INDICTED (INDICATED) #3 USA v Donald Trump - Judge Tanya Chutkan - #J6 Election Interference, Fake Electors - Jack Smith

[Foggy]

I trust Christie as much as any other Republican.

[Ben-Prime]

I trust Christie as much as any other Republican.

By mathematical logic, you should probably trust him less. Isn't that the way it goes? A man who always lies is easier to trust than a man who sometimes tells the truth since you know the first guy is always lying and can count on him never doing what he says he will. But a guy who sometimes tells the truth, you can't determine when he is and when he's lying.

[chancery]

https://twitter.com/joshgerstein/status ... 796880979

Josh Gerstein
@joshgerstein
JUST IN: Special counsel's office says Trump lawyers misled them about Trump's position on televising DC election subversion trial. Doc: https://storage.courtlistener.com/recap ... 20.0_1.pdf

From the government's brief filed today (link above).

On November 3, 2023, the United States filed an opposition to applications of a coalition
of media organizations seeking to record and broadcast the criminal trial of Donald J. Trump (“the defendant”). ECF No. 16. In advance of that filing, the Government sought the defendant’s position on the applications, and his counsel requested that the Government represent to the Court that he took no position. The Government accurately reported that to the Court. Id. at n.2. On November 10, however, the defendant reversed course and filed a response in support of the applications. ECF No. 19. The defendant’s response did not engage with the relevant Federal Rule of Criminal Procedure or cite any applicable caselaw, and instead made false and incendiary claims about the administration of his criminal case, United States v. Trump, No. 23-cr-257 (TSC). The Government requests an opportunity to respond to the defendant’s claims and is prepared to file its proposed reply, which is four pages, immediately upon receiving leave from the Court.

The Government sought the positions of the applicants and the defendant on this motion for leave to file. The defendant objects.

Shaking my head. Sometimes it's necessary and appropriate to contest almost every issue, and frequently when that happens there's not much love lost between counsel for the two sides.

And occasionally, I'm sure it happens that counsel changes her mind after authorizing opposing counsel to represent to the court that her client party take no position as to an issue. It could be motivated by something unexpected in an opponent's brief, or just by a brain fart on the part of the client. So you go ahead and file something.

What you don't do is make a seeming liar out of your opposite number; you acknowledge that the prior representation was true and state that you've changed your mind, with an explanation if it's helpful, without one if it's not.

I can understand that Trump's lawyers obeyed Trump's demand that they file this bloviating pile. It's ultimately their job as lawyers. But they should have insisted on acknowledging the prior representation made on their behalf to Court. And opposing the government's motion to respond to Trump's change of position doubles down on the bad behavior.

It's not ethical, and in effect it's a factual misrepresentation to the court, which is a very bad thing for a lawyer to do. It's not there yet, but it approaches the kind of situation where a lawyer fails to resign at his peril.

[p0rtia]

The comedy stylings of Lauro and Blanche: Their motion in favor of cameras in the courtroom, as discussed by Jack Smith above.

A doozie, this is.

https://www.documentcloud.org/documents ... vflg111023

Before the Court are two motions by media outlets requesting audio and visual recording as well as broadcasting of the potential trial and other proceedings in this matter. One motion is by a combined Media Coalition (No. 1:23-mc-99-TSC, Doc. 1) and the other by NBC Universal Media, LLC (No. 1:23-mc-107-TSC, Doc. 1) (together, the “Motions”).1 For the first time in American history, an incumbent administration has charged its main, leading electoral opponent with a criminal offense. Aware that its charges are meritless, the prosecution has sought to proceed in secret, forcing the nation and the world to rely on biased, secondhand accounts coming from the Biden Administration and its media allies. As a result, the citizens of our great country are unable to review for themselves what the facts of this case show, and how unfairly President Trump is being treated at the hands of his political opponent. As President Trump has made clear from the outset, the prosecution has repeatedly denied him his fundamental constitutional rights, including the right to prepare for trial and to present a fulsome...

1 Per the Court’s instructions, this response is filed in Case No. 1:23-mc-99-TSC, but should be construed as a response to both Motions or any additional motions on the topic of audio and visual access to the trial.

