I’m out of the hearing on Jeffrey Clark’s bid to move his Fulton County criminal case to federal court.
Clark did not show up, but what occurred during the hearing does not bode well for his efforts to remove the case to federal court…🧵👇
1/
When removing a case to federal court, the defendant—Clark—bears the burden of showing that he acted under color of federal office and that he can raise a “colorable federal defense.”
To carry that burden, Clark needed to admit evidence supporting both of those factors..
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That’s why Meadows took the stand in his own removal hearing: To carry his evidentiary burden.
Here, though, Clark chose not to testify.
Instead, his lawyer tried to admit a written statement by Clark.
But Judge Jones refused to admit the statement into evidence…
3/
Jones also refused to admit portions of an affidavit by former AG Edwin Meese, which Clark relied on to support the claim that he acted in the scope of his office.
So, in other words, much of the evidence Clark sought to rely on will not be even be considered by the judge.. 4/
Jones indicated that there are some exhibits filed by Clark that he may allow into evidence.
Even so, it’s hard to see how Clark can carry his burden for removal absent the declaration or testimony.
And that is precisely what Fulton County prosecutors argued in closing…
5/
Even beyond these evidentiary challenges, Judge Jones seemed to express skepticism about Clark’s arguments for removal.
Jones pressed Clark’s attorney on his clients involvement in 2020 election matters and at times disputed Clark’s version of events..
6/
Meanwhile, Fulton County prosecutors called Jody Hunt, former assistant AG of DOJ’s Civil Division, to testify about the scope of office in that role. (Clark, at the time of the conduct for which he was indicted, served as acting assistant AG in the civil division.)
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“In my experience, it is not the role of the civil division” to engage in affirmative activities related to state election matters, Hunt testified.
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Clark’s attorney sought counter this by suggesting that Trump had “ratified” Clark’s involvement with election matters at a Jan. 3 meeting at the White House.
In turn, Georgia prosecutors argued that Clark failed to show any evidence supporting that claim.
9/
All in all, I got the sense that Clark, like Meadows, will not succeed in his effort to move his Fulton County case to federal court.
Those are some of the high-level takeaways from the hearing, but look for my meticulously detailed dispatch in @lawfare later today!
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The footnote arises in one of the more controversial parts of the court’s opinion. The majority, having decided that a president is presumptively immune from being held criminally liable for all official acts, goes one step further in Section III-C.
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Not only is the president presumptively immune from prosecution for official acts, but the majority holds that evidence of those official acts cannot be used in a prosecution based on unofficial conduct.
BREAKING: Judge Aileen Cannon dismisses Trump’s classified documents case based on “violations” of the constitution’s Appointments Clause and Appropriations Clause
NEW: Judge Cannon denies Trump's request for a Franks hearing on alleged false statements or omissions in the affidavit supporting Mar-a-Lago search warrant.
But she GRANTS his request for an evidentiary hearing on particularity of the warrant and attorney-client privilege.
In other words: Judge Cannon thinks there needs to be further factual development before she can rule on Trump's motion to dismiss his charges based on insufficient particularity of the warrant and AC privilege.
On the issue of the particularity requirement, Judge Cannon says that she "agrees with Defendant Trump that ambiguities persist in certain categories of terms."
Namely: "government and/or Presidential records" and "information...regarding national defense information."
Hello from the federal courthouse in Ft. Pierce, where we’re on lunch break ahead of a hearing in Trump’s classified docs case.
Coming up: A hearing on the special counsel’s motion to bar Trump from making statements that pose a significant danger to law enforcement agents.
UPDATE: Court has adjourned for the day.
During the afternoon session, Judge Cannon appeared disinclined to grant the special counsel’s request to restrict Trump from making statements that pose a significant and imminent danger to law enforcement in the case.
Judge Cannon reprimanded prosecutor David Harbach during the tense hearing. As Harbach argued that redacting witness names on court documents is not sufficient to protect law enforcement officers in the case, Cannon interjected:
Good morning from the federal courthouse in Ft. Pierce, FL ☀️🌴
Later today, Judge Aileen Cannon is set to hold a hearing on one of Trump’s motions to dismiss his criminal charges in the classified documents case.
I’m here for @lawfare. Follow along for updates ⬇️ 🧵
Today marks the start of not just one but three days of hearings scheduled by the presiding judge, Aileen Cannon.
The focus this morning? Trump’s argument that his charges in the classified docs case should be dismissed bc special counsel Jack Smith was “unlawfully” appointed.
Unfortunately, federal court rules in the Southern District of Florida prohibit phones in the courtroom. So no live tweeting from me today.
I’m stashing my phone now, but I’ll provide updates as soon as I’m able to during breaks.