from a defendant who tried to ward off a civil fraud suit by first suing New York Attorney General Letitia James in the Northern District of New York and then in Palm Beach County Civil Court. It didn’t work then, and it won’t work now — at least not with Judge Hellerstein. But six Supreme Court justices were willing to invent a doctrine of absolute presidential immunity to save his orange keister before so … who even knows.

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The letter was in response to a demand from Trump to postpone the September 18 sentencing date until “after the election” in light of SCOTUS’s July 1 immunity ruling, which went so far as to bar evidence of official acts, even when the crime charged is not official. Justice Merchan has promised to rule by September 16 on Trump’s motion to vacate the verdict and dismiss the underlying indictment on grounds of presidential immunity, since the conviction and underlying indictment were both secured using testimony of former White House aides. Trump argues that a sentencing hearing on September 18 won’t allow him time to seek review and/or a stay from an appellate court.

Noting that getting the former president and his security detail into and out of the courthouse is a major undertaking, the prosecutors seemed to accede to a delay of the sentencing date so as to avoid forcing court staff to scramble to plan for a hearing which might be canceled at the last moment by an emergency stay.

“The Supreme Court’s recent decision did not consider whether a trial court’s ruling on that distinct evidentiary question is immediately appealable, and there are strong reasons why it should not be,” ADA Matthew Colangelo wrote. “Nonetheless, given the defense’s newly-stated position, we defer to the Court on whether an adjournment is warranted to allow for orderly appellate litigation of that question, or to reduce the risk of a disruptive stay from an appellate court pending consideration of that question.”

But much of the DA’s letter was taken up with the rhetorical equivalent of scratching your face with your middle finger.

To be fair, Trump’s lawyers Todd Blanche and Emil Bove, both alums of the Southern District of New York, started it last week with an unsubtle swipe at the state prosecutors:

As relevant here, after wrongly denying that Presidential immunity existed for months, DANY purported to authoritatively address the scope of Presidential power and the immunity doctrine, inaccurately, in a brief filed just 23 days after the Trump decision. They did so despite only limited federal litigation experience, with the notable and telling exception of a former high-ranking official from the Biden Administration, and without any input from the federal government that they felt worth mentioning.

The DA replied by noting that Trump’s fancypants lawyers had botched the state procedures when they suggested that “DANY should not be permitted to file a public sentencing submission that will include what the Supreme Court described as the ‘threat of punishment,’ in a manner that is personally and politically prejudicial to President Trump and his family, and harmful to the institution of the Presidency[.]”

Defendant’s concern about a “public sentencing submission” from the People is also misplaced. Any pre-sentence memorandum the People submit would be sealed. CPL § 390.50(1). The only way the memorandum would become public is if the Court orders otherwise or the defendant unlawfully discloses it.

They went on to observe that states are also responsible for adhering to federal law, and don’t need SDNY to ‘splain them how to apply the Supreme Court’s newly articulated immunity standard:

Finally, defendant’s apparent insinuation that state prosecutors are incapable of applying federal constitutional law is fundamentally flawed, given that the People and this Court protect and apply federal constitutional rights every day.

Gosh, it’s so weird how everyone thinks the SDNY guys are all assholes.

People of the State of New York v. Donald J. Trump [Docket via Law360]

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Toward that end, AG Shitpost staged an absolute banger of a stunt at the Supreme Court last month with a trollsuit demanding that the justices halt New York state’s prosecution of Donald Trump to protect the First Amendment rights of Missouri voters.

“Missouri respectfully submits that the forgoing violations establish considerable harms to voters and electors in Missouri, who will be precluded from fully engaging with and hearing from a major-party Presidential candidate in the run up to the November election,” he wrote, referencing the gag order in Trump’s false business records case which is in place pending sentencing. “These harms are a direct consequence of New York’s calculated, unprecedented decision to prosecute Trump for alleged bookkeeping offenses just months before the Presidential election.” Naturally, Florida, Iowa, Alaska, and Montana filed an amicus brief, because stupid is a deadly contagion.

Bailey requested leave to file a bill of complaint, along with a stay of “any gag order or sentence against Trump until after the November Presidential election.” Then he demanded a preliminary injunction on the theory that “New York’s actions impose a sovereign harm to the ability of Missouri’s 10 electors to exercise their federal authority.” (The huge bong rip is implied.)

The state of New York responded that Missouri wasn’t being harmed, Trump himself was litigating the identical issue in state court, and OMG that’s now how standing works. (The huge eye roll is implied.)

Monday, the Supreme Court scraped that rancid smear of dogshit off its judicial shoe.

“Missouri’s motion for leave to file a bill of complaint is denied, and its motion for preliminary relief or a stay is dismissed as moot,” the Court wrote in a miscellaneous order published Monday. “Justice Thomas and Justice Alito would grant the motion for leave to file the bill of complaint but would not grant other relief.”

This is presumably a comment on Thomas and Alito’s beliefs about the Supreme Court’s original jurisdiction, rather than a comment on the case itself, since the order would appear to suggest that the two conservative justices would have denied Bailey’s requested injunction. That would accord with the order denying Texas AG Ken Paxton relief in a 2020 trollsuit against Pennsylvania seeking to prevent its certification of Biden’s win. Four years ago, Thomas, joined by Alito, wrote, “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”

And so it’s on to the next trollstunt by Bailey. Or perhaps not! Yesterday he saw off Donald Trump’s personal lawyer Will Scharf, who is being heavily backed by SCOTUS Svengali Leonard Leo, in a primary.

“Missouri has two Highly Respected Candidates running for the important Office of Attorney General, your current A.G., Andrew Bailey, and one of my very talented lawyers in private life, Will Scharf,” Trump wrote on Truth Social. “Both have fearlessly confronted the Radical Left’s destructive Lawfare and Weaponization of “Justice” with Great Wisdom, Courage, and Strength!”

No honor among thieves!

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Even the New York false business records conviction is in jeopardy, since the Court went out of its way to invent an immunity not just for official acts, but for evidence of official acts. Paying off a pornstar and then covering it up by laundering the payments through your private business is unquestionably unofficial conduct, but Trump’s conviction was secured with testimony from two presidential aides and his federal financial disclosure. So, even if Justice Juan Merchan rules that this was harmless error, it will be tied up in appeals for years. Sentencing is set for September, conveniently injecting Trump’s false business records conviction into the news cycle at regular intervals for the foreseeable future, and potentially pulling him off the campaign trail for court appearances.

And while Trump may escape a jail cell, he will not escape having his shit on main in a whole lot of courtrooms this fall. Some of that is by his own choice, as in the defamation suit he filed in Florida against ABC and George Stephanopoulos, who repeatedly suggested that Trump was an adjudicated rapist. In fact, the jury was unable to conclude that Trump managed to forcibly penetrate E. Jean Carroll with his penis, but did conclude that he was able to pin her against the wall while jamming his fingers inside her. Trump is inexplicably suing to remind us all once again that he is only a digital rapist, not a penile one. The case is set to go to trial in February, and discovery is ongoing after Judge Cecilia Altonaga denied ABC’s motion to dismiss.

Meanwhile, appeals of the $88 million verdicts in the Carroll cases continue apace, with oral argument before the Second Circuit set for September 6. Similarly, oral arguments in Trump’s appeal of the $354 million civil fraud verdict will likely take place in September or October before the New York Appellate Division.

On the criminal front, the Fulton County election interference case is functionally on ice, as is the Florida documents case, with the Eleventh Circuit asking the special counsel to brief his appeal of Judge Cannon’s Special Counsels Are Unlegal Akshully dismissal ruling in October.

But in DC, the federal election interference case is just getting back under way. Approximately 37 seconds after the Supreme Court relinquished control of the immunity decision, the DC Circuit remanded the case to Judge Tanya Chutkan to sort out the godawful mess SCOTUS made of it. She promptly set a scheduling hearing for next Friday to canvas the parties on how they intend to pick up the pieces. She also ruled on two of Trump’s pending motions to dismiss.

The one based on “statutory grounds,” in which the defendant claimed that nothing he did was against the laws, she denied without prejudice, inviting him to “file a renewed motion once all issues of immunity have been resolved.” This will presumably include an entire new section on 18 USC § 1512(c)(1), in light of the Supreme Court’s bizarro ruling in Fischer v. US that obstruction of an official proceeding has to involve destruction of paper documents.

Judge Chutkan also denied the motion to dismiss based on selective and/or vindictive prosecution. And this ruling was with prejudice in the extreme.