...defense. The prosecution wishes to continue this travesty in darkness. President Trump calls for sunlight. Every person in America, and beyond, should have the opportunity to study this case firsthand and watch as, if there is a trial, President Trump exonerates himself of these baseless and politically motivated charges. The Court should grant the Motions without delay. DISCUSSION At every turn, the Court has, at the prosecution’s urging, denied President Trump his inalienable rights, including, without limitation, the rights to: a fair trial in a politically diverse venue, due process, a judge without the appearance of bias or prejudgment, prepare for trial, and the right to speak freely and publicly about this case in the face of the prosecution’s egregious lies. The prosecution, betraying its solemn obligation to ensure that “justice shall be done,” Berger v. United States, 295 U.S. 78, 88 (1935), has sought these inexcusable constitutional violations as part of a coordinated effort to undermine President Trump’s candidacy as he faces, and leads, President Biden in the 2024 Presidential Election. Despite systemic prosecutorial misconduct, this Court has not acted to either ensure or protect President Trump’s constitutional rights. There is a high risk that proceeding behind closed doors under these circumstances would serve to further undermine confidence in the United States justice system, while continuing to prejudice President Trump’s rights. For good reason, political trials “have virtually no defenders; they are reviled as a corruption of the judicial process and a betrayal of liberal principles.” Eric A. Posner, Political Trials in Domestic and International Law, 55 DUKE L.J. 75, 78 (2005); id. at 105 (“[A]lthough the ability to target political opponents using low process may help the government maintain its power, this advantage may not compensate for the loss of public confidence.”). Indeed, “‘show trials’ tell more about the power of the state than about its concern for the decent administration of justice—with every citizen receiving the same kind of justice.”

Etc. The citations are...creative.

[chancery]

At the risk of big-footing p0rtia's interesting post just above, some further thoughts about the behavior of Trump's lawyers.

I allowed myself a several-second fantasy of Judge Chutkan issuing an order to show cause why Trump's lawyers (some of whom are appearing pro hac vice and thus are more vulnerable to being put out with the rest of the trash) should not be subject to sanctions for not requesting leave to be excused from their prior representation (via opposing counsel) either by agreement with the government or by permission of the court. I also wondered whether the fantasy should include an order withdrawing Tump's TV coverage brief from the court pending further order of the court following resolution of the order to show cause.

Note that it's unlikely that a good and savvy judge like Chutkan would issue a sanction more serious that a caution or a reprimand here.

The fantasy faded quickly, due, among other reasons, to the simple fact that the behavior of Trump's lawyers, while shocking, is of very small importance. The issue of TV coverage is a collateral matter; the government has already filed a brief concerning the relevant considerations; the government will likely be given a chance to say what they think of Trump's irrelevant and offensive filing (and it wouldn't matter if they lacked that opportunity, because the judge hardly needs the government's help with respect to Trump's brief; the likelihood that Judge Chutkan would buck the rule against televising federal trials is very small; and the judge's plate is already fill to overflowing with issues such as the immunity defense that are challenging, crucial, and urgent.

Plus, having this bumptious brief from Trump in the record will be useful going forward, because it demonstrates his fixed intention to disrupt the trial with improper behavior, and will help support a later order putting a bridal bridle on his behavior.

However, I think it's at least possible, although not very likely, that Chutkan might write a sentence or two reminding counsel of the importance of complete candor in their representations to the court, particularly when they make them by authorizing opposing counsel to communicate them.

Edit, typo.

[Rolodex]

I was a big proponent of televising/streaming the trial(s), but I've changed my mind on that. I do think they should record them, and then after the verdict(s) are in, release the footage. The transcripts could be available as it goes along, but when doodoo head talks, it always look ridiculous in transcript form. Nothing would be "hidden" and we could keep up in real time without the participants playing for the camera (in real time).

[p0rtia]

Agree with Rolodex about making the transcripts available immediately to the public. JHK, it infuriates me how long it takes to get transcripts from some federal courts.

[p0rtia]

At the risk of big-footing p0rtia's interesting post just above, some further thoughts about the behavior of Trump's lawyers.

I allowed myself a several-second fantasy of Judge Chutkan issuing an order to show cause why Trump's lawyers (some of whom are appearing pro hac vice and thus are more vulnerable to being put out with the rest of the trash) should not be subject to sanctions for not requesting leave to be excused from their prior representation (via opposing counsel) either by agreement with the government or by permission of the court. I also wondered whether the fantasy should include an order withdrawing Tump's TV coverage brief from the court pending further order of the court following resolution of the order to show cause.

