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      Menendez Indictment Could Undercut G.O.P. Attacks on Justice Department

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      The indictment of the Democratic senator from New Jersey comes at a politically opportune moment for the besieged Justice Department.On Wednesday, Republicans on the House Judiciary Committee repeatedly accused Attorney General Merrick B. Garland of singling out former President Donald J. Trump for selective prosecution, slamming him for what they call a “two-tiered system” of justice.Forty-eight hours later, the Justice Department indicted one of the most powerful Democrats in the Senate — Bob Menendez of New Jersey, the chairman of the Foreign Relations Committee — on bribery charges, making public a trove of evidence, including cash and gold bars stashed at his house.The department’s aggressive pursuit of Mr. Menendez appeared to undercut claims that Mr. Trump is the victim of pervasive political bias that targets leaders on the right while shielding transgressors on the left.The entanglement of electoral politics and law enforcement is becoming the norm, and the prosecution of a top Democrat up for re-election in 2024 has political as well as legal reverberations. And the indictment, brought by federal prosecutors in Manhattan with limited participation from the Justice Department’s national security division in Washington, comes at a politically opportune moment for the besieged department.“This case really should silence any critic who wrongly suggests that D.O.J. is politicized under Garland,” said Anthony D. Coley, a former spokesman for the department. “This D.O.J. follows the facts — and isn’t influenced by partisan politics, political affiliation or wealth — not anything but facts and law.”Barbara Comstock, a former Republican congresswoman from Virginia, said recent indictments showed the department was functioning as it should. “The department goes where the facts lead them,” she wrote on X, formerly known as Twitter. “Trump, Hunter Biden, Menendez now. That’s how it’s supposed to work.”But the indictment could cut the other way, playing into the Republican argument, used so effectively by Mr. Trump during the 2016 campaign, that Washington is a swamp lorded over by corrupt Democrats. Republican reaction to the news was initially muted, but the Republican National Committee and House Republicans took to social media in an attempt to link Mr. Menendez to President Biden and the Hunter Biden scandal.Rules adopted by Senate Democrats require Mr. Menendez to immediately step aside as chairman of his committee, as he did when he was first indicted in 2015, reclaiming his post when the charges against him were dropped three years later.Mr. Menendez, one of the most powerful Democrats in the Senate, is the chairman of the Foreign Relations Committee. He is now required to step down from his leadership role.Haiyun Jiang/The New York TimesIf that buys Democrats some breathing space, it does little to weaken the longer-term political challenges, with President Biden and Senator Charles Schumer, the majority leader, likely to face increasing pressure to urge a defiant Mr. Menendez to voluntarily resign his seat.“Active matter, not going to comment,” said the White House press secretary Karine Jean-Pierre, when asked whether the president wanted the senator to quit.Gov. Philip D. Murphy of New Jersey, who would have the power to appoint Mr. Menendez’s successor, called on Mr. Menendez to resign on Friday. His message was soon followed by like-minded calls from political leaders throughout the state.Earlier in the day, several other Democrats made similar statements. Representative Dean Phillips of Minnesota compared the senator with Representative George Santos, the Long Island Republican indicted in May on 13 charges, including wire fraud. “It’s appalling,” Mr. Phillips told CNN.But Mr. Menendez showed no sign of backing down. Some top Democrats, including Mr. Schumer and Senator Benjamin L. Cardin of Maryland, who is likely to take over his gavel on the committee, released statements urging patience while the judicial process played out.Shortly after the charges were announced, Mr. Menendez issued a blistering one-page-long denial that was not unlike the vehement pushback by Mr. Trump and his supporters in response to his multiple criminal indictments.“For years, forces behind the scenes have repeatedly attempted to silence my voice and dig my political grave,” he wrote. “The excesses of these prosecutors is apparent.”Mr. Trump has not been accused of bribery or pay-to-play corruption. Yet Mr. Menendez’s indictment carries faint echoes of the investigation into the former president’s retention of classified documents at his Florida estate — most notably the inclusion of photographs from the senator’s house that were instantly disseminated on social media.But the charges against Mr. Menendez, whose opposition to the administration’s efforts to thaw relations with Cuba rankled many in the White House, are highly unlikely to influence the Republican strategy of undermining public confidence in the Justice Department under Mr. Garland and federal law enforcement more generally.During the contentious oversight hearing on Wednesday that foreshadowed the looming impeachment inquiry of President Biden, Republicans blasted Mr. Garland, time and again, for slow-walking the investigation into Hunter Biden, the president’s son, while fast-tracking two indictments against Mr. Trump.“There’s one investigation protecting President Biden — there’s another one attacking President Trump,” said Jim Jordan, Republican of Ohio and chairman of the House Judiciary Committee. “The Justice Department’s got both sides of the equation covered.”The hearing, which lasted more than five hours, focused primarily on the department’s five-year investigation of Hunter Biden, and a plea deal negotiated by David C. Weiss, the U.S. attorney for Delaware overseeing the case, that would have spared Mr. Biden prison time on gun and tax charges. That agreement fell apart during a court hearing in July, and the government has indicted Mr. Biden on three felony weapons charges, while continuing its investigation into his lucrative consulting deals with foreign companies.The claim that Mr. Garland has weaponized the Justice Department for political purposes, while thus far unsupported by evidence, is a pillar of Republican messaging. Not only is it a way to rally the party’s base, but it is meant to counter a mountain of witness testimony and documentary evidence against Mr. Trump, who is accused of illegally retaining classified documents and trying to overturn the 2020 election.“Our job is not to take orders from the president, from Congress, or from anyone else, about who or what to criminally investigate,” the attorney general said. “I am not the president’s lawyer. I will also add that I am not Congress’s prosecutor. The Justice Department works for the American people.” More

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      Request for Gag Order on Trump Raises Free Speech Dilemma

