On January 19, 2022, SCOTUS Upheld Judge Tanya Chutkan’s Decision Rejecting Trump’s Executive Privilege Claims

On November 9, 2021, Judge Tanya Chutkan — the judge who randomly got assigned to Trump’s January 6 prosecution — rejected Trump’s request to enjoin the Archives from turning over documents to the January 6 Committee.

Chutkan held that because the incumbent President had waived Executive Privilege and the January 6 Committee had a legislative interest in preventing another attack on the peaceful transfer of power, she had no reason to second guess the political branches of government about the import of the investigation.

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining— the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

On December 9, 2021, the DC Circuit upheld Chutkan’s ruling. Patricia Millett repeated Chutkan’s argument that the agreement of Congress and the Executive provided no basis for the courts to intervene. But she also described that even by a heightened standard — even if Trump were withholding these documents while still President — the need for the documents would overcome his privilege claim.

While former President Trump can press an executive privilege claim, the privilege is a qualified one, as he agrees. See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even a claim of executive privilege by a sitting President can be overcome by a sufficient showing of need. See United States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a former President certainly enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S. at 454; see United States v. Nixon, 418 U.S. at 706, 713. 12

In this case, President Biden, as the head of the Executive Branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees. So the tests that courts have historically used to police document disputes between the Political Branches seem a poor fit when the Executive and Congress together have already determined that the “demonstrated and specific” need for disclosure that former President Trump would require, Appellant Opening Br. 35, has been met. A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.

But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege. Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.


Keep in mind that the “presumptive privilege” for presidential communications “must be considered in light of our historic commitment to the rule of law.” United States v. Nixon, 418 U.S. at 708. In United States v. Nixon, the particular component of the rule of law that overcame a sitting President’s assertion of executive privilege was the “right to every [person]’s evidence” in a criminal proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). Allowing executive privilege to prevail over that principle would have “gravely impair[ed] the basic function of the courts.” Id. at 712.

An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would “gravely impair the basic function of the” legislature. United States v. Nixon, 418 U.S. at 712.

On January 19, 2022, the Supreme Court upheld Chutkan’s ruling. With only Clarence Thomas dissenting, Justice Kavanaugh noted that the DC Circuit’s ruling that Trump’s appeal would have failed even under more stringent standards made any review of this decision unnecessary.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

I have written repeatedly about how Merrick Garland set up a framework in July 2021 by which Congress’ investigative requests would provide an opportunity for President Biden to waive Executive Privilege without violating DOJ’s contacts policy. That is, in July 2021, Garland solved a tricky problem with investigating the former President: how to obtain privilege waivers while keeping the existing President entirely walled off from the criminal investigation.

But this legal background, in which, with just one dissent, SCOTUS upheld a Tanya Chutkan opinion pertaining to an investigation into Donald Trump, will prove critically important in the days ahead, for two reasons that go to the screeds the former President is engaging in on his failed social media platform.

Along with making a venue complaint that has failed the dozens of times other January 6 defendants have made it (here’s a Roger Parloff post from before the Riley Williams and Oath Keepers trials showed that juries will rule against the government on precisely the same charges), Trump is preparing to claim that Judge Chutkan is biased and must be recused.

And Trump has been claiming that DOJ could have brought this case years ago, before the election season.

As to the first point, on a topic directly pertinent to this investigation, eight Justices have already upheld Judge Chutkan. Three Trump appointees, with Justice Kavanaugh writing the decision, have already ruled with Judge Chutkan.

That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

More importantly, that Judge Chutkan decision in November 2021 led to a SCOTUS decision, on January 19, 2022, upholding the DC Circuit’s opinion that the peaceful transfer of power is a sufficiently important basis to overcome an Executive Privilege claim, even if only for a congressional investigation, which litigation in the stolen documents case noted was a significantly lower standard than a criminal investigation.

