He’s at it Again

Mr. Thomas Oatway is at it again in his April 5 letter. As he notes, the Supreme Court has, in connection with the indictment concerning the events of Jan. 6, granted the request for a hearing on President Donald Trump’s claim of presidential immunity in criminal proceedings, a review Special Prosecutor Jack Smith previously urged the court to undertake. Mr. Oatway asserts that the court, “with the intent to delay the trial” in that case until after the election, set oral argument for April 25.

Some facts might be helpful. The court hears about 70-80 cases a year. A court term starts in October and ends in June, with dates on which the court will hear oral argument established for the term in September. The last argument dates this term were set for April 15, 16, 17, 22, 23 and 24. The 10 cases set for argument on the April dates were scheduled in February, and modified after the court granted review in the Trump action on Feb. 28, by adding an additional argument date — April 25. The procedural history of the granting of review can be summarized as follows: the Circuit Court issued its opinion on Feb. 6, Trump filed for a stay on Feb. 12, which the Department of Justice requested the court treat as a request for review on Feb. 16. This request was accepted by the court and review granted on Feb. 28. Thereafter, the court scheduled oral argument on April 25, rather than the next term beginning in October. As the Court’s hearing calendar for March and April were already set, and full, it added an additional date in April for oral argument. This also provided the parties and amicus time to submit briefs detailing their positions. So, contrary to Mr. Oatway’s contention, the court has taken up the case on an expedited basis.

The court also has before it Fischer v. the United States, involving the question of whether the government can rely on 18 U.S. Code Section 1512, subsection c, in charging defendants in connection with Jan. 6. The DOJ has charged hundreds of people involved in the events of Jan. 6 with two crimes: 1. Trespassing, to which they have added a sentence enhancement of interference with a “judicial” proceeding; and 2. Violating Section 1512c, obstructing an official proceeding. SCOTUS has already ruled that the sentence enhancement was improper, as no judicial proceedings were involved in the events of Jan. 6. The hearing on the Section 1512c issue (as to which review was granted in December 2023) is set for April 16. The decision in this case, which is expected in June, could affect the Trump indictment in the DC case as half of the charges are premised on Section 1512c. Thus, this issue makes it difficult, to say the least, for the trial court to proceed to trial before its determination.

Finally, the DOJ had three years to indict President Trump. It delayed bringing charges for years. Was this intentional so as to have the trial during the 2024 election? If the case does not get to trial before the election, the DOJ’S decision to delay bringing charges until shortly before the election is to blame, not the courts for attempting to make sure that the defendant receives a fair trial. It also results in a trial in which Trump has a more than credible claim that he cannot adequately prepare for trial within the limited time, which results from the DOJ’S delay in charging him.

He is likewise misinformed concerning the Miami classified documents case. Again, the DOJ did not bring the charges until June 2023. Because of the nature of the charges, and the complex law/rules surrounding prosecution of classified documents cases, it was always exceedingly unlikely that it could be brought to trial before the election. Finally, while it is true that Judge Aileen Cannon appointed a special master to review the seized documents (they even included Trump’s passport) to determine whether any of the documents were subject to attorney-client or executive privilege, it is not true that this order in any way delayed the case as it was stayed in a matter of days after it was issued. Mr. Oatway asserts that the order was “shot down 8-0 by a conservative appeals court.” This is obviously a bit of legerdemain given that the issue was decided by a three-judge panel, two of whom were Trump appointees (they apparently did not get the message about protecting Trump). He has obviously not read the decision, which turned on the question of the limited nature of the jurisdiction of federal courts, which arose because President Trump’s counsel had failed to timely object to the subpoena/search warrant, and the DOJ had already completed the review of the documents and had its own process to exclude privileged documents.

Apparently Mr. Oatway believes President Trump is not entitled to a fair trial and the judicial process designed to assure that he and all other defendants are so treated is a “failure of our judicial system.” Gee, I thought it was the point of the proceedings, enshrined in the Bill of Rights.

Finally, he mentions the New York “business fraud” case. The problem is this was not a fraud case. As with every claim, fraud has elements that must be proven. In a fraud case these include: 1. a representation of fact (an opinion as to the value of property is not a fact, so the state would have to prove Trump knew it was false at the time it was made); 2. the representation was made with the intent that it be relied on; 3. the representation was actually relied on (the lenders testified they did not rely on the opinions as to value, but made their own analysis of the value of the properties, as anyone, including Trump, who has bought or sold or borrowed against real property knows they would); and 4. the lenders must have suffered damages (they did not as the loans were repaid in full). Thus, literally all of the elements necessary to establish fraud were not proven or for the most part even in issue. Whatever was decided by the New York court, it was not fraud, business or otherwise. Stephen Maseda

Santa Clarita