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      By putting the prospect of political violence at the heart of their argument to limit the former president’s statements about the election case, federal prosecutors raised issues that have little precedent.The request by prosecutors that a judge impose a gag order on former President Donald J. Trump in the federal election-subversion case presents a thorny conflict between the scope of his First Amendment rights and fears that he could — intentionally or not — spur his supporters to violence.There is little precedent for how the judge overseeing the case, Tanya S. Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it.It is one more example of the challenges of seeking to hold to account a norm-shattering former president who is being prosecuted in two federal cases — and two state cases — as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.“Everything about these cases is making new law because there are so many gaps in the law,” said Paul F. Rothstein, a law professor at Georgetown University and a criminal procedure specialist. “The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap.”Citing a spate of threats inspired by the indictment of Mr. Trump in the election case, the special counsel overseeing the prosecutions for the Justice Department, Jack Smith, asked Judge Chutkan this month to order the former president to cease his near-daily habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.A proposed order drafted by Mr. Smith’s team would also bar Mr. Trump and his lawyers from making — or causing surrogates to make — public statements, including on social media, “regarding the identity, testimony or credibility of prospective witnesses.” The motion cited Mr. Trump’s attacks on former Vice President Mike Pence and former Attorney General William P. Barr, who refused to go along with his efforts to overturn the 2020 election.The draft order would allow Mr. Trump to say he denies the charges “without further comment.”Jack Smith, the special counsel, asked the judge to order Mr. Trump to cease his habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.Doug Mills/The New York TimesA version of the motion was unsealed late last week. Judge Chutkan, of the Federal District Court in Washington, has ordered Mr. Trump’s legal team to file any opposition to it by Monday and is likely to hold a hearing on the request next month. A spokesman for Mr. Trump has called the request “blatant election interference” and a corrupt and cynical attempt to deprive the former president of his First Amendment rights.Gag orders limiting what trial participants can say outside of court are not uncommon, especially to limit pretrial publicity in high-profile cases. Courts have held that orders barring participants from certain public comments are constitutional to avoid prejudicing a jury, citing the public interest in the fair and impartial administration of trials.The context of the gag request for Mr. Trump, though, is different in fundamental ways.Mr. Smith’s filing nodded to the potential for Mr. Trump’s statements to complicate the process of seating an unbiased jury in the case, which is scheduled to go to trial in March. But the request for the gag order focused primarily on a different concern: that Mr. Trump’s angry and vengeful statements about the proceedings against him are putting people in danger now.The motion cited “multiple threats” to Mr. Smith. It noted that another prosecutor, Jay I. Bratt, had been subject to “intimidating communications” after the former president targeted him in “inflammatory public posts,” falsely saying Mr. Bratt had tipped off the White House before Mr. Trump’s indictment in the case accusing him of mishandling classified documents.And it cited the case of a Texas woman who has been charged with making death threats to Judge Chutkan last month. She left the judge a voice message using a racist slur, court filings show, and said, “You are in our sights — we want to kill you.”“If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” the message said, adding that “you will be targeted personally, publicly, your family, all of it.”Prosecutors connected their request to the threats and harassment that election officials and other people carrying out election-related duties experienced after Mr. Trump attacked them in late 2020 as part of his false claims that the election had been stolen.“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” the motion said, adding: “Given the defendant’s history described above and the nature of the threats to the court and to the government, it is clear that the threats are prompted by the defendant’s repeated and relentless posts.”In that sense, the request for the gag order was as much about what is sometimes called stochastic terrorism — the idea that demonizing someone through mass communication increases the chances that a lone wolf will be inspired to attack the target — as it was about more traditional concerns of keeping a jury from being influenced by statements outside of court.The request raises both legal and political issues and carries the risk of playing into Mr. Trump’s hands.The former president and his defense team have made clear that they want people to think the case is about whether he had a First Amendment right to say whatever he wanted about the election. Mr. Smith sought to head off that move by acknowledging in the indictment that Mr. Trump had a right to lie to the public and by not charging him with inciting the Capitol riot.But the gag order request is directly about what Mr. Trump is allowed to say. Moreover, it has given him more fodder to portray the case as intended to undercut his presidential campaign — and, if he is under a gag order and loses again in 2024, to once again tell his supporters that the election was rigged.Judge Tanya S. Chutkan of the Federal District Court in Washington has ordered Mr. Trump’s legal team to file any opposition to the motion by Monday.Administrative Office of the U.S. Courts, via Associated PressWhen the motion became public, Mr. Trump riffed on it with apparent glee.“They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry, I won’t be able to answer’ — how do you think we’ do in that election?” Mr. Trump said at a summit of religious conservatives. “So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”Implicit in the ways he could “have a little bit of a fun” is the question of how Judge Chutkan could enforce any such order if Mr. Trump skirted its edges or even boldly defied its limits. It would be one thing for her to impose a fine, but if he refused to pay or to tone down his statements, a next step for a judge in a normal case would be to order imprisonment.Any such step in this case would be legally and politically explosive.At a hearing last month, Judge Chutkan vowed to “take whatever measures are necessary to protect the integrity of these proceedings” and warned lawyers for Mr. Trump that they and their client should consider their public statements in the case.“I intend to ensure the orderly administration of justice in this case, as I would with any other case,” she said, “and even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”The judge also suggested that she could speed up the trial date as an alternative penalty. “The more a party makes inflammatory statements about this case, which could taint the jury pool or intimidate potential witnesses,” she said, “the greater the urgency will be that we proceed to trial quickly to ensure a jury pool from which we can select an impartial jury.”Most cases about gag orders affecting criminal defendants have focused on limits imposed on what their lawyers, not the defendants themselves, can say outside of court — in part because defense lawyers typically order their clients to say nothing in public about their cases anyway. That is one of many ways Mr. Trump operates from a different playbook.In a 1991 case, which prosecutors cited in their motion, the Supreme Court upheld local court rules that bar defense lawyers from making comments outside court that are substantially likely to materially prejudice a jury. Such a regulation, it said, “constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the state’s interest in fair trials.”But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. The justices have never addressed what standard a gag order on a defendant must meet to pass First Amendment muster. A handful of appeals courts have addressed gag orders imposed on trial participants who are not lawyers and set different standards.Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, predicted that any gag order would be more likely to survive on appeal if Judge Chutkan barred Mr. Trump only from attacking witnesses and jurors. The First Amendment provides particularly strong protections for criticism of government officials, she noted.Still, Professor Tarkington acknowledged that a gag order that still permitted demonizing the judge and prosecutors would not address much of the concern that prosecutors are raising. She also said past gag-order cases offered few guideposts because Mr. Trump is such a unique figure: His megaphone and its potential impact on his more extreme supporters — as demonstrated by the Capitol attack on Jan. 6, 2021 — puts him in a different realm.“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Professor Tarkington said. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power.”In their motion to Judge Chutkan, prosecutors also cited an appeals court ruling in 2000 that involved a rare example of a defendant who challenged a gag order. A judge had prevented all trial participants from making statements outside the court “intended to influence public opinion” about the case’s merits, and the defendant, an elected insurance commissioner in Louisiana named Jim Brown, wanted to be exempted. But the appeals court upheld it.The motion said the Brown precedent showed that the reasoning of the 1991 Supreme Court case upholding gag orders on defense lawyers “applies equally” to defendants. But prosecutors omitted another seemingly relevant factor: The gag order was lifted for about two months to avoid interfering with Mr. Brown’s re-election campaign and reimposed only after the election was over.“Brown was able to answer, without hindrance, the charges of his opponents regarding his indictment throughout the race,” the appeals court noted, adding, “The urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.” More