“At the outset, the court must address—as it has before—Defendant’s improper reframing of the allegations against him,” she began, adding that “The Indictment does not charge Defendant for publicly disputing the election outcome and merely ‘working with others’ to propose alternate electors.”

Trump’s legal theories in the underlying motion are beyond preposterous. Despite having promised to pardon the hundreds of January 6 defendants convicted for their efforts to block certification of President Biden’s electoral win, he complains that the government discriminated against him by treating him worse than his comparators. He claims that the appointment of a special counsel after he declared his candidacy is prima facia evidence of a plot to indict him, rather than the necessary protection to remove an ongoing investigation of a rival from the purview of the sitting president. He argues that articles in the Times and the Post reporting that Biden privately expressed his wish that Attorney General Merrick Garland would be more aggressive in his treatment of Trump was an express order in the form of a leak. And he insists that the indictment in DC must be vindictive, coming as it did on the heels of his decision to plead not guilty in the Florida documents case.

“Precedent squarely forecloses that line of reasoning,” Judge Chutkan scoffs, adding that “If vindictiveness could be established by new charges following a not guilty plea or a defendant’s public criticism of the prosecution, then defendants could effectively immunize themselves from superseding indictments by taking such action. That cannot be the law.”

This does not sound like a judge who is going to tolerate a lot of bullshit. But Trump’s lawyers are clearly about to launch an avalanche of it, insisting that the election interference case must be yanked out root and branch since the grand jury indictment was secured using testimony which is now excluded under the Supreme Court’s ruling. They’ll argue that every bit of the indictment, from the speech on the Ellipse to the pressure campaign to get Mike Pence to throw out valid slates of electors was part of his presidential duty.

It’ll be a massive, ugly fight. And at least the beginning of it will take place in the public eye, since Judge Chutkan scheduled the first hearing for August 16. Gentlemen, start your engines.

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On Wednesday, Donald Trump filed his “post trial presidential immunity motion” in the New York false business records case. It’s a typical Trump motion, full of bombast, snark, and cites to his favorite legal scholars, Jonathan Turley, Gregg Jarrett, and Andrew McCarthy.

“No President of the United States has ever been treated as unfairly and unlawfully as District Attorney Bragg has acted towards President Trump in connection with the biased investigation, extraordinarily delayed charging decision, and baseless prosecution that give rise to this motion,” Trump’s lawyers Todd Blanche and Emil Bove begin, making clear that they will once again be using the New York Supreme Court docket as a venue for performative screeching.

This is particularly annoying since they’re quite likely to succeed, thanks to six conservative justices who just invented an executive immunity broader than even Trump asked for. And so, even though Trump is charged with creating false records at his personal business, a crime which could not possibly implicate his official duties, he may well be able to vacate his conviction because it was secured with evidence of official acts.

To wit, White House aides Hope Hicks and Madeline Westerhout testified about Trump’s communication habits in the White House, as well as his relief that the story about the Stormy Daniels payoff came out in 2018, rather than in 2016 during the election itself. This was cited as evidence that Trump paid off Daniels to influence the election, not, as he suggested, to protect his family. But Chief Justice Roberts worries that a president will be deterred from acting “boldly and fearlessly” if he has to worry about being prosecuted for crimes.

“If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated,” he tut-tutted, adding that “Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.”

But the Court went even further than that, insisting that public official acts must be “presumptively immune,” and suggesting that Trump’s tweets are off limits in court because “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.” Of course Blanche and Bove are going to argue that Trump’s public tweets that he paid Michael Cohen a “retainer” as well as his admissions of indebtedness on public financial disclosures are off limits. And they’ll probably win! Although their claims that all Trump’s communications with and about Cohen are off limits is probably pushing it a bit too far.

The only potential counter is that they failed to present these immunity claims in a timely fashion. Trump first moved to adjourn the trial based on presidential immunity on March 7, just two weeks before the trial was due to commence on the 25th. Under CPL § 255.20(1), “all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial.” And so Justice Juan Merchan rejected the motion as untimely.

“The Defendant had ample notice that the People were in possession of, and intended to use, the various statements allegedly made by Defendant on social media, in public, and in various interviews,” the court wrote, rubbishing Trump’s excuses for the late filing. “He was also well aware that the defense of presidential immunity, even if unsuccessful, might be available to him.”

This isn’t the first time Trump has been here. In the E. Jean Carroll defamation case, he tried to assert an immunity defense on the eve of trial, arguing that his failure to raise it in timely fashion did not constitute a waiver, since presidential immunity is unwaivable. Judge Lewis Kaplan batted this claim away, as did the Second Circuit. Odds that we see him try to get the $88 million in defamation damages tossed based on presidential immunity: 100 percent.

SCOTUS’s recent immunity ruling failed to mention whether the presidential immunity defense could be waived, but if they can blow up both the civil and criminal verdicts at the same time … odds are they will.

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Perhaps the most gonzo bit of the opinion is the bar on using official acts as evidence of other crimes.'

“If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the 'intended effect' of immunity would be defeated,” the Chief Justice wrote, hyperventilating that the fear of prosecution might deter future presidents from “boldly” committing crimes. And testimony from his aides is presumptively off limits, as well, lest the president be forced to exercise caution when asking his advisors to join him in criming.

And so it was inevitable that Blanche would argue that the prosecution wrongly introduced evidence of “official acts” as evidence of Trump’s intent to cover up the hush money payment in 2016 to Stormy Daniels through a series of sham payments to Michael Cohen. Those official acts included tweets claiming the payments were a “retainer,” as well as public statements about Daniels made on Air Force One.

Mr. Cohen, an attorney, received a monthly retainer, not from the campaign and having nothing to do with the campaign, from which he entered into, through reimbursement, a private contract between two parties, known as a non-disclosure agreement, or NDA. These agreements are.....

— Donald J. Trump (@realDonaldTrump) May 3, 2018

Blanche also took exception to testimony by Hope Hicks, along with the introduction of a 2018 disclosure to the Office of Government Ethics in which Trump again characterized the payments as a retainer.

Trump made this argument on March 7, just 18 days before the trial was originally scheduled to begin on March 25. The motion was rejected as untimely, with Justice Juan Merchan noting that “The procedural history of the instant matter, together with the procedural history of the Federal Insurrection Matter, leave no doubt that Defendant was aware that the defense, even if unsuccessful, was available to him well before March 7, 2024, when this motion was filed.” That was a reference to Trump’s immunity motion in DC, which was filed in October of 2023 and eventually led to yesterday’s debacle.

Nevertheless, Blanche insists that “Under Trump, this official-acts evidence should never have been put before the jury,” and risks manifesting the “Executive Branch that cannibalizes itself” warned of by the Chief Justice. How the District Attorney of New York is part of a cannibalistic executive branch is left as an exercise for the reader.

In response, the DA notes that Blanche, in his zeal to expose the DA as a modern day Hannibal Lecter, failed to ask for an adjournment of the July 11 sentencing.

“Although we believe defendant’s arguments to be without merit, we do not oppose his request for leave to file and his putative request to adjourn sentencing pending determination of his motion,” they added. “We respectfully request a deadline of July 24, 2024—two weeks after defendant’s requested deadline—to file and serve a response. ”

Chaos chaos chaos! Thanks, Mr. Chief Justice!

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The appellate pivot has delivered some less than elegant commentary, with Trump’s lawyers sounding positively confused when trying to explain their handling of the defense so far. And there’s a good reason: the best legal case to be made for Donald Trump still politically ends in conceding to voters that he’s a criminal.

Barring jury nullification, this case was always destined for the appellate process because there were never particularly compelling factual questions for the jury. Did Trump pay Stormy and then log it as a legal expense to hide it? Yes. Is that legally sufficient to convert the case to a class E felony? Not the jury’s job.

So how do Trump’s fans extricate their hero out this mess? Jonathan Turley bursts through the wall like MAGA Kool-Aid man to suggest JUDGE BIAS!!!

To his credit, CNN legal analyst Elie Honig has previously said that this case was legally dubious, uniquely targeted Trump and could not succeed outside of an anti-Trump district. On the judge, he recently challenged critics on the fairness of assigning a Biden donor who has earmarked donations for “resisting the Republican Party and Donald Trump’s radical right-wing legacy.” He asked “Would folks have been just fine with the judge staying on the case if he had donated a couple bucks to “Re-elect Donald Trump, MAGA forever!”? “Absolutely not.”

Only a couple of bucks? Seems pretty fair over whatever Aileen Cannon’s doing. There are many Republican-appointed judges out there with ties to the party that can nonetheless run a professional courtroom. Plus, overturning a conviction because of “judge bias” requires, you know, something that altered the outcome of the case. But the folks flogging the “bias” claim seem loath to identify anything but generalized vibes.