Note that it's unlikely that a good and savvy judge like Chutkan would issue a sanction more serious that a caution or a reprimand here.

The fantasy faded quickly, due, among other reasons, to the simple fact that the behavior of Trump's lawyers, while shocking, is of very small importance. The issue of TV coverage is a collateral matter; the government has already filed a brief concerning the relevant considerations; the government will likely be given a chance to say what they think of Trump's irrelevant and offensive filing (and it wouldn't matter if they lacked that opportunity, because the judge hardly needs the government's help with respect to Trump's brief; the likelihood that Judge Chutkan would buck the rule against televising federal trials is very small; and the judge's plate is already fill to overflowing with issues such as the immunity defense that are challenging, crucial, and urgent.

Plus, having this bumptious brief from Trump in the record will be useful going forward, because it demonstrates his fixed intention to disrupt the trial with improper behavior, and will help support a later order putting a bridal on his behavior.

However, I think it's at least possible, although not very likely, that Chutkan might write a sentence or two reminding counsel of the importance of complete candor in their representations to the court, particularly when they make them by authorizing opposing counsel to communicate them.

I like your daydream. In my dream, Judge Chutkan reams them out in a couple of sentences that make it clear she is aware that this vile brief is aimed at TFG's fans; a foundational document* to prove* that that TFG is being silenced by Team Biden.

In my other dream, Jack Smith reverses himself and agrees that the trial should be televised. Which is exactly what TFG does not want, IMO.

[Slim Cognito]

My dream is, on the way into court, trump trips on the steps, breaking his veneers while his dead ferret flies off his head and lands in a muddy puddle* in full view of international camera teams. Your dreams may begin after that.

*only because a pile of dog doo is unlikely to be available.

[Kriselda Gray]

My dream is, on the way into court, trump trips on the steps, breaking his veneers while his dead ferret flies off his head and lands in a muddy puddle* in full view of international camera teams. Your dreams may begin after that.

*only because a pile of dog doo is unlikely to be available.

Can he break his neck, too? NADT

[realist]

Agree with Rolodex about making the transcripts available immediately to the public. JHK, it infuriates me how long it takes to get transcripts from some federal courts.

It's not like they just magically get produced.

Plus, under normal circumstances and rules, there is zero requirement they be produced in real time or even daily. Generally in federal court certain transcripts are required within 30 days and to be made available to the public in 90 days.

There can be exceptions made, special requests made, but those are exceptions, not the rule.

[chancery]

MINUTE ORDER: GRANTING the United States' 20 Motion for Leave to File Reply in Opposition to Defendant Donald J. Trump's Response to Applications to Broadcast the Criminal Trial of United States v. Trump. "The district court routinely grants such motions when a party is unable to contest matters presented to the court for the first time in the last scheduled pleading." Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (internal quotations omitted). Defendant's 19 Response presented arguments in support of broadcasting the trial in United States v. Trump the United States would not otherwise be able to contest and reflected a reversal of the Defendant's position earlier conveyed to the United States. See ECF No. 16 at 6 n.2. The United States is directed to file a Reply of no more than 5 pages by November 14, 2023. Signed by Judge Tanya S. Chutkan on 11/13/2023.

The government's brief replying to Trump's TV brief: https://storage.courtlistener.com/recap ... 21.0_6.pdf

It's short and I think even people who advocate for TV coverage will find the arguments strong. You should read the whole thing, but here are some highlights, footnotes and footnote calls omitted.*

The defendant’s response does not cite a single rule or case in support of his position, because there are none. Instead, decrying the alleged unfairness of the unequivocal and constitutionally-sound broadcast prohibition that has governed federal criminal trials—no matter the defendant—for decades, the defendant’s response is a transparent effort to demand special treatment, try his case in the courtroom of public opinion, and turn his trial into a media event. The Court should reject this attempted distraction and deny the applications.

Although the defendant pays lip service to proceedings where “every citizen receiv[es] the same kind of justice,” ECF No. 19 (quoting Chandler v. Florida, 449 U.S. 560, 580 (1981)), he once again demands special treatment. But the defendant offers no legal argument or case law to support his demand that trial in this case be conducted unlike that for every other federal criminal defendant. His purported interest in “sunlight” (ECF No. 19 at 2, 4) does not cure that defect. Indeed, the defendant ignores that high-profile federal criminal trials have long proceeded in accordance with the broadcast prohibition under the rules—and that they have garnered significant and detailed media coverage of courtroom proceedings nonetheless.