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      How Biden’s View on Presidential War Powers Has Shifted

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      The president says he can direct limited military operations without lawmakers’ approval. Most G.O.P. presidential candidates, including Donald J. Trump, did not answer a survey on executive power.If he is elected to a second term, President Biden pledged that he will go to Congress to start any major war but said he believed he was empowered “to direct limited U.S. military operations abroad” without such approval when such strikes served critical American interests.“As president, I have taken great care to ensure that military actions carried out under my command comply with this constitutional framework and that my administration consults with Congress to the greatest extent possible,” he wrote in response to a New York Times survey of presidential candidates about executive power.“I will continue to rigorously apply this framework to any potential actions in the future,” he added.The reply stood in contrast to his answer in 2007, when he was also running for president and, as a senator, adopted a narrower view: “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”In the survey, The New York Times asked major presidential candidates to lay out their understanding of issues that can be critical to the outcome of policy fights but about which they are rarely asked: the scope and limits of a president’s power to act unilaterally or in defiance of statutes, particularly in war, secrecy and law enforcement.Mr. Biden’s answers showed how his view of executive power evolved over years in the White House — eight as Barack Obama’s vice president and now nearly three as president.Only a handful of candidates for the Republican nomination engaged in the survey, including former Vice President Mike Pence, former Gov. Asa Hutchinson of Arkansas and Mayor Francis Suarez of Miami before he suspended his campaign late last month.Vivek Ramaswamy, a businessman and entrepreneur, answered only about half of the 14 questions, and former President Donald J. Trump declined to participate altogether, as did Gov. Ron DeSantis of Florida and Nikki Haley, the former ambassador to the United Nations, among others.The Times has published in full the answers of participants, including Mr. Biden and two of his Democratic challengers, Robert F. Kennedy Jr. and Marianne Williamson.Notably, Mr. Biden declined to embrace the idea of curtailing emergency powers Congress enacted that presidents can activate if they declare that there are exigent circumstances, said Jack Goldsmith, a Harvard Law School professor and former senior Justice Department lawyer in the Bush administration.Mr. Trump invoked emergency powers to spend more on a border wall than lawmakers were willing to appropriate, and the Biden administration invoked the authority for a plan to forgive more than $400 million in student debt. (The Supreme Court struck down the proposal over the summer.) There are bipartisan proposals in Congress to impose new curbs, such as by ensuring that national emergencies terminate after 30 days unless lawmakers affirm a presidential declaration.Asked whether he would sign such a bill, Mr. Biden instead made a vague remark about “working with Congress on devising sensible solutions to the challenges we face as a nation.” He added that he would use every tool at his disposal to respond to emergencies.“If Biden is not open to reform — and his answer was as noncommittal as he could be without saying he was not open to it — then it is likely dead on arrival,” Professor Goldsmith said.On the topic of pardons, every candidate who answered the survey said that a president cannot pardon himself. While in office, Mr. Trump claimed he had a legal right to do so, but that is an ambiguous and untested constitutional question. It could become important if he wins the 2024 election even as he faces criminal charges in two federal cases.Former President Donald J. Trump claimed he had the legal right to pardon himself.Doug Mills/The New York TimesIndeed, while Mr. Trump did not participate in the survey, many of its questions addressed disputed assertions of executive power he made as president, and he and his allies are openly planning to expand his authority over the machinery of government if he wins in 2024. Mr. DeSantis has also pushed an expansive view of executive powers as Florida governor.The refusal by the two men and most other G.O.P. contenders to answer questions on the powers they are seeking from voters reflects a party shift that emerged in the 2016 primary, which Mr. Trump upended by becoming the front-runner ahead of establishment candidates.Other Republican presidential hopefuls in the current primary campaign who declined to answer the questions included Senator Tim Scott of South Carolina, Chris Christie, the former governor of New Jersey, Gov. Doug Burgum of North Dakota, and Will Hurd, a former representative of Texas.By contrast, most major Republican primary candidates in 2007 and 2011 were willing to answer the versions of the questions put to them those years, including the party’s eventual nominees, John McCain and Mitt Romney.Four years ago, 17 Democrats vying for their party’s nomination to challenge Mr. Trump also participated in the project. Mr. Biden was among them, making his answers this cycle the third time he has participated. (His willingness to do so as an incumbent seeking re-election also stood in contrast to Mr. Obama, who declined to participate in 2011.)In 2019, Mr. Biden had already shifted to embracing the view, adopted by the executive branch under administrations of both parties, that presidents have broader constitutional authority to carry out limited attacks on other countries without congressional authorization, so long as it falls short of full-scale war.As president, both Mr. Trump and Mr. Biden used force unilaterally, citing their claimed constitutional authority to use military force without congressional permission. In April 2017 and again in April 2018, Mr. Trump directed airstrikes against Syrian government forces, and Mr. Biden in June 2021 and in August 2022 directed airstrikes on Iranian-backed militia groups in Syria.Mr. Pence, who was vice president at the time of Mr. Trump’s strikes, said: “As commander in chief, the president has a constitutional duty to use his executive authority to protect the country from imminent threats. Whether a threat is imminent is a matter of judgment, and it is essential the president be a person of character, experience, and competence whose judgment the American people can trust.”To be sure, just because candidates commit to respecting a limit while on the campaign trail does not mean they will follow through once in office. But their legal policy statements can offer a way to analyze and bring attention to any departure from what they told voters.In 2019, for example, Mr. Biden said that if elected, he would order the Justice Department to review and potentially replace a legal policy memo that says sitting presidents are temporarily immune from indictment. He strongly criticized the department’s interpretation of the Constitution, which limited the special counsel investigating the Trump campaign’s ties to Russia and Mr. Trump’s attempts to impede that inquiry, Robert S. Mueller III.But Mr. Biden never followed through on that pledge. He is now protected himself by the Justice Department’s theory since a special counsel, Robert Hur, is investigating how several classified documents were in his possession when he left the vice presidency.In his survey answers this time, Mr. Biden sidestepped a question about that issue, instead offering a vague statement about Justice Department independence.“As president, I have fulfilled my campaign promise of restoring a strong and independent Department of Justice led by top-flight legal professionals dedicated to realizing the ideal that this nation was founded on of equal justice under the law,” he wrote. “This means no one is above the law — especially the president of the United States.” More