And Turley’s decision to hang his hat on Honig’s reasoning is rich. Honig has been, rightly, dragged to hell and back for his phoned-in coverage of this case.

I truly have no problem with folks raising good faith issues with the law, but can you please do your homework first, as noted by @rgoodlaw ⬇️ https://t.co/7qJf8bAYfe

— Andrew Weissmann (weissmann11 on Threads/Insta)🌻 (@AWeissmann_) June 2, 2024

Live by the hot take, die by the hot take.

Turley, amusingly if ill-advisedly, continues to advance appellate theories ranging from the idea that federal campaign violations cannot form the basis of a conviction because Trump wasn’t charged with them — not how this works — to the prejudicial impact of Stormy’s testimony about the sexual encounter, which was only brought in because THE DEFENSE decided to say she was lying about it in the opening.

Even with all of the reversible errors, some of us held out hope that there might be a hung jury. That hope was largely smashed by Merchan in his instructions to the jury. The court largely used standard instructions in a case that was anything but standard.

Jonathan Turley is arguing that the problem in this case is that Trump was held to the same standard as any other defendant. Absolutely flawless work, prof.

However, the instruction also allowed for doubt as to what the jury would ultimately find. When the verdict came in, we were still unsure what Trump was convicted of.

Um… falsifying business records in the first degree. It actually says so pretty clearly. The argument Turley is trying to make is that the jury did not reach a unanimous verdict because it was instructed that — while it needed to unanimously agree that Trump falsified records with the intent to further another crime — it need not unanimously agree on which crime they thought Trump intended to further. But that’s why the case isn’t about those other crimes — it’s about FALSIFYING BUSINESS RECORDS.

This instruction is not nefarious and it’s truly amateur hour for a quote-unquote legal analyst like Turley to pretend it is. By way of analogy, this is akin to convicting someone of murdering their wife when one juror thinks he did it to collect on insurance and another thinks it was because of the affair. They don’t have to agree on the principle reason why the defendant intentionally killed the victim, just that they intentionally killed the victim. Proving one grand unifying motive is a big deal in lawyer TV, but it’s not actually necessary to secure a conviction.

Trump’s acolytes will talk about “bias” and the idea that the jury only relied on Michael Cohen’s testimony (insufficient as a matter of law because he’s an accomplice) and — paradoxically given the last point — that the jury was swayed by prejudicial Stormy Daniels testimony, but these are all red herrings. The judge bias claim is facially weak sauce and impossible to tie to anything but harmless error in the case; Cohen’s testimony was backed up by a metric shit ton (tonne?) of testimonial and documentary evidence; and the Daniels testimony only got in because Trump’s lawyers decided to impugn her credibility in the opening and then not object when she testified. — it’s all a mess of frivolity.

There’s only one remotely colorable argument to overturn this conviction. They might be able to successfully argue that the theories for converting false records into Class E felonies were a bridge too far as a matter of law. While not a slam dunk by any means, this is an entirely reasonable and potentially successful argument and — importantly for Trump’s lawyers — it could get his conviction tossed.

But none of Trump’s legal auxiliary wants to talk about that because, politically, it doesn’t disturb the fact that Trump still falsified business records. REPEATEDLY. And that’s very much a crime!

Every good out for Trump rests on the notion that the crime should be a tier lower and, if successful, it’s the epitome of what “law and order” hardliners would consider “getting off on a technicality.” Lawyers can all make fairly sanctimonious speeches about how technicalities shouldn’t be sneered at and are actually part of serving the greater cause of justice…

But that doesn’t really help Trump’s political case.

And Trump understands the conflation of the legal and political cases. It’s why the defense screwed itself by calling Stormy Daniels a liar and opening the door wide for prosecutors to solicit ugly details of the encounter to rehabilitate her credibility. They should have admitted to the affair but, likely, the client wouldn’t let them do it because his political case requires categorical denial. The proper legal narrative is “sure he committed a ton of criminal financial acts, but the prosecution is too late to bust him for those,” but that’s not a story that Trump’s people want in the headlines.

He falsified business records. There’s no real argument he didn’t. All they can say is that it should’ve remained a misdemeanor which solves Trump’s legal problem because he would no longer have a felony conviction, but at the cost of conceding for the voting public that he did cheat on his business records.

So Scharf and Blanche are going to keep appearing on TV to spin conspiracy theories about Joe Biden commissioning the CIA to build a life-like Juan Merchan mask while filing every cockamamie theory of appeal Trump hears about on Truth Social. While behind-the-scenes they’re going to pursue the only appeal that might possibly succeed and hope against hope everyone’s so confused about which is which that no one notices the big political hole in the strategy.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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The case remains legally dodgy. While the jury answered all the necessary factual allegations in the affirmative, whether or not this is legally enough to support a conviction will get hashed out on appeal. Is hush money really an illegal campaign contribution when it could never have legally been a campaign expenditure? Did Stormy Daniels prejudice the jury by getting into the skeevy details of her encounter with Trump, warranting a mistrial? All questions that the New York court system will grapple with. But for now, Donald Trump is a convicted criminal.

And more importantly for his attorneys, he still has to keep paying them.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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It’s a tall order, and one that Trump has managed to violate ten times already. He also managed to get the gag order expanded after having to be told explicitly that attacking the judge’s daughter was not appropriate. Since being pointedly reminded that Judiciary Law § 751 presents the court with just two options for punishment — a fine of $1,000 and incarceration — Trump seems to have gotten religion and kept his mouth shut. But he’s still out there whining that the order violates the First Amendment and will be overturned imminently.

Toward that end, his lawyers filed an emergency appeal on April 8 in which he demanded a stay of the April 15 trial date, arguing that “The Unconstitutional features of the gag order are causing ongoing, irreparable harm to Petitioner and the voting public under the New York and U.S. Constitutions.” That didn’t happen, and now the First Judicial Department has dropkicked Trump’s appeal of the order.

Justice Merchan effectively bulletproofed his order by modeling it on the one crafted by the DC Circuit in Trump’s election interference case. He didn’t have to re-invent the wheel when a federal court had already concluded that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process.”

And neither did the appellate panel, which simply quoted from the per curiam ruling and noted that “This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.”

Of 30 entries on the appellate docket, only two are unsealed. But it seems pretty clear that Trump simply reiterated the arguments he made at the trial court, where he insisted that his First Amendment right as a political candidate outweighed the court’s need to protect the integrity of the proceeding and safety of parties to it.

Notably, petitioner does not argue that the Restraining Order has impinged upon his Sixth Amendment rights, or that he is unable to receive a fair trial because of the Restraining Order. Instead, he argues that the restriction of his statements relating to any real or perceived impropriety posed by [a line prosecutor’s] and [the judge’s daughter’s] actions and employment history restrict his ability to engage in protected political speech and may have some adverse impact on his campaign.

The appeals court failed to credit Trump’s math, although that hasn’t stopped Trump’s surrogates from saying the things he can’t. Here’s House Speaker Mike Johnson, who made the pilgrimage to New York to kiss the ring, whining about the unfairness of the ban on attacking the judge’s daughter.

Speaker Mike Johnson is outside Trump's trial offering a stream of lies pic.twitter.com/LpCpqturFI

— Aaron Rupar (@atrupar) May 14, 2024

Mike Johnson, an actual lawyer, purports to be outraged that the judge won’t allow politicians to hold press conferences inside the courthouse. Of course, Mike Johnson purports to be so wholly devoted to sexual purity that he allows his son to monitor his browsing with a no-fap app, and yet there he is, prostrating himself before a man accused of fornicating with a sex worker and paying for her silence, so … YMMV.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

A few months ago, Letitia James was trying a business fraud case against him.

Trump decided that it would be a good idea to antagonize the judge during that trial. Trump thus used social media to attack both the judge and his law clerk. At the time, I wrote that this was stupid. It was. When the judge issued his decision in the James case, we saw who wins — by about 350 million bucks — when a litigant picks a fight with a presiding judge.

Trump is about to start another trial, this time in a criminal case brought by Manhattan District Attorney Alvin Bragg. Judge Juan Merchan will be presiding over that case. And, in the words of Ronald Reagan during the 1980 presidential debate: “There you go again.” Trump is once again using social media to attack the judge and, this time, the judge’s daughter.

I’m sure that, this time, attacking the presiding judge will work like a charm.