The defendant peppers his response with various references to “fairness,” but what he actually seeks is to defy a uniform and longstanding broadcast prohibition that was crafted precisely with fair and orderly trial proceedings in mind. He desires instead to create a carnival atmosphere from which he hopes to profit by distracting, like many fraud defendants try to do, from the charges against him. This scenario is not hypothetical. As the Court has already observed in proceedings in the defendant’s criminal trial, the defendant and his counsel will, if permitted, design their in-court statements instead to wage a public relations campaign. And in the defendant’s New York state civil fraud trial, the defendant recently used his testimony to condemn the case as a “political witch hunt,” prompting the judge to admonish that “[t]his is not a political rally . . ..” The Court should not grant the applications in plain contravention of Rule 53 and further motivate the defendant and his counsel to make improper statements inside the courtroom to provoke a public reaction outside of it.

Although the defendant proclaims that his goal is for the American public to watch the proceedings in this case (ECF No. 19 at 2, 5), he has consistently made clear his desire to delay the trial in this case or to ensure that one does not happen at all. See, e.g., No. 23-cr-257, ECF No. 142 at 2-3 (listing defendant’s efforts to delay trial in his criminal case). If the defendant sought sunlight as he claims, he should welcome the opportunity to put the Government to its proof at trial. Instead, his response to the applications shows that he will continue to attempt to avoid answering for his criminal conduct in the courtroom while at the same time publicly grandstanding on the Court’s docket.

The Court should decline the defendant’s “demand” (ECF No. 19 at 5) that he be placed beyond the rules and above the law. And it should avoid the spectacle—and attendant risks of witness intimidation—that the longstanding rules against courtroom broadcasting are designed to avoid. For all the reasons stated here and in the Government’s opposition, ECF No. 16, the applications should be denied.

Note that these filings are in a separate docket before Judge Chutkan in the District of D.C.: MEDIA APPLICATION FOR AUDIOVISUAL ACCESS TO TRIAL PROCEEDINGS IN UNITED STATES OF AMERICA V. DONALD J. TRUMP (1:23-mc-00099)

https://www.courtlistener.com/docket/67 ... er_by=desc

_______
* If you're really interested in the issue, you should read the government's previous brief as well: https://storage.courtlistener.com/recap ... 2.16.0.pdf

[Chilidog]

Plus, having this bumptious brief from Trump in the record will be useful going forward, because it demonstrates his fixed intention to disrupt the trial with improper behavior, and will help support a later order putting a bridal on his behavior.

Is Melamine aware of this possibility?

Does she care?

[Kendra]

My dream is, on the way into court, trump trips on the steps, breaking his veneers while his dead ferret flies off his head and lands in a muddy puddle* in full view of international camera teams. Your dreams may begin after that.

*only because a pile of dog doo is unlikely to be available.

You forgot the toilet paper stuck in his shoes

[chancery]

Plus, having this bumptious brief from Trump in the record will be useful going forward, because it demonstrates his fixed intention to disrupt the trial with improper behavior, and will help support a later order putting a bridal on his behavior.

Is Melamine aware of this possibility?

Does she care?

Thanks, I fixed it.

[Volkonski]

‘Without regard to numbers, wealth or rank’: Special counsel rails against Trump ‘scattershot’ First Amendment claims as demand for ‘special exception’

https://lawandcrime.com/high-profile/wi ... exception/

As an appellate fight swiftly approaches in Washington, D.C., weighing whether a narrow gag order imposed on Donald Trump in his election subversion case should remain in place, special counsel Jack Smith lobbed his opening volley Tuesday, urging the court to squarely reject the former president’s “scattershot” invocations of the First Amendment and enforce a gag order that will protect proceedings much like the lower courts have done in other high profile cases, including the indictment of Trump ally Roger Stone.

“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutors and his family and after threatening witnesses, ‘IF YOU COME AFTER ME, I’M COMING AFTER YOU,’ target specific witnesses with attacks on their character and credibility, calling one ‘weakling’ and ‘coward’ and suggesting that another’s actions warrant the ‘punishment’ of ‘DEATH!'” Smith wrote Tuesday in a 67-page brief for the appellate court in Washington, D.C., quoting just a sampling of Trump’s remarks on social media or in the press since his indictment for conspiring to overturn the results of the 2020 election was first announced in August.