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      Justice Dept. Says It Will Indict Hunter Biden on Gun Charge This Month

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      The timetable, following the collapse of an earlier deal that would have allowed President Biden’s son to avoid any jail time, means he will face prosecution as his father seeks re-election.David C. Weiss, the special counsel investigating Hunter Biden, said on Wednesday that he planned to indict the president’s son on a gun charge before the end of the month — a move prompted by the acrimonious collapse of a plea deal in July.In a three-page update filed in federal court in Wilmington, Del., Mr. Weiss laid out plans to bring charges related to Mr. Biden’s purchase of a pistol in 2018, when prosecutors say he lied on a federal form by stating that he was not using drugs at the time. Mr. Biden had previously agreed to participate in a two-year diversion program for nonviolent gun offenders as part of the plea deal, which unraveled dramatically at the last minute this summer.Mr. Biden’s lawyer, Abbe Lowell, signaled in a statement that he would challenge any effort to proceed with a trial, arguing that the original agreement reached over the summer “remains valid and prevents any additional charges from being filed.”The government’s filing, while expected, adds an additional and volatile element to an already packed calendar of criminal cases coinciding — and colliding — with the 2024 presidential race. It piles on a possible federal trial of President Biden’s son to former President Donald J. Trump’s two federal and two state criminal cases.The status report by Mr. Weiss was filed at the request of a federal judge. It makes no mention of the status of likely separate charges stemming from the five-year investigation of Mr. Biden’s business dealings, and subsequent failure to pay taxes, conducted by Mr. Weiss, the U.S. attorney in Delaware who was appointed last month as a special counsel after overseeing the investigation. Last month, prosecutors told the court they intended to file the tax charges in either California or Washington, D.C.Leo Wise, a veteran prosecutor detailed to Mr. Weiss’s team in June, said in the court filing on Wednesday that the Justice Department would seek the return of an indictment on the gun charge before Sept. 29, citing a timetable set by the Speedy Trial Act.Mr. Biden appeared to be just hours away from resolving his legal troubles this summer through a deal that would have cleared up both the tax and gun investigations. But under questioning by a judge in federal court in Wilmington, prosecutors and defense lawyers were forced to acknowledge that they had very different interpretations of the terms of the agreement, leading to its collapse.After subsequent negotiations to revive an agreement on the tax and gun charges foundered, Attorney General Merrick B. Garland elevated Mr. Weiss to the status of special counsel, giving him more flexibility in pursuing the tax charges and the freedom to continue investigating other elements of the case.Under the original deal, Mr. Biden had agreed to plead guilty to two tax misdemeanors and to settle the gun investigation without being charged.Despite the collapse of the agreement, Mr. Lowell said that his client had been abiding by the terms of the original deal “for the last several weeks” and had been making regular visits to his court-assigned probation officer.Mr. Lowell suggested that he was continuing to pursue a “fair” deal with Mr. Weiss, not subject to “outside political pressure.”Mr. Weiss is the third special counsel appointed since Mr. Garland took office in March 2021, joining Jack Smith, who is overseeing the investigations of Mr. Trump, and Robert K. Hur, who is examining President Biden’s retention of sensitive documents from his tenure as vice president.The gun charge stems from Hunter Biden’s response of “no” on a federal form he filled out as part of the purchase of a handgun when asked whether he was an “unlawful user” of drugs. At the time, Mr. Biden, who had been addicted to crack cocaine, was struggling to remain sober.Such federal prosecutions are relatively rare, and seldom pursued as stand-alone charges. Officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives responsible for reviewing Mr. Biden’s file were skeptical of bringing charges against him, especially considering that he had sought treatment and had no prior criminal history, according to another person with knowledge of the situation. (The widow of his brother, Beau, later found the gun and threw it in a dumpster.)Another factor that could complicate the government’s case: Last year’s Supreme Court ruling that gave people a broad right to carry guns outside the home. Mr. Biden’s lawyers have argued that recent lawsuits challenging federal regulations, including the drug use restriction, could render a prosecution of Mr. Biden moot. More