Here’s the backstory: Trump paid hush money to Stormy Daniels on the eve of the 2016 presidential election to prevent her from revealing her one-night stand with him. Trump then altered the books of The Trump Organization to conceal the payment. So far as I can tell, Bragg has Trump dead to rights on these claims: Michael Cohen may not be a very credible witness, but every aspect of the story will be backed up by the written records of The Trump Organization.

You read it here first: Trump will be convicted of the business records offenses.

The alteration of business records is, however, only a misdemeanor. To convert that misdemeanor into a felony, the prosecutor must show that the business records were altered with the intent to conceal another crime. In the Trump case, Bragg alleges that Trump altered the business records to conceal payments that violated federal campaign and election law.

This is the part of the case that’s tricky. Although a New York prosecutor can use intent to conceal another New York crime to change a misdemeanor business records violation into a felony, it’s not clear that a New York prosecutor can use intent to conceal a federal election law crime for this purpose. That’s why pundits say that Bragg’s prosecution of Trump is a tough one.

For purposes of this column, here’s what matters: It will be entirely up to Merchan to decide whether the jury should consider if Trump committed any felonies. The question of whether a prosecutor can use federal election law to turn New York state misdemeanors into felonies is purely a matter of law. If Merchan (alone) decides that Bragg can rely on federal law in the New York prosecution, the judge will ask the jury to decide whether Trump altered business records to conceal a federal crime. If Merchan (alone) decides that Bragg cannot rely on federal law for this purpose, then the judge will not ask the jury to decide this issue, and Trump cannot be convicted of a felony.

It is thus very, very important to Trump that he remain in Merchan’s good graces during trial. In part, Trump’s fate is in the judge’s hands (alone).

So what does Trump do to stay in the judge’s good graces?

He attacks the judge and his daughter on social media.

When Merchan is thinking about the tough, and legally close, issue that he must decide, he’ll be aware that Trump attacked the judge personally, and the judge’s daughter, in public. Judges are able to control their tempers, of course, and there’s no reason to think that Merchan will be vindictive.

But if you were the judge, and it cost you nothing to punish the jerk who attacked you and your family on social media, how would you rule? Would you let the jury decide whether to convict Trump of a felony, or would you throw out the felony counts?

I’m just askin’.

On appeal, Trump will probably assert that Merchan was biased against him. The prosecutors will explain that Merchan exhibited no bias, and he called balls and strikes precisely as he saw them. If the law were not so rigid, the law might recognize that Merchan had every right to be biased against Trump; Trump had, after all, attacked the judge and his family.

Trump asked for it.

We’ll see how Trump’s tactics work out for him during this trial.

But judging by past experience, attacking a judge while your case is under submission is not a good idea.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

Since Trump is a very divisive topic, I should add disclaimers. First, I have no direct knowledge of any of these cases other than what is publicly available. There may be nonpublic facts that could change the outcome of the analysis. Second, I have no opinion on the merits of any of these lawsuits, and my conclusions do not imply a position one way or another.

General Rules On The Deductibility of Legal Fees

Whether legal fees are deductible generally depends on the nature of the matter. Legal fees connected to business activities are deductible as a business expense. If the fees are connected to the acquisition of capital assets or real estate, the legal fees are not fully deductible but must be depreciated over a number of years. If the legal fees are personal in nature, such as personal injury or divorce, the legal fees are not deductible. But there are exceptions to these rules so it may be best to consult a tax professional before forking over the large retainer.

But what if the legal fees are connected to personal and business issues? To address this, courts use the “origin of the claim” test to determine deductibility. As the name suggests, the courts look at the origin and character of the claim that necessitated the payment of legal fees. This test does not care about the outcome of the dispute. For example, legal fees paid for divorce are not deductible even though the proceedings may involve splitting of jointly owned business assets or division of business income between the soon to be exes.

Lastly, a person must actually pay the legal fees to be deductible. While this sounds obvious, in Trumps’s case, the Republican National Committee has paid a significant portion of his legal fees. So Trump cannot claim the deduction if the RNC paid it.

New York Civil Fraud Lawsuit

Attorney General of New York Letitia James sued Trump and the Trump Organization alleging that they engaged in financial fraud. Specifically, Trump and his business inflated the value of his properties to obtain loans at lower interest rates and other financial benefits. After the trial, the judge ordered Trump to pay $355 million plus interest calling it a disgorgement of profits.

In this case, Trump’s attorney’s fees are deductible as ordinary and necessary business expenses. The attorney’s fees are related to defending Trump’s business activities.

Election Interference And Classified Information

Currently, there are two lawsuits that accuse Trump of interfering with a presidential election. The first is at the federal level where Trump is accused of inciting riots on January 6, 2021, with the goal of preventing the certification of the 2020 election results. It also accuses then President Trump of enlisting fake electors, and pressuring Vice President Mike Pence and members of Congress to not certify the results of the 2020 election.

The second lawsuit comes from the state of Georgia where Trump is accused of pressuring Georgia’s secretary of state to overturn the election results.

Another federal lawsuit accuses Trump of willfully retaining classified documents, obstructing justice, and making false statements.

These lawsuits are related to Trump’s conduct while he was president and running for re-election. The president is a government employee and not a business owner or independent contractor. Therefore, his attorneys’ fees are considered employment-related expenses which used to be an itemized deduction. However, the Tax Cuts and Jobs Act (TCJA) disallowed the employment-related expense deductions from 2018 to 2025.

Even if the pre-TCJA tax laws were to apply, Trump’s supposedly huge income would have subjected him to the alternative minimum tax (AMT) which adds back most itemized deductions to taxable income. Indeed, when Trump’s tax returns were leaked, it showed that a sizable portion of taxes paid were due to the AMT.

Defamation Lawsuits

E. Jean Carroll sued Trump twice for defamation. In the first lawsuit filed while Trump was president, Carroll claims that she was defamed when Trump made a statement denying her sexual assault claims and accusing her of trying to publicize her book.

In the second lawsuit filed after Trump’s presidency ended, Carroll claims she was defamed due to Trump’s statements on Truth Social in addition to battery.

Trump lost both cases at the trial level. The jury awarded Carroll $5 million on the first lawsuit and $83.3 million on the second. Trump is appealing both decisions.

In the first lawsuit, Trump had no attorney fees because he was represented by Department of Justice lawyers while he was president.

The second defamation lawsuit is a little trickier because Trump may argue that protecting his reputation against a defamation allegation is connected to the production of income both as a businessman and as the Republican nominee for president.

But because the defamation lawsuit originates from claims of sexual assault, Trump’s legal fees to defend the defamation lawsuit is not likely to be tax deductible.

Hush Money Lawsuit

In 2023, Trump was indicted in New York for paying hush money to adult actresses Stormy Daniels and Karen McDougal to prevent them from publicizing their past extramarital affairs with him. Trump is accused of falsifying business records in order to cover up the payments.

It may be argued that since the indictments involve falsifying business records, the lawsuit is business related and so the legal fees are tax deductible. But on the other hand, these payments were made in connection with personal activities that had no connection to Trump’s businesses. Since the origin of this indictment involve Trump’s personal activities, the legal fees are not likely to be tax deductible.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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Trump is accused of hiding the hush money payment to Stormy Daniels in 2016 in a series of invoices and checks to Michael Cohen for legal work that never happened. Naturally, he’d like to exclude testimony from Cohen and Daniels, as well as from Karen McDougal, another woman who was paid during the campaign to keep quiet about her affair with Trump.

Other items on Trump’s exclusion wish list include:

• Anything related to the National Enquirer’s “catch and kill” policy for stories damaging to Trump;
• The "Access Hollywood" tape;
• Michael Cohen’s guilty plea for violating campaign finance law by making an excess in-kind contribution with the Daniels payoff;
• The existence of campaign finance law generally;
• The fact that Trump controls his eponymous business and his revocable trust;
• Allen Weisselberg’s handwritten notes about the payoff;
• Trump’s tweets and public statements.

Hold on to your hats, kids, but … DENIED.

The court also dropkicked Trump’s motion to advance his defense of advice-of-counsel-but-also-not. Essentially, Trump hoped to avoid the unpleasantness of a privilege waiver by claiming that there were lawyers involved in this deal, and so he just assumed it was kosher.

Survey says … WOMP WOMP:

Turning to the amorphous defense of “presence of counsel,” Defendant has in the past hinted, implied, and now declared that he will rely on said defense. However, Defendant has never asked this Court whether he would be permitted to do so. This Court now rules that Defendant may not offer, or even suggest, the defense of “presence-of-counsel.” To allow said defense in this matter would effectively permit Defendant to invoke the very defense he has declared he will not rely upon, without the concomitant obligations that come with it. The result would undoubtedly be to confuse and mislead the jury. This Court can not endorse such a tactic.