Yet, even in spite of that decision on January 19, 2022, Donald Trump continued to make Executive Privilege claims that delayed DOJ’s investigation. He did so to stall DOJ’s interviews with Mike Pence’s advisors in summer 2022. He did so to stall DOJ’s interviews of Trump’s White House Counsel later that summer. He did so to stall DOJ’s interviews with other top aides in January 2023. And he did so to stall Mike Pence’s testimony.

Donald Trump continued to stall DOJ’s investigation using Executive Privilege claims for 463 days after a Justice that he himself had appointed had already rejected such claims. At the very least, these frivolous Executive Privilege invocations were critically responsible for any delay from July 2022, when Greg Jacob and Marc Short first refused to answer some questions because of Trump’s privilege claims, until April 2023, when Mike Pence testified — nine months.

Nine months, Trump kept making Executive Privilege claims that it was clear SCOTUS wouldn’t uphold.

Indeed, Trump’s frivolous Executive Privilege claims are responsible for even more of any delay than his own Special Master demand in the stolen documents investigation caused — in that case, three months.

Donald Trump is complaining that he wasn’t charged for his attempt to overthrow the peaceful transfer of power in 2020 until during his campaign to regain the presidency.

But he is personally responsible for much of that delay.

116 replies
  1. Thomas_H says:

    Gee! It’s almost as if Mr. Trump has used delaying tactics to push any trial for his alleged misdeeds into, or even beyond, the 2024 election season… Speculation on my part would be aspirational. /s.

    DOJ: adhere to the rule law, of necessity, a methodical process.

    Mr. Trump: Skirt the rule of law and exploit it to delay, delay…

  2. Buzzkill Stickinthemud says:

    That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

    I guess I’m not seeing how Trump can claim Judge Chutkan is biased or in conflict by presiding over this case. I’m going out on a limb and say Trump’s motion for her recusal (or whatever the legal process is) will be filled with grievances and whining and little else.

    • Wajimsays says:

      Well, we can’t possibly have a black woman judge oversee the trial of a racist white man, can we now. Why, that would clearly be unfair, Prima facie. Seems clear enough to me

      • Peterr says:

        You left “foreigner” off your list, given that she was born in Jamaica. Yes, she’s an American citizen, but in Trump’s eyes, the idea of being judged by an immigrant is not something he can easily deal with.

        • wasD4v1d says:

          I think many gifted leaders ‘from away’ are smart people who worked hard to get here and stay here – which means acquiring more knowledge of American government (civics) than you would get if you were born here.

        • Wajimsays says:

          Didn’t know that. Any place that makes such fine rum and coffee (among a few other things) is all-right with me. And now Federal judges! I assume she knows how to summon the kraken, even if only in the form of SidneyPowell

  3. CaptainCondorcet says:

    15 years ago, during the height of a re-election campaign, Ted Stevens (hardly a bastion of liberal thought) had a markedly different reaction to his indictment. He demanded adherence to a speedy trial and got one within months before the election.

    It is absolutely Trump’s prerogative to NOT seek a speedy trial as it is Smith’s to try for one. The judge will work that out. But once again, Trump isn’t even following an established R playbook. This is a dance all of his own. Which makes it all the more incredible to see all the other politicians cozying up to this nonsense. Though as many current scholars of voter abstention will tell you, they have no choice

    • Datnotdat says:

      Captain C.,
      You’re right Trump can seek to be as dilatory as he likes in re the speed of his trial, but it’s worth recalling that he’s not the only one with standing regarding that rate. American citizenry in aggregate (not only as represented by the DOJ) also is invested in seeing Justice done at an appropriate pace.

      In other words, we can say “move along” without being completely inappropriate.


      • bmaz says:

        No, the US public, as a whole, has no standing whatsoever to raise speedy trial except though Smith/DOJ.

        • Marinela says:

          Regarding the DOJ speedy trial right, legally, why would a prosecutor require a speedy trial?