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      Prosecutors Rest Case Against Peter Navarro in Contempt Trial

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      The defense also rested, with closing arguments expected to begin Thursday morning. The fast clip of the trial suggested that the jury could deliberate shortly after.Prosecutors rested their case on Wednesday in the criminal trial of Peter Navarro, who served as President Donald J. Trump’s trade adviser, saying he willfully ignored lawmakers in refusing to appear last year before the House committee investigating the Capitol attack.After delivering their opening statement, government lawyers took just three hours to introduce all their evidence, arguing that convicting Mr. Navarro revolved around one straightforward question: Did he show contempt for Congress when he disregarded the committee’s subpoena for documents and testimony?“This case is just about a guy who didn’t show up for his testimony? Yes, this case is that simple,” a prosecutor, John Crabb Jr., said in Federal District Court in Washington. “But this case is also that important — we are a nation of laws, and Mr. Navarro acted like he was above the law.”The defense also rested, calling no witnesses and presenting no evidence, with closing arguments expected to begin Thursday morning. The fast clip of the trial suggested that the jury could deliberate shortly after.Mr. Navarro, 74, faces two counts of contempt of Congress, making him the second top official of Mr. Trump’s to face criminal charges after declining to cooperate with the House committee. If convicted, Mr. Navarro could face up to a year in jail and a fine of up to $100,000 for each count.Stephen K. Bannon, who worked as a strategist and adviser to Mr. Trump in the early months of his administration, was also indicted on two counts of contempt of Congress after defying a subpoena from the committee. He was convicted last summer and sentenced to four months in prison, though he remains free while his appeal is pending.Lawyers for Mr. Navarro, limited in what defense they could make in court, sought to paint him as a diligent policy adviser who got caught up in fraught legal negotiations with the Jan. 6 committee.One of his lawyers, Stanley Woodward Jr., said that the Justice Department’s suggestion that Mr. Navarro was a critical witness to the panel’s investigation was overstated, describing prosecutors’ opening statement as theatrical.“It’s like one of those movies where you get nothing after the preview,” he said, while Mr. Navarro, who stood behind his lawyers’ table, paced back and forth and listened intently.The prosecution on Wednesday focused on correspondence between Mr. Navarro and the Jan. 6 committee in February last year, calling as witnesses three staff members on the panel who helped draft and serve the subpoena to Mr. Navarro.David Buckley, the staff director for the committee, and Daniel George, a senior investigative counsel, testified that the panel came to view Mr. Navarro as one of the more prominent public officials sowing doubt about the integrity of the 2020 election.The committee was particularly interested in a three-part report Mr. Navarro wrote claiming widespread voter fraud and a memoir he published after he left the White House.In the book, Mr. Navarro laid out a strategy he had devised with Mr. Bannon known as the Green Bay Sweep, intended to reject the results of the election in key swing states that had been called for Joseph R. Biden Jr. He described it as “our last, best chance to snatch a stolen election from the Democrats’ jaws of deceit.”But Mr. Navarro rebuffed their requests for an interview with the committee, both men testified.Mr. George, who formally notified Mr. Navarro about the subpoena, said that before he had even sent the subpoena itself, which included a list of documents the committee was seeking, Mr. Navarro responded minutes later with an email that simply stated, “executive privilege.”“I didn’t make much of that because we hadn’t communicated to him what we wanted to speak about,” Mr. George said.Mr. Navarro and his lawyers were left to mount a circuitous defense after the judge presiding over the case, Amit P. Mehta, rejected their main argument before the trial began: that Mr. Trump, who was no longer president at the time, had directed him to ignore the subpoena and that he was shielded by executive privilege. Mr. Navarro has consistently maintained outside court that he was merely acting on the orders of Mr. Trump, who Mr. Navarro says had expressly asked him and other senior advisers not to cooperate with the committee.Defense lawyers on Wednesday instead pinned blame on the House committee, saying that Mr. Navarro had referred members of the panel to Mr. Trump directly, but lawmakers did not follow up with him to confirm whether Mr. Navarro was covered by any privilege.Under cross-examination, Mr. George acknowledged that after Mr. Navarro initially responded to requests from the committee, members did not approach Mr. Trump or his lawyers to clarify whether he had expressly asked Mr. Navarro not to cooperate, citing executive privilege. More

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      How Free Speech and Willful Blindness Will Play Out in the Trump Prosecution