And while we’re on the subject of NOPE:

Further, Defendant is precluded from (1) arguing that the Indictment is novel, unusual, or unprecedented, (2) making argument about pre-indictment delay, (3) making arguments and introducing evidence regarding the purported motivations or personal and professional backgrounds of the District Attorney or counsel for the People in this case, (4) making arguments and introducing evidence regarding any potential punishment or other consequences to the Defendant as a result of these proceedings, (5) making argument or introducing evidence regarding the alleged bias of the court and court staff, and (6) arguing or introducing evidence regarding Pomerant’s purported views on the instant prosecution as expressed in his book. ‘These issues are not relevant and will only serve to confuse or mislead the jury. Indeed, many of these issues were already decided in this Court’s February 15, 2024, Omnibus Decision.

The court still hasn’t ruled on Trump’s motion to dismiss the case on immunity grounds, since he was doing very serious president stuff when he reimbursed Cohen. And next week, Justice Merchan will hear arguments on Trump’s motion to dismiss because the feds turned over discovery late and blew up the trial date, which he argues is somehow the fault of the Manhattan DA.

But from yesterday’s rulings, it certainly doesn’t sound like Justice Merchan thinks this case is off the calendar permanently.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

Forced to disclose whether he intends to blame his lawyers for covering up a hush money payoff to pornstar Stormy Daniels through a series of checks to Michael Cohen denominated as legal fees, Trump punted.

“President Donald J. Trump respectfully submits notice concerning his intent to rely on the defense of advice-of-counsel at trial,” his lawyers wrote, hastily adding that “there is a marked difference between the commonly referred to ‘advice-of-counsel’ defense and the defense that President Trump expects to raise at trial.”

Their theory seems to be that Trump doesn’t have to waive attorney-client privilege as he normally would if he were planning to blame his lawyers for leading him down the garden path. Instead he will prove that he “lacked the requisite intent to commit the conduct charged in the Indictment because of his awareness that various lawyers were involved in the underlying conduct giving rise to the charges.” This seems to amount to Trump claiming that no attorney explicitly said it was legal, but since lawyers prepared the documents, he assumed the deal was kosher.

It’s more of a “lawyer-in-the-room” defense, really.

The plan appears to be to get Michael Cohen to testify as to Trump’s subjective understanding of the reimbursement plot. His current counsel argues that Trump only agreed to disguise the $130,000 Daniels payout as legal fees because of “the presence, involvement and advice of lawyers in relevant events giving rise to the charges in the Indictment.”

Leave aside for the moment that Cohen just got through testifying in the civil fraud trial that Trump talks like a gangster, making his lackeys do the dirty work through code words understood by everyone in his orbit. And, yes, Trump just argued that Cohen is a perjurer and all that testimony should be disregarded in its entirety. But never mind that now, because Cohen is totally going to save Trump’s bacon!

And, no, Trump will not be taking questions because “there is no basis for the People to demand a preview of our defenses at trial”

To a casual observer this might seem like having his cake and eating it, too. Trump is demanding to blame his lawyers for his crimes, without actually saying whether they told him the scheme was legal. It is, as they say, a bold strategy, Cotton.

Let’s see whether it pays off with Justice Juan Merchan.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

Last night, his lawyers appealed Justice Arthur Engoron’s grant of partial summary judgment last week, in which the court found that Trump and his company engaged in persistent fraud. Unsurprisingly, the Trump family would like the appeals court to overturn the ruling that puts all their assets in receivership and dissolves their license to do business.

For his part, Justice Engoron would like the defendants not to move assets out of the jurisdiction — a very real possibility from parties who incorporated a Delaware LLC called Trump Organization II the same day the instant action was filed. This morning the court ordered the defendants to tell retired Judge Barbara Jones, special monitor to the stars, about: the planned transfer of assets in any jurisdiction; the creation of any new business entity to hold Trump’s assets; and all communications with lenders, insurance companies, or business partners regarding those assets.

In the courtroom, things were little better. After two days in which Trump’s lawyers berated his former accountants on the witness stand in a vain attempt to make them take the blame for the bad information their client fed them, the former Trump Org executive Jeff McConney conceded on the witness stand that Trump himself had final approval on the numbers submitted to the accountants, who used the data to compile his financial statements.

He may have said "correct." Amer's going pretty fast now.

The idea here is that Mazars was clearly not auditing Trump Org's numbers.

If the numbers are juiced, it's Trump's fault.

— Jose Pagliery (@Jose_Pagliery) October 5, 2023

And then this morning Trump moved for dismissal of the criminal indictment charging him with making false business records to cover up the 2016 hush money payment to adult film star Stormy Daniels. According to reports from CNN and ABC, the argument appears to be twofold.

First, Trump claims that he “cannot be said to have falsified business records of the Trump Organization by paying his personal attorney using his personal bank accounts.” The theory here seems to be that Trump used his personal checking account and the account for his revocable trust to make payments denominated as “retainers,” but the checks didn’t come from the Trump Organization, so they are not false business records.

The statement of facts accompanying the indictment tells a slightly different story:

Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records, kept and maintained by the Trump Organization, were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017. The Defendant caused his entities’ business records to be falsified to disguise his and others’ criminal conduct.

Trump’s other argument in favor of dismissal is that it violates due process to try him in the middle of an electoral campaign.

“The indictment was filed six years after the conduct at issue, more than four-and-a-half years after DANY began to investigate it, and more than three years after DANY started presenting evidence to a grand jury,” he claims, adding, “The delay has prejudiced President Trump, interfered with his ongoing presidential campaign, and violated his due process rights.”

The petition goes before Justice Juan Merchan, who has thus far been unimpressed with Trump’s imprecations.

Meanwhile on Truth Social:

The ridiculous A.G. case against me in New York, brought by the Racist and Incompetent Peekaboo James, is being studied and mocked all over the World. Companies are Fleeing! It, and the highly political, Trump Hating Judge, are DESTROYING the Image and Reputation of the New York State Legal System & Courts. I don’t even get a Jury! All of this while MURDERS & VIOLENT CRIME HIT UNIMAGINABLE RECORDS! This is sooo bad for New York. HELP! The respected Commercial Division, where it should have been sent in the first place, must take over this “sh.. show.”

Trump urges New York judge to dismiss hush money charges [CNN]
Trump seeks dismissal of charges in Stormy Daniels hush money case [ABC]

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

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

So far we’ve got the New York case against him over financial crimes related to the Stormy Daniels hush money, he’s got a federal indictment over his handling of classified documents, there’s the federal case over that whole January 6th insurrection thing. Now, Georgia has added to the legal problems, leaving the former president facing 91 felony counts in four jurisdictions (if you’re counting).

But all these separate — but still felonious — actions are likely to take their toll. Bryan Cave partner and former federal prosecutor Renato Mariotti appeared on CNN to explain that “one thing that people really underestimate” is “how hard it is to defend a multi-front war in criminal defense.”

Because while each of the prosecution teams in the four separate cases against Trump “can focus like a laser on what they need to do to get a conviction,” the defense team has a series of “competing concerns.” Mariotti notes “I have done it, myself personally. It is very, very challenging to represent a client that is facing criminal indictment on multiple fronts.”

Check out the full appearance below.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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Liz Dye posted an interesting analysis of Trump’s new lawsuit here at Above the Law.

But I had a couple of different thoughts.

First, as you would think Trump (or his lawyers) know by now, when a person files a lawsuit, the defendant has the right to depose the plaintiff. In his new lawsuit, Trump complains (in the Fifth Cause of Action, for conversion) that Cohen acted wrongfully in connection with the payment to Stormy Daniels.

What’s going to happen when Cohen’s lawyers get the right to ask Trump about the Daniels payment during a deposition? Either Trump answers the questions — and likely incriminates himself in the Manhattan DA’s pending criminal case — or Trump refuses to answer the questions by asserting the Fifth Amendment right to avoid self-incrimination. Cohen can then tell the jury (in the civil case between Trump and Cohen) that invoking the Fifth Amendment implies that Trump’s answers to the questions, if he’d given them, would have hurt his case. Either way, Trump loses.

Thus: The new Trump lawsuit will either be dismissed by a court before it gets to the stage of taking depositions, be dismissed voluntarily by Trump himself before the lawsuit gets to the stage of taking depositions, or result in a complete disaster for Trump when his deposition is taken.

This is really “Lawsuits 101,” which you’d think Trump would have learned by now: Do not file a lawsuit when you cannot endure the resulting discovery.

