Friday, June 30, 2023

Answers Worth What You Pay For Them

The short retort is: probably. Followed by: if it was that simple, nobody would ever go to trial. But to answer a previous question:
Not sure if you know, but I certainly have been confused about rules/procedures regarding how the separate charges against multiple defendants in a single indictment work. He and Nauta are listed as co-defendants on a few of the obstruction/conspiracy/conceal charges, but Trump is the only one for the willful retention counts and a false statement charge. Can he not be tried just for those, independent of whatever goes on with Nauta, or are they intrinsically linked?
The short answer is: there is no short answer. Hey, it’s the law. Legal reasoning is an arcane process comprised of tradition, precedent constitutional law, statutes, and rules. Which is why there is no short answer.

But I don’t know criminal procedure, so I have to speak in generalities and what I remember from civil practice.

I worked a case as a legal assistant with two defendants. Generally the principle of judicial economy directs as few trials as possible. These two defendants didn’t have any reason to object to one trial. Their exposure arose from the same set of facts, and liability for one wasn’t affected by the liability of the other. Had there been a conflict, a matter where, arguably, one defendant couldn’t receive a fair trial because the defense (or case against) would unduly prejudice the other defendant. It’s a fact based argument, so I can’t be much more specific. Basically, if a defendant can show the joint trial unfairly prejudices a defendant, that a fair trial is impossible, there can be two trials. But it is a high bar, because judicial economy sets the baseline.

So can Nauta be separated? I think if he takes too long to get counsel, it could probably support a motion to sever him, again basically for judicial economy. In this case that seems likely, because Nauta is facing 3 (IIRC) charges, . He’s in this mainly so the prosecution doesn’t have to prove the base accusations twice: once to prosecute Trump, and again to prosecute Nauta.

The more likely course is that the court appoints Nauta counsel, for the simple reason the court won’t brook delays that are simply delaying tactics. Judicial economy underlies all of this.

Then again, there are reports of a possible superseding indictment in Florida, which might bring in more defendants, but would certainly bring more charges against Trump. And argue even more strongly for severance of the cases. Or, again more likely, that Nauta gets a lawyer assigned, because the case against Trump is the case against Nauta. And that case should not be delayed (the government has legitimate interests in justice delayed being a bad thing), nor should the government be forced to try its case twice.

In the end it’s less the language of a rule than it is the decision (and discretion) of the court, as is true in all matters legal. That’s why you can seldom say “This is how it must be.” I think Cannon’s previous abuse of process (the court’s lack of jurisdiction in the documents dispute. Jurisdiction is like pregnancy; it’s there, or it isn’t. There is no “a little bit” about it.) was clear cut; but it took months to resolve. Still, in the end, it moved rapidly. The 11th circuit didn’t like what it saw, and took care of it. I thought all along the rules were clear. But it took a court ruling to make it so. That was how it must be, but it didn’t move at the speed of a breaking news cycle.

In the end, will there be delays in Florida? Not, I think, because of Nauta. If the court severs him and Trump loses in trial (as he will), is Trump still disposed to pay Nauta’s legal fees? That’s a practical consideration for Nauta. He might even get counsel who urges him to take a plea deal, which would undoubtedly set him at odds with his sugar daddy.

There’s a lot that can happen here, very little of it likely to get Trump a trial postponement until 2025.


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