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      More than a decade ago, a divided Supreme Court ruled in United States v. Alvarez that an elected member of a district water board in California could not be prosecuted criminally for lying to an audience about winning the Medal of Honor. The court ruled that efforts to criminalize mere lying, without linking the lie to an attempt to gain a material advantage, posed an unacceptable threat to robust exercise of First Amendment rights.Given that decision, Jack Smith, the special prosecutor investigating former President Donald Trump, was right in concluding that Mr. Trump has a First Amendment right to lie to the general public.So, where’s the legal beef in the indictment arising from the events that culminated in the storming of the Capitol brought by Mr. Smith against Mr. Trump? It’s in the fact that Mr. Smith isn’t merely charging the former president with lying; he is contending that Mr. Trump lied to gain an unlawful benefit — a second term in office after voters showed him the exit. That kind of speech-related behavior falls comfortably within what the justices call “categorical exceptions” to the First Amendment like true threats, incitements, obscenity, depictions of child sexual abuse, fighting words, libel, fraud and speech incident to criminal conduct.As the court put it in 1949 in the case of Giboney v. Empire Storage and Ice Co., “it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”That is why Mr. Smith will most likely seek to prove that the former president was engaged in “speech incident to criminal conduct” when he and his co-conspirators lied to state legislators, state election officials, gullible supporters, Justice Department lawyers and Vice President Mike Pence in an illegal effort to prevent Joe Biden from succeeding him as president. Since Mr. Trump is charged with, among other crimes, conspiracy to defraud the United States and to deprive people of the right to have their votes counted, Mr. Smith would clearly be right in arguing that the Alvarez decision doesn’t apply.Characterizing Mr. Trump’s words as “speech incident to criminal conduct” would neatly solve Mr. Smith’s First Amendment problem, but at a substantial cost to the prosecution. To win a conviction, the government must persuade 12 jurors to peer inside Mr. Trump’s head and find beyond a reasonable doubt that he knew he was lying when he claimed to be the winner of the 2020 election. If Mr. Trump actually believed his false assertions, his speech was not “incident to criminal conduct.”How can Mr. Smith persuade 12 jurors that no reasonable doubt exists that Mr. Trump knew he was lying? The prosecution will, no doubt, barrage the jury with reams of testimony showing that the former president was repeatedly told by every reputable adviser and administration official that no credible evidence of widespread electoral fraud existed, and that Mr. Pence had no choice but to certify Mr. Biden as the winner.But there also will likely be evidence that fervent supporters of Mr. Trump’s efforts fed his narcissism with bizarre false tales of result-changing electoral fraud, and frivolous legal theories justifying interference with Mr. Biden’s certification as president-elect. Those supporters could include Rudy Giuliani; Sidney Powell, a lawyer and purveyor of wild conspiracy theories; Jeffrey Clark, the acting head of the Justice Department’s civil division, who apparently plotted with Mr. Trump to unseat the acting attorney general and take control of the department; and John Eastman, the lawyer who hatched the plan that Mr. Pence refused to follow to keep Mr. Trump in power.Maybe Mr. Trump himself will swear to his good faith belief that he won. With all that conflicting testimony, how is a conscientious juror to decide for sure what was really going on inside his head?The answer lies in the Supreme Court’s doctrine of “willful blindness.” A dozen years ago, in the case of Global-Tech Appliances v. SEB, Justice Samuel Alito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge.As Justice Alito explained it: “Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.”In other words, when a defendant, like Mr. Trump, is on notice of the potential likelihood of an inconvenient fact (Mr. Biden’s legitimate victory), and closes his eyes to overwhelming evidence of that fact, the “willfully blind” defendant is just as guilty as if he actually knew the fact. While this argument is not a slam dunk, there’s an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness.Burt Neuborne is a professor emeritus at New York University Law School, where he was the founding legal director of the Brennan Center for Justice. He was the national legal director of the American Civil Liberties Union from 1981 to 1986.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      in Elections

      Trump’s Mug Shot: ‘Not Comfortable’ but Potentially Lucrative

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      The former president’s campaign immediately began fund-raising off his booking photo and started selling merchandise featuring it.Former President Donald J. Trump has done his best to appear unfazed and unbowed by having been indicted four times since March, but even he acknowledged that he did not enjoy one particular element of his booking in Georgia on Thursday night on racketeering charges: the mug shot.“It is not a comfortable feeling — especially when you’ve done nothing wrong,” he told Fox News’s website in an interview afterward.Nonetheless, he made the most of it.Not long after the release of the mug shot — the first taken of Mr. Trump in any of the criminal proceedings he faces and the first known to have been taken of any former president — it appeared prominently on Mr. Trump’s campaign website, under a “personal note from President Donald J. Trump.”At the bottom were several tabs users could click to donate to his campaign in small-dollar increments.Mr. Trump quickly posted the picture on X, marking his return to the platform formerly known as Twitter for the first time since he was banned by the company’s former ownership following the attack on the Capitol by a pro-Trump mob on Jan. 6, 2021.The joint fund-raising website his campaign helps maintain immediately started offering mugs, beverage coolers and T-shirts in different colors and sizes with the mug shot and the words, “Never Surrender!” (Those words despite the fact that the photo was taken upon his surrender to authorities in Georgia.)Mr. Trump’s oldest son, Donald Trump Jr., posted on X a link to his own website featuring merchandise with the photo. The younger Mr. Trump said he would donate proceeds from the sales to a legal-defense fund that his father’s advisers had set up to assist with bills accrued by people who are witnesses in the cases.By late afternoon Friday, the Trump campaign had sent an email blast with the photo and Mr. Trump’s booking number.The mug shot represented perhaps the former president’s best chance to juice his fund-raising numbers in several weeks, after raising several million dollars following his March indictment in New York on charges related to hush-money payments to a porn actress but seeing that figure drop after the Justice Department’s special counsel, Jack Smith, filed charges against him in June for mishandling national security documents.Even before the mug shot was snapped at the jail in Atlanta, an email from his joint fund-raising committee primed his supporters by saying, “It’s been reported that if I am unjustly indicted and arrested in the Atlanta Witch Hunt, a mug shot will be taken of me.”Campaign officials did not make overnight fund-raising figures public on Friday morning.In a sign of how politically valuable the Trump campaign anticipated the mug shot could be to its fund-raising, one of Mr. Trump’s top advisers, Chris LaCivita, issued a warning on social media — with 11 siren emojis — to political entities that might seek to profit from the photo by using it to suggest a connection to the Trump campaign.“If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission …WE ARE COMING AFTER YOU you will NOT SCAM DONORS,” he wrote on X. The photo was released by the Fulton County sheriff’s department and is a public document.Mr. Trump has never shied away from opportunities to wring financial benefit from what is happening in his life and career. But in this case the personal and the political were mixed in ways that he acknowledged were out of the ordinary even by his standards.“They insisted on a mug shot and I agreed to do that,” Mr. Trump told Fox News’s website after he was booked on a lengthy list of charges stemming from his efforts to remain in power after his election loss. “This is the only time I’ve ever taken a mug shot.”(President Biden, vacationing in Lake Tahoe, was asked by a reporter if he had seen the mugshot. “I did see it on television. Handsome guy,” he said.)In the New York case, the office of the Manhattan district attorney, Alvin L. Bragg, opted against a mug shot, which is used to identify criminal defendants in case they flee while awaiting trial. Federal officials came to the same conclusion that there was no need to take another picture of Mr. Trump, arguably one of the most recognizable faces on the planet.But in Fulton County, Ga., on Thursday, officials adhered strictly to protocol, even as Mr. Trump appeared at the jail with news helicopters tracking his motorcade.That decision left some of Mr. Trump’s rivals unsettled.“I think it’s disgraceful,” said Nikki Haley, the former governor of South Carolina, on Fox News on Friday. “I mean, the idea that we’re seeing a mug shot of a 77-year-old former president. I mean, how did we get to this point? And I don’t know that anyone in America should look at that and feel good about it.” More