Here’s my second thought about the new lawsuit: If you were working for the Manhattan DA’s office, and you were wondering how Trump’s lawyers would cross-examine Cohen during the upcoming criminal trial, you’d read the complaint in the new lawsuit. Trump’s lawyers have plainly been thinking about the many ways they’ll be able to discredit Cohen on the witness stand. And now we know just what Trump’s lawyers are thinking: They’ve laid out in the complaint all the stuff that they’ll use against Cohen on cross-examination. (The New York criminal trial won’t occur until a year or more from now, and things will evolve by then. But if you wanted to know the state of Trump’s current thinking, the lawsuit gives it to you.)

Lastly, on the merits of the new Trump lawsuit: I’m a lawyer. I understand my professional obligations. And I say almost nothing about things that I learn about my clients’ legal affairs. I learned that information in confidence; those conversations are privileged; it would violate my ethical obligations if I revealed them.

So what did Cohen do when he got crosswise with Trump? Delighted by his new-found fame, he wrote a couple of books, and launched a series of podcasts, and became a ubiquitous talking head on television to blab about damn near everything he did while acting as Trump’s lawyer. I haven’t looked at everything that Cohen said in his books, and podcasts, and so on, and I have no idea whether Cohen actually said anything that violated his fiduciary duties to Trump. But in the many words that he’s spoken on many subjects over time, he certainly may have discussed topics that were off-limits. If so, then Trump’s gripes would have some merit. (It’s true that Cohen was disbarred several years ago, but your duty to maintain client confidences doesn’t disappear just because you lose your license. It’s also true that Cohen had a right to defend himself when he was being pursued criminally by prosecutors. But Cohen has spoken an awful lot of words, on an awful lot of Trump-related subjects, that might easily go beyond the thing for which he was sent to jail.)

In the end, both of these blabbermouths — Trump and Cohen — talk way too much for their own good. Cohen will be a witness in the trial against Trump. Every word that Cohen speaks is possible fodder for cross-examination during that trial. I’m sure the New York prosecutors have asked Cohen to restrain himself. But Cohen can’t help himself.

And Trump is on the receiving end of at least one criminal case and multiple civil cases. The best thing he could do in his legal defense would be to stop talking. He can’t help himself either.

Words, words, words. Both Trump and Cohen will ultimately eat them. You saw it here first.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

The New York Times notes that it is unclear when the grand jury voted to charge Trump. The paperwork for an indictment was reportedly filed mere “minutes” before the office closed for the day at the courthouse.

[This is] a historic development that will shake up the 2024 presidential race and forever mark him as the nation’s first former president to face criminal charges.

An indictment will likely be announced in the coming days. By then, prosecutors working for the district attorney, Alvin L. Bragg, will have asked Mr. Trump to surrender and to face arraignment on charges that remain unknown for now.

Trump is currently at Mar-a-Lago, where his aides were “caught off guard” by news of the grand jury’s vote. To our knowledge, he has not yet released a statement of any kind regarding the criminal turn his life just took.

UPDATE: Trump released the statement below on Truth Social, lamenting the fact that he was “INDICATED.”

UPDATE: Trump released a second statement on Truth Social, this time on his official letterhead (click to enlarge).

Michael Cohen, Trump’s former lawyer and fixer, is said to have provided key testimony to the grand jury on the Daniels case. He released this statement:

For the first time in our Country’s history, a President (current or former) of the United States has been indicted. I take no pride in issuing this statement and wish to also remind everyone of the presumption of innocence; as provided by the due process clause. However, I do take solace in validating the adage that no one is above the law; not even a former President. Today’s indictment is not the end of this chapter; but rather, just the beginning. Now that the charges have been filed, it is better for the case to let the indictment speak for itself. The two things I wish to say at this time is that accountability matters and I stand by my testimony and the evidence I have provided to DANY.

As a reminder, this is not the only criminal matter in which Trump is currently involved. A federal investigation is underway by special counsel in Washington, and a grand jury is investigating him in Georgia.

Grand Jury Votes to Indict Donald Trump in New York [NYT]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

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On Monday, the chairs of the House Judiciary, Oversight, and Administration Committees sent the New York prosecutor a letter demanding that he account for himself.

“You are reportedly about to engage in an unprecedented abuse of prosecutorial authority,” they inveighed, demanding that Bragg “testify about what plainly appears to be a politically motivated prosecutorial decision.” Then they quoted a “legal scholar” accusing the New York DA of “attempting to ‘shoehorn[]’ the same case with identical facts into a new prosecution, resurrecting a so-called ‘zombie’ case against President Trump.” And if you’re guessing that this “scholar” is one Jonathan Turley, then you are correct, of course.

“The legal theory underlying your reported prosecution appears to be tenuous and untested,” write the politicians, despite having zero visibility on the inner workings of the grand jury. They end with a token effort to connect the prosecutorial decisions of a local elected official to Congress’s oversight role of the executive branch

“Congressional scrutiny about how public safety funds appropriated by Congress are implemented by local law-enforcement agencies” entitles them to subpoena every piece of paper in the DA’s office with the word “Trump” on it, they harrumph.

Because local control is a core GOP value, except when local officials do stuff Republicans don’t like.

DA Bragg pulled no punches in his response. A letter from the desk of his general counsel Leslie Dubeck chided the politicians for “an unprecedented inquiry into a pending local prosecution,” and noted that the apparent impetus for their demands was Trump’s false prediction that he would be arrested Tuesday and urging by his lawyer Joseph Tacopina that congressional Republicans do … something.

The DA rebuked the committee chairs for intruding on “quintessential police powers belonging to the State” and attempting “an unlawful incursion into New York’s sovereignty.” The letter cites decades of Supreme Court cases holding that the federal legislative branch really does not get to interfere in local prosecutorial decisions. See also: Tenth Amendment.

“While the DA’s Office will not allow a Congressional investigation to impede the exercise of New York’s sovereign police power, this Office will always treat a fellow government entity with due respect,” the letter concludes, offering to meet with the legislators to figure out exactly what legitimate legislative purpose they are advancing by harassing local law enforcement officials.

Over in the Senate, the response was marginally more measured. When asked by Axios about his Republican House colleagues’ demands of Bragg, Senator John Cornyn sighed that he would “personally prefer to see them work on the agenda they ran on and that got them the majority.”

“I think you’ve got to fall short of getting involved in the legal process,” said Senator Thom Tillis agreed.

But the usual suspects were up to their regularly scheduled murder of irony.

A Trump indictment would be a disgusting abuse of power. The DA should be put in jail.

— Rand Paul (@RandPaul) March 21, 2023

Meanwhile Trump himself is over on Truth Social calling Bragg, who is Black, an “animal” being controlled by Jewish philanthropist George Soros. He also reposted a graphic which depicts him appearing to swing a baseball bat at Bragg’s head.

“EVERYBODY KNOWS I’M 100% INNOCENT, INCLUDING BRAGG, BUT HE DOESN’T CARE. HE IS JUST CARRYING OUT THE PLANS OF THE RADICAL LEFT LUNATICS. OUR COUNTRY IS BEING DESTROYED, AS THEY TELL US TO BE PEACEFUL!” he screeched into the ether this morning.

Luckily Trump’s supporters would never take his calls for violence seriously … oh, wait.

Senate Republicans cool on House plans to question Manhattan DA [Axios]

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

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Donald Trump’s newest lawyer, who represents him in the E. Jean Carroll defamation case, as well as the supposedly imminent indictment for the Stormy Daniels hush money payment, can’t stop, won’t stop flapping his yap on TV about Trump’s case.

“I believe this will catapult him into the White House,” he vamped to NBC’s Ari Melber last Tuesday.

Tacopina, a defense lawyer with a heretofore good reputation, has spent the past two weeks making increasingly manic appearances to insist that his client wasn’t lying when he falsely claimed not to know about the 2016 hush money payout to keep Daniels quiet about a sexual encounter with the presidential candidate.

“Here’s why it’s not a lie,” he told Melber. “Because it was a confidential settlement. So if he acknowledged that, he would be violating the confidential settlement. So, is it the truth? Of course it’s not the truth. Was he supposed to tell the truth? He would be in violation of the agreement if he told the truth. So by him doing that, he was abiding by, not only his rights, but Stormy Daniels’s rights.”

On Friday, it emerged that Tacopina had met with Daniels in 2018 about that very agreement, and he admitted to CNN’s Don Lemon that he had an attorney-client relationship with her. This put rather a different spin on his claim Monday to ABC’s George Stephanopoulos that Daniels was an extortionist.