          Is that so that a defendant cannot put burden on DOJ by dragging a trial for too long?
          The logistics or coordinating and keeping the memories of the witnesses fresh?
          The possibility to get a fair trial is higher under a speedy trial?
          The fair/timely application of the justice?

          Some of these apply or is more complicated?

        • bmaz says:

          “Regarding the DOJ speedy trial right, legally, why would a prosecutor require a speedy trial?”

          Because it is in the country’s interest? Because prosecutors almost alway demand it without waiver or exclusion of time by defendant?

          Because that is the way it ought to be?

        • Scott Rose says:

          A speedy trial shortens the time that witnesses and/or law enforcement are subject to being illegally victimized by the defendant and/or his agents or supporters.

  4. boloboffin says:

    He’s also calling for a federal takeover of the District of Columbia. Which… Lordy.

    But then he argues that this all-caps proclamation will be very unpopular in DC… Which is even more reason he can’t get a fair trial there!!

    Is there a lawyer in existence who can control this client?

  5. Purple Martin says:

    In early 2020, then-President Trump talked about how Covid social distancing could be gone by Easter (then less than a month away), and Mike Pence defended that statement as “aspirational.”

    I suppose Trump’s later 2020 and early 2021 statements about what should happen to Pence could be characterized in the same way, setting an aspirational goal articulated in the chants of Jan 6th seditionists echoing through the Capitol.

    Wonder if that word will come up again in Pence’s court testimony?

  6. Bay State Lurker 23 says:

    He is chutzpah personified, replacing the previous standard of “a man who kills both his parents then pleads leniency from the court because he’s an orphan.”

    • scroogemcduck says:

      Trump now wants a new judge, a new district and to choose the jury. I can’t wait for the judge to start issuing some reality checks.

        • P’villain says:

          Each of them is a bad-faith litigation tactic to serve the twin goals of delay and political advantage. The frustrating part is that these tactics will surely advance both goals, at least for now.

      • timbozone says:

        This is Trump’s intention. That is, he will create the notion in the minds of many of his unquestioning followers that the whole process is unfair and illegitimate, and subject to violent attack therefore should he not get his way. We’ve already seen his use of a broad threat against anyone who could be in Trump’s cross-hairs. Now he is priming the most violent and crazy of his supporters to become his arm of terror. This is similar to what he did in the lead up to the insurrection at the US Capitol on January 6, 2021. The US legal system must hold him accountable for his attempts to subvert the US Constitutional system. Currently it seems to be doing so but he’s definitely pushing limits with regard to threats of violence.

  7. Savage Librarian says:

    Mister Late-to-Show

    Mr. Trump knows how to stall,
    He’s not so good at protocol,
    His lack of skills tend to appall,
    Especially when he starts to bawl.

    In the courtroom he looks small,
    He staggers in, almost a crawl,
    He even looks Neanderthal,
    Now “he ain’t so big, he just tall.”

      • punaise says:

        Mean Mister Trumptard sleeps in the park
        Raves in the dark trying to save face
        Aspirational in the road
        Saving up to pay all he owes*
        Keeps a ten-bob note up his nose
        Such a mean old man
        Such a mean old man

        *ha ha, j/k

    • Ginevra diBenci says:

      Ya know, SL, you just hit on what I think is absolutely key to this: how he looks. Have you noticed how much more orange stuff he’s putting on his face? There’s a desperation to his image management lately, as if he’s terrified that after all this time his cult will find out who he really is.

      Without makeup (generally under a MAGA hat brim, which he seems to think hides him), he more and more resembles a querulous old grandmother.

  8. Magbeth says:

    The worrying thing about all the flack Trump keeps ejecting into the media might spoil the Jury Pool. Not everyone has the time or inclination to follow every nuance of the daily news, but even if only a little of it reaches citizens of D.C., who might be considered for the Jury, i it serves Trump’s purpose to stir things up.

    On the positive side, his constant (un)social media posts may land him with a gag order.