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      in Elections

      How Mark Meadows Pursued a High-Wire Legal Strategy in Trump Inquiries

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      The former White House chief of staff, a key witness to Donald J. Trump’s efforts to remain in power after his 2020 election loss, maneuvered to provide federal prosecutors only what he had to.This winter, after receiving a subpoena from a grand jury investigating former President Donald J. Trump’s attempts to overturn the 2020 election, Mark Meadows commenced a delicate dance with federal prosecutors.He had no choice but to show up and, eventually, to testify. Yet Mr. Meadows — Mr. Trump’s final White House chief of staff — initially declined to answer certain questions, sticking to his former boss’s position that they were shielded by executive privilege.But when prosecutors working for the special counsel, Jack Smith, challenged Mr. Trump’s executive privilege claims before a judge, Mr. Meadows pivoted. Even though he risked enraging Mr. Trump, he decided to trust Mr. Smith’s team, according to a person familiar with the matter. Mr. Meadows quietly arranged to talk with them not only about the steps the former president took to stay in office, but also about his handling of classified documents after he left.The episode illustrated the wary steps Mr. Meadows took to navigate legal and political peril as prosecutors in Washington and Georgia closed in on Mr. Trump, seeking to avoid being charged himself while also sidestepping the career risks of being seen as cooperating with what his Republican allies had cast as partisan persecution of the former president.His high-wire legal act hit a new challenge this month. While Mr. Meadows’s strategy of targeted assistance to federal prosecutors and sphinxlike public silence largely kept him out of the 45-page election interference indictment that Mr. Smith filed against Mr. Trump in Washington, it did not help him avoid similar charges in Fulton County, Ga. Mr. Meadows was named last week as one of Mr. Trump’s co-conspirators in a sprawling racketeering indictment filed by the local district attorney in Georgia.Interviews and a review of the cases show how Mr. Meadows’s tactics reflected to some degree his tendency to avoid conflict and leave different people believing that he agreed with them. They were also dictated by his unique position in Mr. Trump’s world and the legal jeopardy this presented.Mr. Meadows was Mr. Trump’s top aide in his chaotic last months in the White House and a firsthand witness not only to the president’s sprawling efforts to overturn the 2020 election, but also to some early strands of what evolved into an inquiry into Mr. Trump’s mishandling of classified documents.Mr. Meadows was there, at times, when Mr. Trump listened to entreaties from outside allies that he use the apparatus of the government to seize voting machines and re-run the election. And he was on the phone when Mr. Trump tried to pressure Georgia’s secretary of state to find him sufficient votes to win that state.He was also there on Jan. 6, 2021, as Mr. Trump sat in a small room off the Oval Office, watching television as a mob of his supporters tried to thwart the peaceful transfer of power.The House committee investigating the Capitol riot showed clips of Mr. Trump and Mr. Meadows during a hearing last year.Doug Mills/The New York TimesMr. Meadows, who declined to comment for this article, has refused to discuss his involvement in any of the criminal cases. The full extent of what he shared with federal prosecutors remains closely held, as are the terms under which he spoke to them. But his approach to dealing with them could not have been more different from Mr. Trump’s.Where the former president repeatedly ranted about witch hunts and the weaponization of the justice system, Mr. Meadows went quiet, staying off TV and refusing to call his former boss. Mr. Trump lashed out at the investigators on his tail, attacking them at every turn, but Mr. Meadows sought to build relationships when and where he could.All of this has made Mr. Meadows a figure of intense speculation and anxiety in the former president’s inner circle. The feverish conjecturing among Mr. Trump’s allies was reignited this weekend, when ABC News revealed some of the first details of what Mr. Meadows told federal prosecutors.ABC reported that Mr. Meadows — like other senior Trump officials, including Mike Pence, the former vice president — had undercut Mr. Trump’s claim that he had a “standing order” to automatically declassify any documents that were taken out of the Oval Office. Those included ones that ended up at his private clubs in Florida and New Jersey.Mr. Meadows’s discussions with investigators did not surprise some on the Trump team. For months, Mr. Trump, his advisers and his allies had been deeply suspicious of Mr. Meadows. But having recently received discovery material from Mr. Smith’s team — evidence the prosecutors gathered during the inquiry — the Trump team now has visibility into what Mr. Meadows told investigators, according to people familiar with the matter.“This witch hunt is nothing more than a desperate attempt to interfere in the 2024 election as President Trump dominates the polls and is the only person who will take back the White House,” said Steven Cheung, a spokesman for Mr. Trump.Mr. Meadows’s lawyer, George J. Terwilliger III, declined to comment on the facts laid out in the ABC story.The plan by Mr. Meadows to be quietly cooperative with prosecutors without agreeing to a formal deal was hardly a novel strategy. It is what many subjects of investigations do when they are facing exposure to serious criminal charges. But in this case, the stakes are especially high for both Mr. Meadows and Mr. Trump.Mr. Meadows’s goal was to give investigators the information they requested when he believed he was legally obliged to provide it. But he also used the law to push back when he considered the requests to be inappropriate or potentially dangerous to his own interests, the person familiar with his legal game plan said.The strategy began playing out almost two years ago, when Mr. Meadows agreed to provide some documents to the House committee investigating the Jan. 6 attack but fought its attempt to take his deposition.Mr. Meadows’s goal was to give investigators the information they requested when he believed he was legally obliged to provide it. Doug Mills/The New York TimesIn one instance, when Mr. Meadows was subpoenaed by the House committee for documents and testimony, he provided them with an explosive trove of text messages from the period