And now yet another tape has surfaced with the lawyer trashing the very claims he’s now making on Trump’s behalf.

2018 pic.twitter.com/qdJJmRjJpU

— Acyn (@Acyn) March 21, 2023

“If there’s an issue with that payment to Stormy Daniels being that it was made on behalf of the candidate, okay, and it was not declared, that’s fair game,” he told Don Lemon back in 2018.

Last week, Tacopina was calling Michael Cohen, the president’s former lawyer who pleaded guilty to a campaign finance violation for his role in the scheme, a liar. But five years ago, he had a different take:

Quite frankly, Michael Cohen, again, has made statements that would give rise to suspicion for any prosecutor to say ‘That doesn’t make sense, that a lawyer took out a home equity loan with his own money, paid somebody that he didn’t even know, on behalf of a client who, by the way, had the wherewithal and the money to afford $130,000. And by the way, didn’t tell the client about the settlement agreement.’ It’s an illegal agreement, it’s fraud, if that’s in fact the case.

It’s kind of a bad fact to have said on air that your client’s legal position “doesn’t pass the straight face test, and quite frankly, if that is what happened, we have potential campaign finance issues.” As is Tacopina’s promise of “all out war” if Trump is indicted.

He made the prediction in an interview with Kimberly Guilfoyle, Donald Trump Jr.’s fiancée, whom he represented before the January 6 Committee. You’d think that these two would have better judgment than to threaten violence if the former president doesn’t get what he wants.

But then again … maybe not.

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

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The once-respected legal mind of Alan Dershowitz went on the Charlie Kirk YouTube show yesterday comparing the Manhattan District Attorney’s office to the KGB, claiming a potential arrest is a violation of “core American values,” that is “actually a violation of the Bible”:

ALAN DERSHOWITZ (GUEST): Without a doubt. There was the South American dictator who said, for my friends, everything, for my enemies, the law. You can use the law to get anybody as Justice Jackson said. Or as the KGB head said, show me the man and I’ll find you the crime. This is the worst example in my 60 years of practicing criminal law, of targeting somebody for prosecution and then rummaging through the books, giving people immunity and trying to concoct a crime that doesn’t exist. And if this is allowed to succeed, none of our liberties is safe. You know, today it’s a Republican who’s a target, tomorrow it’s a Democrat. And the day after tomorrow, it’s your Uncle Charlie or your nephew or your niece. There’d be no limits on what prosecutors can do to their political enemies. They’re going to do it to people who are running against them for DA next. And it’s just such a violation, not only a violation of American law and civil liberties, it’s actually a violation of the Bible. The Bible instructs judges two things: don’t take bribes, that’s obvious. But the number one thing is don’t recognize faces. And that’s —

KIRK: That’s exactly right. Yes, yes. Do not favor anyone in a court. Yes, that’s exactly right. Yes. Continue. Sorry.

DERSHOWITZ: No, that’s — and that’s why it violates every core of American values. So, I — this is one of the worst prosecutions I have ever seen. Believe me, I’ve seen some bad prosecutions, some good ones. I’ve seen guilty people acquitted and innocent people convicted. But I’ve never quite seen a prosecution like this, where you had to staple together two unrelated statutes, one federal, one state, violate the statute of limitations, violate the rule of law, and concoct a crime.

Sigh. It seems Dershowitz has his often-discussed underwear in a knot over the whole matter. And while it’s entertaining to ponder what charges Manhattan DA Alvin Bragg may be cooking up for the former president (Asha Rangappa’s chart on this is excellent, btw), we are still stuck in a waiting game.

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The indictment will be sealed, so the public won’t know its contents until either Trump is arraigned or someone leaks information.Then, all hell will break loose.Trump’s started chiseling around the corners of hell already, asking on social media that his supporters “protest” on his behalf. If Trump were asking for peaceful protests, that would be fine. But January 6 should make any sentient person question if that’s what he’s doing. Now Trump’s expected to hold a rally in Waco, Texas, on March 25, a time that marks the 30th anniversary of the siege at the Branch Davidian compound.That’s just the start. What will Trump say in Waco? What will he say at the rallies after that? What will his social media posts advocate after it sinks in that he’s facing jail time?Folks who used to work in the Manhattan DA’s office claim to be calm: The Manhattan DA has handled high-profile cases before. All of the people involved are professionals. The security personnel know how to handle these things. We routinely handle gang-murder cases. Don’t worry.Nonsense.This case is different.You heard it here a year and a half ago, and I’m saying it again today: There will be blood.Maybe the Manhattan DA’s office has handled gang-murder cases before. I wouldn’t know. I never heard the names of the gang members, or the murderers, or the victims, or the witnesses, or the judges in those cases.Isn’t the Trump situation a little different?I know the name Trump. And Michael Cohen. And Stormy Daniels. And Allen Weisselberg (the Trump Organization’s CFO). And I could learn in a heartbeat all the other players and witnesses. The Manhattan DA himself, Alvin Bragg, has been speaking about this publicly, and Trump has been dragging Bragg’s name through the mud.We’ll soon know the names of the prosecutors, and the name of the judge. We’ll know the names of the investigators. We’ll know the dates and times of hearings.Who are the police and FBI going to protect? The judge, around the clock, for months? The prosecutors, around the clock, for months? Michael Cohen, and the other key witnesses, around the clock, for months? The grand jurors, if their names leak? The petit jurors, when the time comes, and if their names leak?Moreover, when the FBI searched Mar-a-Lago, someone attacked an FBI office in Cincinnati, which had nothing to do with the raid but simply housed part of the FBI. Who knows what attacks in unexpected places will be triggered by calls for “protests”?And this is a case that will last for months, at a minimum, in the pretrial stages, as Trump raises statute of limitation issues, and challenges to legal theories, and the rest. The filing of every brief, and the ruling on every motion, will be covered by MSNBC and Fox. Trump will either rage or appeal, or both, depending on the available options.Trump will repeatedly be telling his supporters that the prosecutors are coming after him first and his supporters next. We know that some fraction of those supporters can be motivated to violence, as January 6 demonstrated.There will be blood.This raises two related questions:First, should America be intimidated?You may or may not think that this indictment is a good idea. Maybe a former president shouldn’t be prosecuted for allegedly cooking his company’s books and committing campaign finance violations. Maybe it’s a dangerous precedent to let one of hundreds of elected state prosecutors decide whether to pursue a prominent person in an opposing political party. Maybe there are other, more important crimes to prosecute in New York.But once a prosecutor announces a case, should the former president’s likely attempts to incite violence cause the country to lose its nerve? Or should we stand firm once the indictment is announced and Trump intensifies his campaign of intimidation?Second, what the heck is about to happen to the Republican Party? All the pundits seem to think that the indictment will help Trump politically, even if it hurts him personally. Maybe so. But what about people other than Trump? I assume those who have been standing by Trump to date will hold the line, saying that the indictment is a politically motivated witch hunt. But Trump’s case may reach trial before the election; Trump may well be convicted; it’s hard to see a convicted felon winning a race for the presidency.What will Republicans do then?Will enough of the Republican Party abandon Trump to permit the emergence of a new conservative party, dedicated to principles instead of a person?Maybe some good will ultimately come from this.But first, there will be blood.Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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As Just Security editor Ryan Goodman points out, Tacopina appears to have consulted with Daniels back in 2018 before she hired Michael Avenatti.

Goodman, a professor at NYU Law, notes that the conversation about the hush money payment created an attorney-client relationship under both ABA rules and New York’s Rules of Professional Conduct. Indeed, Tacopina admitted this to CNN’s Don Lemon five years ago, saying, “I can’t really talk about my impressions or any conversations we had because there is an attorney- client privilege that attaches even to a consultation.”

And so his on-air antics this week, not to say his representation of Trump in a matter arising out of that payment to Daniels, seem even weirder. On Monday, Tacopina went on ABC’s Good Morning America and accused Daniels of extorting his client.

“This was a plain extortion, and I don’t know since when we’ve decided to start prosecuting extortion victims?” the lawyer huffed to George Stephanopoulos. “He’s vehemently denied this affair, but he had to pay the money because there was going to be an allegation that was going to be publicly embarrassing to him regardless of the campaign.”

On Tuesday, he was practically manic with NBC’s Ari Melber, grabbing the papers out of the host’s hand and insisting that when Trump falsely claimed not to know about the hush money agreement, he wasn’t actually lying. He was actually protecting Daniels, the extortionist.