    • -mamake- says:

      I worry about that too (spoiling the pool, but I guess it Depends).

      Seriously though, I also wonder why legitimate media folks don’t make a policy to not elevate the criminals legal representation. I am not a journalist, but they have in the past made this decision re: mass killers, and rape victims (both sides, perp & vic).

      Why can’t there be a policy of not allowing either side to make their case on TV etc given that they are not under oath, or operating under their respective professional oaths…(or maybe they are).

      There is the defense attorney who represents the known mass murderer because said individual has the right to a defence. But they are not on TV touting that man’s ‘right’ to kill freely…unless of course it is a white cop. /s

      Just wondering.

    • timbozone says:

      Doubtful. What he wants to do is create the impression that it would be impossible to try him fairly. There are several reasons for him to do this. But, our system is predicated that Presidents and former Presidents are not goods, they are not monarchs, and they are subject to the same laws and right to a fair trial (and legal punishment upon conviction) as you and I hopefully too would be…if we were that guilty.

      • timbozone says:

        Ugh. When will the edit feature be back here? I specifically typed “gods” and the OS switched it to “goods”?

        [Moderator’s note: 1) Edit feature may be a while; recommend drafting comments in plain text in a Notepad-type app and pasting into comment text field before publishing; 2) may also suggest slowing the fuck down as you typed 703 words across 8 comments inside one hour’s time, and a total of 15 comments inside ~1.5 hours. This is NOT Xitter. /~Rayne]

  9. GrantS01 says:

    Chutzpah had often been described as the child who claims he’s an orphan after killing his parents. Similarly it’s Trump’s audacity to claim late charges due because of his very own mechanations.

  10. David F. Snyder says:

    My wife just told me (News to me) that it is confirmed that Trump will be tried as an adult. Such is what passes as humor in our home.

    • xxbronxx says:

      Hey, striking WGA screenwriter here. Nothing wrong with your wife’s line. Good pitch and funny.

    • TurDuken says:

      I look forward to the day when we can say he has tried on prisons issue adult diapers.

      The great mystery to me is whether or not the orange jumpsuit will make the orange one look like he is without clothing or resemble orangutans in a zoo.

  11. Lisboeta says:

    I can’t help thinking about the personal aspect: there must be judges relieved they didn’t draw the short straw! It’s never an easy job, but far more fraught when the defendant is an ex-president who thinks himself above the law. Having to ensure his compliance, yet scrupulously avoiding any suggestion of being too harsh. Knowing that, whatever one does, there’ll be all-caps rants of “NOT FAIR”, and worse, plus a barrage of abuse from Magats. Needing, maybe for the first time, to ramp up one’s own personal security. And aware that the eyes of the world will be on the trial.

    • Bobby Gladd says:

      Hear hear.

      What if he (effectively) “prevails?” (Irrespective of its likely Cat 5 Clusterfuck characteristics?) President Trumpashenko of BelarUSA, unleashed?

    • timbozone says:

      Hmm? Is Trump really worse than some of sociopaths that Federal and state judges often have to tangle with during trials? From what I can tell, I doubt there would be scrambling to avoid the assignment, no matter how annoyed they might appear to be at such an assignment. Frankly, any Federal judge that would try hard to avoid this case either 1) should, if assigned to his case(s), avoid it due to a positive assertion of potential conflict of interest and/or 2) no longer be on the bench.

  12. WilliamOckham says:

    I’m fascinated by Trump’s use of the word “very” (and, often “very, very”) combined with a “strong” word (“strongly, powerful, seriously, etc.). It’s a signal of desperation and weakness, a need to strengthen the alternate reality he’s creating for his followers by making a claim that is ludicrous. He rarely follows through on the things he “very seriously considers” and the things he “strongly denies” almost always turn out to be true.

    These types of statements should be treated with the contempt and ridicule they deserve. When we don’t, Trump starts to think he can get away with it. For example, starting in early 2021, people kept asking him if he was going to run for President in 2024 and he said (repeatedly) some variation of “he was very seriously considering it”. And, instead of being met by the shock and outrage that the idea deserved, it was taken as a given.