leading up to Jan. 6. The messages showed Mr. Meadows communicating with everyone from Fox News hosts to Virginia Thomas, the wife of Justice Clarence Thomas. They were embarrassing to both him and Mr. Trump.But Mr. Terwilliger determined that since the messages were not related to Mr. Meadows’s communications with the president, they were not protected by executive privilege.The texts were an invaluable resource to the committee staff and provided investigators with a road map to the players and actions taken as they were beginning their work. The decision to provide them to the House panel infuriated Mr. Trump’s team. But they also bought breathing space for Mr. Meadows.Mr. Terwilliger took a different position on Mr. Meadows testifying to the committee. At first, he told the panel’s staff that they could not legally compel Mr. Meadows to do so and that even if they did manage to get him on the record, he would assert executive privilege over anything related to his dealings with Mr. Trump. The negotiations over the interview broke down when the committee subpoenaed Mr. Meadows’s phone records without first informing him.There was, however, another reason Mr. Terwilliger was concerned about having Mr. Meadows tell his story to the House committee, according to the person familiar with Mr. Meadows’s legal plan.Even in early 2022, the person said, Mr. Terwilliger suspected that Mr. Meadows would be called upon to tell the Justice Department what he knew about Jan. 6 and the weeks leading up to it. And he did not want Mr. Meadows to already be on the record in what he viewed as a politicized investigation. If Mr. Meadows was going to tell his story, the person said, Mr. Terwilliger wanted him to do so for the first time to investigators from the Justice Department.It was then that the panel recommended Mr. Meadows be charged with contempt of Congress, a position that the full House ultimately agreed with. The Justice Department, however, citing the “individual facts and circumstances” of his case, declined to press charges.While department officials never fully explained their reasons for not going after Mr. Meadows, the move was in contrast to the way they handled similar cases involving two other former Trump aides, Stephen K. Bannon and Peter Navarro. Both were charged by the department with contempt of Congress after they refused to deal with the committee altogether.Mr. Meadows took a similar course when he was subpoenaed this winter by the federal grand jury in Washington investigating Mr. Trump’s attempts to overturn the election. The former president had maintained that his aides should not testify to any matters covered by executive privilege.When Mr. Meadows first appeared before the grand jury, he gave only limited testimony, declining to answer any questions he believed were protected by executive privilege, which shields some communications between the president and members of his administration.But he was obliged to open up to prosecutors after they asked the chief judge in Washington at the time, Beryl A. Howell, to rule on the question of executive privilege in an effort to compel his full account.By that point, the person familiar with the legal strategy said, Mr. Meadows — unlike Mr. Trump — had come to the conclusion that the top prosecutors in the special counsel’s office were engaged in a good-faith effort to collect and analyze the facts of the case. Trusting in the process, the person said, Mr. Meadows would seek to position himself as a neutral witness — one who was neither pro- nor anti-Trump.“George believes witnesses are not owned by anybody,” said a second person who has worked closely with Mr. Terwilliger. “They’re not there for a person; they’re not there against any person; they’re not on one person’s side. They’re there to tell the truth.”Typically, when people have such conversations with prosecutors, they receive limited immunity that prevents their own words from being used against them in a future prosecution. But investigators can use the information they provide to pursue charges against others.Ultimately, Judge Howell issued an order forcing Mr. Meadows to go back to the grand jury. He answered questions for a second time, giving an unvarnished, privilege-free account.The federal indictment against Mr. Trump contains a mix of accounts about Mr. Meadows’s behavior, some favorable to him. He is mentioned as enabling the false elector scheme to move forward by emailing campaign staff members to say, “We just need to have someone coordinating the electors for states.”But federal prosecutors also noted in the indictment that Mr. Meadows, after observing Georgia’s signature verification process, told the former president that election officials were “conducting themselves in an exemplary fashion.” He also pushed for Mr. Trump to tell rioters to leave the Capitol on Jan. 6.By contrast, Mr. Meadows fought efforts to compel him to testify in the separate case in Georgia examining Mr. Trump’s attempts to remain in office after his election loss. He also invoked his right to avoid self-incrimination when he eventually appeared before the grand jury.The indictment that resulted from the Georgia investigation lays much blame at Mr. Meadows’s feet. It portrays him as acting as a willing accomplice in the effort to overturn the 2020 election, meeting with state-level officials, soliciting phone numbers for Mr. Trump and ordering up memos for strategies to keep him in power.Mr. Meadows quietly arranged to talk with Jack Smith’s team about the former president.Anna Moneymaker for The New York TimesProsecutors in Georgia also accused Mr. Meadows of a felony over his role in an infamous phone call on Jan. 2, 2021, in which Mr. Trump pushed the Georgia secretary of state to “find 11,780 votes.”In a sign that he views the federal venue as more favorable terrain, Mr. Meadows has asked for the Georgia charges against him to move to federal court. In court papers filed last week, Mr. Terwilliger said he intended to challenge the case by arguing that Mr. Meadows was immune to prosecution on state charges for any actions he undertook as part of his federal job as White House chief of staff.Mr. Meadows, who now lives in South Carolina, remains an influential back-room figure in conservative circles in Washington. He is a senior partner at the Conservative Partnership Institute, where he is paid about $560,000 annually, according to the organization’s most recent financial report.In July 2021, a few weeks after the House voted to create the Jan. 6 committee, the political action committee aligned with Mr. Trump, Save America, donated $1 million to the institute. More