With a Supreme Court review of a key defense imminent in former President Donald Trump’s criminal prosecution for his actions on Jan. 6, 2021, defense counsel asked a federal judge on March 19 to stay proceedings of all Jan. 6 civil cases brought against him.
“President Trump should not be forced to waive any of his constitutional rights in this matter, nor prematurely telegraph his criminal defense strategies prior to the completion of the criminal proceedings.”
Will Presidential Immunity Shield Trump in Civil Cases?
But judges in the U.S. District Court for the District of Columbia have also been grappling with President Trump’s presidential immunity defense, twice ruling that it did not apply to President Trump even in these civil cases because he was not acting in his capacity as president but as a candidate.However, the appeals court also said President Trump should be given every opportunity to show that his acts were official in his defense.
In February, U.S. District Judge Amit Mehta held a hearing for three similar civil cases against President Trump, trying to identify what materials needed to be produced in discovery to give President Trump a chance to argue that he has immunity.
Defense counsel presented a new obstacle; since the civil cases were brought, President Trump was criminally indicted for his actions on Jan. 6, 2021.
The actions in both cases, such as President Trump’s speech at the Ellipse and his social media posts, have significant overlap. In the new motion, the defense pointed out that the judge and opposing counsel have said as much in recent hearings.
They argued that President Trump could not submit any sworn statements about that day without coordination with defense counsel from his criminal case, so as to preserve his Fifth Amendment rights.
The charges in the criminal case are serious and “carry a maximum penalty of decades in prison,” the defense argued.
“President Trump has been indicted and is entitled to the full protection of constitutional rights,” they said.
A defendant invoking the Fifth Amendment in a criminal trial is entitled to the presumption of innocence, but in a civil trial, the jury can draw a negative inference from the defendant’s choice to stay silent. To force him to choose to be silent now would “prejudice President Trump’s ability to effectively defend himself in both these civil cases and the Special Counsel criminal matter,” the defense argued.
Given that President Trump is facing four ongoing criminal prosecutions and appealing three civil cases at the same time, defense counsel in the civil case argued that it could take a while before they could coordinate with his criminal case counsel to agree on what can be stated in the civil case.
Judge Mehta ordered the parties to meet and see if they could come to an agreed set of facts, and weeks later at a status conference in March, they said they could not.
Even answers to questions such as who was running President Trump’s social media account and who arranged his calendar events on Jan. 6, 2021, couldn’t be answered at this stage because it could reveal defense strategy to prosecutors in the criminal case, attorneys argued.
‘Judicial Economy’
Defense counsel argued in the new motion that beyond the Fifth Amendment issues, pausing the civil cases would be prudent for reasons of “judicial economy.”The Supreme Court’s opinions and decisions on presidential immunity “are likely to be highly relevant to the question of presidential immunity in civil cases presented in this matter,” they argued. The court otherwise runs the risk of “being overcome” by a higher court order later.
Attorneys in several other Trump cases have also argued for a stay this month, citing their presidential immunity motions that could be affected by any Supreme Court decision.
In New York, President Trump was set to go to trial next week, but a judge recently delayed the trial by 30 days for reasons unrelated to presidential immunity. Defense attorneys have accused the Manhattan district attorney of misconduct in that case, and the judge will hold a hearing on March 25 on the defense’s motion for a dismissal.