    • Ed Seedhouse says:

      Unfortunately such tactics are effective with a lot of people. I think someone needs to develop effective verbal counter methods, but I don’t see that happening yet.

    • rosalind says:

      i’m still struck by his saying “Seven. Seven” when asked his age in court. That coupled with several observers saying what a weird, slow gait he had as he made his way to his seat.

      • John Paul Jones says:

        Raises a weird possibility that, under the stress of the moment, he forgot, and then, rather than correct himself. He just added another seven.

        And wasn’t their video of him using the same trick a few times when he was president, i.e., he hates to correct himself (that’s weak, for losers), so he just keeps talking and pretends he never made a mistake, eventually spitting out the right data.

        • Baltimark says:

          It could reflect decline or forgetfulness, but neither was my first thought.

          He vests huge faith in the rhetorical power of numbers and psthologically exagerates when using them (often in ways that seem silly; is the fantasy of living on the 68th floor 20ish percent cooler thsn living on the 58th floor?).

          “Seventy,” let alone 77, is septuagenerian; as an age, it connotes fragility and fading power, at least in Trump’s brass balls world. “Seven seven” reluctantly conveys the truth without uttering the “old” signifier. Could be wrong, but this kind of dime store semiotics dovetails nicely with the Tony Robbins/Dale Carnegie schools of self-promotion that Trump wallows in.

      • CPtight617 says:

        I ask people their age all the time for work and have never once heard anyone use that absurd construct to avoid saying his true age out loud. Surprised the magistrate judge allowed it. If he was nineteen, would “1.9.” be OK?

        A couple lawyer friends said they think Chutkan will respond to Trump’s weekend of attacks on her, SC, Pence et al by a scolding followed by turbocharging this trial.

        • bmaz says:

          Was it a stupid reply? Yes. Was it minimally acceptable? Yes. I would not expect for Chutkan to accelerate the situation too fast, but bet she does start moving that direction soon, if carefully.

        • scroogemcduck says:

          bmaz, it’s pretty clear Trump, thug that he is, is going to launch personal attacks on Judge Chutkan and whip his mob up again her, as he did with the “Mexican judge” (his words) Gonzalo Curiel previously.

          Is there anything she can do about that, consistent with 1A?

        • bmaz says:

          Chutken is going to have to do something, because what Trump is doing is insane. Anything she does will be attacked on 1A grounds it appears though. So, I have no idea exactly how it will play out.

        • Rugger_9 says:

          The First Law of Dirtballs applies here and I have zero doubt that Defendant-1 will do his part to get hammered by Judge Chutkan and Judge Upadhyaya.

          I don’t see how a 1A defense will hold water with either judge, nor (depending upon the panel) will it get a fawning reception from the DC Circuit Court.

          The wild card here is what SCOTUS will do, but given they had already upheld Chutkan in a separate issue I can’t see how they’d reverse now.

          Recall that the earlier ruling was over executive privilege which seems more unsettled in law than direct violation of a court order by making threats and tampering with witnesses. Note that the lawyers appear to be OK with this tack given their performance on the Sunday bobblehead shows (leading to speculation that it’s about tainting a jury pool).

        • Curveball says:

          In that same courthouse, Judge Amy Berman Jackson in 2019 went through a progression of leash-shortening with Roger Stone, as he was dangerously savaging her and others on social media. So there’s already a way to play it out. But, of course, this time use of social media is a significant tool for the defendant’s ability to campaign for the presidency. So now this judge has to finesse some throttling without getting herself in a pickle. And Trump will look at any boundary lines she sets as goals for crossing. The judge can squeeze Trump’s lawyers a bit, maybe suggesting they vet every entry he puts on social media. But Trump is going to be Trump. He’s winding himself up ever tighter, and heating up. Something big is likely to happen soon.