Here’s why it’s not a lie. Because it was a confidential settlement. So if he acknowledged that, he would be violating the confidential settlement. So, is it the truth? Of course it’s not the truth. Was he supposed to tell the truth? He would be in violation of the agreement if he told the truth. So by him doing that, he was abiding by, not only his rights, but Stormy Daniels’s rights.

This isn’t even the first time Tacopina has gotten caught making statements rubbishing Trump’s claims. On CNBC in 2020, he mocked Trump’s claim that he was acting in his official capacity when he denied E. Jean Carroll’s rape allegations and accused her of participating in a Democratic hoax.

“Calling an alleged victim of rape … a liar is not an act in his official capacity,” he scoffed, adding later, “Although ad hominem attacks on members of the regular public may be a regular occurrence in the Oval Office these days, Article II of the Constitution does not include within the functions of the presidency the role of Chief Mudslinger.”

Tacopina now represents Trump in the related case filed in 2022 under New York’s newly enacted Adult Survivors Act. That suit also claims defamation because Trump repeated his original statement about Carroll, more or less verbatim, in October of 2022, long after he left office. Both cases are set to go to trial next month.

Meanwhile, Daniels is reported to have testified to Bragg’s grand jury yesterday, and Trump himself rejected an offer to come in and testify without immunity — i.e., incriminate himself and/or commit perjury.

If indeed an indictment of Trump is imminent, it’s possible Bragg could move to disqualify Tacopina based on the prior attorney-client relationship with Daniels.

Bragg must prove: "(1) the existence of a prior attorney-client relationship [check], (2) that the matters involved in both representations are substantially related [check], and (3) that the interests of the present client and former client are materially adverse." Checkmate. /3

— Opening Arguments (@openargs) March 17, 2023

On the other hand, Tacopina seems inclined to go on television and rant about his client’s legal strategy at length, so perhaps he’s worth keeping around.

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

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“This case is outrageous. There should be a healthy dose of disgust from the bar, the legal community, prosecutors, defense lawyers alike,” he fumed to NBC’s George Stephanopoulos on Good Morning America. “We are distorting laws to try and bag President Trump. I don’t know if it’s because he’s leading in all the polls. I don’t know what it is, but clearly this prosecutor and this prosecutor’s office has made an agenda of trying to get him.”

FIRST ON GMA: Former Pres. Trump's lawyer Joe Tacopina speaks about Trump's invitation to testify before grand jury.

@GStephanopoulos pic.twitter.com/We1Ku2LFAp

— Good Morning America (@GMA) March 13, 2023

And perhaps he’s correct, although Bragg has taken significant flack for not charging Trump in conjunction with the fraudulent financial statements that form the basis of the civil complaint filed by New York Attorney General Letitia James.

But Tacopina went on to make a series of bizarre claims about the potential case against his client, which is reported to consist of a misdemeanor charge of falsifying a business record plus another charge to be named later, which would add up to a felony. Various observers have speculated that the “plus up” charge might involve conspiracy to violate election law, New York state campaign finance laws, or even the federal campaign violation Trump’s former lawyer Michael Cohen pled guilty to back in 2017.

New York has a five-year statute of limitations for most felonies, which would appear to mean Trump’s 2016 conduct is time-barred, but Tacopina didn’t want to talk about that. Instead he made the facially nonsensical claim that Daniels was seeking to extort Trump in 2016.

“This was a plain extortion, and I don’t know since when we’ve decided to start prosecuting extortion victims?” the lawyer blustered. “He’s vehemently denied this affair, but he had to pay the money because there was going to be an allegation that was going to be publicly embarrassing to him regardless of the campaign.”

Here on Planet Earth, Daniels had been trying to sell her story for months by the time Michael Cohen got to her. She approached the National Enquirer, where publisher David Pecker and editor Dylan Howard were engaged in a plot to “catch and kill” stories about Trump which might be damaging to his campaign. Both testified about the scheme to then Special Counsel Robert Mueller, as did Cohen, who pled guilty to making an illegal, excessive campaign contribution. That’s clearly not extortion, but Tacopina wasn’t done.

TACOPINA: There was absolutely no false records made. To my knowledge, there was no false records made.”

STEPHANOPOULOS: So you’re not sure?

TACOPINA: Well, I wasn’t there at the time, but my understanding of these facts is clearly there was no false record made.

STEPHANOPOULOS: But you would acknowledge if a false record is made, that is a crime, a misdemeanor? Correct?”

TACOPINA: No, I wouldn’t acknowledge that! Any false record made, in a private banking record—

STEPHANOPOULOS: But if it were made, it is a crime. It’s a misdemeanor.

TACOPINA: It depends in what context. I could record something in my personal checkbook that says that I bought something for personal use or whatever. As long as there’s no tax ramifications or campaign ramifications, it’s not a crime. Whatever I do in a personal setting is different.

This, too, is a bizarre statement about easily disprovable facts. Trump didn’t use “personal” funds. He used money from the Trump Organization — that’s why we’re talking about falsifying a business record. And he disguised the reimbursement for the $130,000 Cohen fronted to buy Daniels’s silence about their sexual encounter as a legal retainer, which Rudy Giuliani admitted on air to Sean Hannity in 2018 after promising the Fox host “I’m giving you a fact now that you don’t know.”

GIULIANI: When I heard of Cohen’s retainer for $130,000, he was doing no work for the president. I said, “Well, that’s how he’s repaying it, with a little profit and a little margin for paying taxes for Michael.

HANNITY: But you know the president didn’t know about this?

GIULIANI: Ah, he didn’t know about the specifics of it, as far as I know. But he did know about the general arrangement, that Michael would take care of things like this. Like, I take care of this with my clients. I don’t burden them with every single thing that comes along. These are busy people.

Giuliani gabbled on about how Trump had “funneled it through a law firm” and insisted that this was “a very regular thing for lawyers to do.” And five minutes later Greenberg Traurig showed him the door. But you don’t have to rely on Rudy — and really, you should not! — because Trump signed at least one of the $35,000 reimbursement checks used to make Cohen whole, which certainly makes it look like he was aware of the payments.

Tacopina spent a lot of time abusing Cohen and insisting that Trump never had the encounter with Daniels, but had to pay her off, irrespective of the campaign, to prevent disclosure of a story which was “false, but embarrassing to himself, his family, his young son.”

Meanwhile, Trump seems to have admitted the whole thing weeks ago — although he’s back to denying it now — and even he sussed out the “very publicly known & accepted deadline in the Statute of Limitations” which his current “COUNCIL” omits to mention.

Thanks for just admitting that I was telling the truth about EVERYTHING. 😂 Guess I'll take my "horse face" back to bed now, Mr. former "president".
Btw, that's the correct way to use quotation marks. 💋 pic.twitter.com/VSG867kwk8

— Stormy Daniels (@StormyDaniels) January 31, 2023

But there was one thing Tacopina was clear on: There was no way in hell that he was going to let his client testify before the Manhattan DA’s grand jury. Poor Donald Trump, faithful husband and innocent victim of a dastardly extortion plot, will not be telling his tale of woe under oath. Not now, not ever.

And that one is totally believable.

Trump won’t testify before NY grand jury investigating hush money scheme, lawyer says [CNN]

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

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“This is entirely a personal matter; this matter has nothing to do with Apollo or my decision to step away from the firm.”

We mean, sure, the timing of the revelation of that “personal matter”—an affair with a Russian model which we could very much imagine having a negative impact on Debra Black’s well-being—and Black’s hastened and more complete-than-expected exit certainly seems suspicious, he assures us that the two have nothing to do with one another, and also that said Russian model is a total liar except about the sex part.

Neither Black nor Apollo mentioned at the time that days leading up to the resignation at least four of Apollo’s 12 board members had become aware of a series of little-noticed but explosive tweets by Güzel Ganieva, a former model who claimed to have been “forced to sign an NDA in 2015” relating to allegations that Black “sexually harassed and abused ” her, according to sources close to the situation….

“I foolishly had a consensual affair with Ms. Ganieva that ended more than seven years ago,” Black said in his statement. “Any allegation of harassment or any other inappropriate behavior towards her is completely fabricated….”

Black added that he believes he was being “extorted” by Ganieva because he had allegedly “made substantial monetary payments to her, based on her threats to go public concerning our relationship, in an attempt to spare my family from public embarrassment.”

The billionaire said he has referred the matter to “the criminal authorities” at the recommendation of his counsel and welcomes “a thorough investigation.”

We’re sure he does. After all, unlike the previous round of “thorough investigations,” Black doesn’t have anything left to lose from this one.

Leon Black’s surprise Apollo Global exit came amid sexual harassment allegation [N.Y. Post]

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