The gag order prosecutors want reimposed was temporarily stayed by the appeals court on Nov. 3. It was set by U.S. District Judge Tanya Chutkan on Oct. 16 after special counsel convinced her it was necessary given Trump’s habitual public lashing out.

Chutkan herself, prosecutors reminded the appeals court Tuesday, had received an extremely troublesome death threat from Trump supporter Abigail Jo Shry of Texas after Trump had railed against the judge and charges.

Shry called the Black judge a “n—– slave” who would be killed if Trump wasn’t reelected in 2024.

“That episode was part of a pattern, stretching back years, in which people publicly targeted by the defendant are, as a result of the targeting, subject to harassment, threats, and intimidation,” Smith wrote.

In that vein, special counsel highlighted remarks from billionaire Trump supporter Anthony Pratt, who explained the slippery method the former president deploys. In a 60 Minutes Australia piece aired only weeks ago, Pratt said of Trump:

“He knows exactly what to say and what not to say so that he avoids jail but he gets so close to it that he looks to everyone like he’s breaking the law,” Pratt said. “Like he won’t go up to someone and say, ‘I want you to kill someone.’ He’ll say, he’ll send someone, to tell someone, to kill someone.”

[bob]

Various states' AGs file an amicus brief opposing the gag order:

[Dave from down under]

Hopefully their (partisan political) views will be given the consideration they are worth.

[Rolodex]

I couldn't figure out who Treg Taylor was, so I looked him up. AG of Alaska, not Alabama. The usual suspects.

[raison de arizona]

The brief: https://storage.courtlistener.com/recap ... 44.0_5.pdf

[p0rtia]

"overly broad".

[Volkonski]

Brandi Buchman
@Brandi_Buchman@mstdn.social
NOW: Judge Chutkan has DENIED Trump's motion to strike what he dubbed "inflammatory allegations" in his Jan. 6 indictment for criminal conspiracy to overturn the 2020 election.

https://www.documentcloud.org/documents ... llegations

[Rolodex]

Brandi Buchman
@Brandi_Buchman@mstdn.social
NOW: Judge Chutkan has DENIED Trump's motion to strike what he dubbed "inflammatory allegations" in his Jan. 6 indictment for criminal conspiracy to overturn the 2020 election.

https://www.documentcloud.org/documents ... llegations

I was going to bring over some quotes from that court document, but the whole thing is short ... and is a thing of duty. IANAL but it makes it sound like the filing from trump was written by someone who never saw a trial before. Def worth the read!

[p0rtia]

Listening to the DC (not a) gag order hearing. Awesome. Fuckhead's attorney Sauer is being dragged over the coals. He is resisting answering simple hypotheticals like they poison.

https://www.youtube.com/live/ngUhSD35Do ... 8Y96JIymsR

https://x.com/Brandi_Buchman/status/1726609362633048107?

[p0rtia]

Hearing over. 2 h 20 min. Sauer (for fuckhead) was offered 4 min for rebuttal, but did not take it.

An hour and a half of that (at least) was Sauer. His refusal to answer the questions asked was so typical of fuckhead's lawyers. At least he knew what he was talking about, but the judges raised their voices several times to get him to stay on track (he constantly answered simple hypotheticals by saying things like "We never suggested that this was the case.") Toward the end, he seemed to get a clue, and address the hypotheticals. Anyway, in sum, he didn't want to admit that anything fuckhead might say in any venue would be verboten. But they did drag out of him that while a post quoting fuckhead as saying "If you come after me, I'm coming after you" was protected, the same post with a picture of the judge or one of the witnesses in the corner was probably not. His position was not surprising--what was notable was how badly he stated it. That and his position that there could be no gag order until a threat of third party violence to a witness had been made. Which, as the court pointed out repeatedly, was not the question, since they were talking about a prophylactic order (he never would admit that such orders were allowed).

The DOJ attorney, OTOH, had no problem stating his position and engaging directly with the judges. They nailed him on where/how to draw the line between what language is allowed when discussing public figures, and what isn't. By the end it was pretty clear that they were not going to allow any curtailment of language directed at public figures. That said, the DOJ attorney argued valiantly that any inflamatory language, or even calling a DOJ attorney a liar, affected not only the person targeted, but other witnesses, because, chilling effect.

The judges were awesome. I think they will uphold a lot of the (not a) gag order, but not all of it.