        • Codewalker says:

          Nice if she mentions: “Your client has complained this trial should have started two years ago. We’ll remedy that by proceeding with all possible speed, and eliminating any endless delay.”

        • timbozone says:

          Gotta be careful there though. It really depends on what the defense is trying to present as motions in the case and whether or not they are frivolous on their face. Has Trump’s attorneys actually made any statement that the government should have brought this case sooner to a Federal court? If not, then all the whinging and bombast about the government’s “unfair delay in bringing the charges now” is mostly hot-air and an attempt to rile up followers of dangerous bozo-clown Trump.

        • earlofhuntingdon says:

          The prosecution has virtually unfettered discretion about whether and when to indict. SDFL has refused to interfere with the DoJ taking two or three years to do so, concerning much simpler cases.

          Cannon would have to find that the DoJ intentionally abused its discretion so as to specifically interfere with Trump’s campaign. Good luck with that. Even the 11th Cir. would take a hard, uncharitable look at such a finding.

    • Ginevra diBenci says:

      William, I have tracked Trump’s language use for eight years. He increasingly relies on a small stable of qualifiers like “strong” and intensifiers like “very” with an accompanying loss of high-content nouns and verbs, especially in the last few years. Compare his debate performances in 2016 to the 2020 one; even factoring Covid in, the degradation is obvious.

      To me, the moment at the Ellipse when he said his supporters have to “be strong” and “show strength” shows a man struggling with his failing verbal powers. Of course, he also knows his fans don’t expect soaring rhetoric. It’s almost like he’s dialed their expectations down to match his abilities.

      • MsJennyMD says:

        “I went from VERY successful businessman to top TV star to President of the United States (on my first try). I think that would qualify as not smart, but genius … and a very stable genius at that!” Trump 2018

    • OmAli says:

      “I will tell you that President Putin was extremely strong and powerful in his denial today…”

  13. wasD4v1d says:

    I was impressed with the logic of her 2021 conclusion: the Executive and the Legislative are in agreement, so there was no reason for the Judicial to intervene.

  14. greenbird says:

    just to document the time i was here …
    i have links to pages for the Fulton Co Ga Superior Court re Trump v Willis.McB for whenever.
    getting familiar in case of new case from DA Willis.
    and i’m glad for this new post with its 46 comments already … hope all having fun. seems like it !!

  15. Frank Probst says:

    OT: It’s nice to see that Nancy Pelosi hasn’t lost her touch when it comes to triggering Trump.

  16. Sussex Trafalgar says:

    Excellent recap! We also now know in 2023 that Associate Justice Clarence Thomas has a supreme conflict of interest in any investigation of the January 6 Insurrection since his wife, Ginni Thomas, met with Trump more than once at the White House during the 2020 election cycle and also sent numerous text messages to Mark Meadows supporting the Insurrection. She also made several telephone calls to several states demanding that state officials support the Insurrection. Any dummy can ascertain that Associate Justice Thomas was fully aware of his wife’s participation and support of the Insurrection.

  17. hollywood says:

    Hmmm. Just when I started to believe Judge Cannon might chill and run her court in a reasonable fashion….

    • Rugger_9 says:

      It will be interesting to see the upcoming post on this ruling by Judge Cannon.


      It appears that Cannon in her ruling revealed sealed information regarding a grand jury. I’m sure she was told somewhere along the way that she could essentially leak GJ information to be then broadcast to the world in what is (IMHO) blackmail / graymail. I’m willing to be corrected on this, but this is the first indication to me that Cannon did not learn her lesson from the earlier rounds. It also validates SC Smith’s decision to compartmentalize the prosecution. There is probably a GJ in DC for documents (where they were taken) and perhaps in NJ for Bedminster (where it is known some docs were waved around), so Judge Cannon might have been told about those efforts as a courtesy.

      • bmaz says:

        Ahem, the government put that in a pleading. Cannon found it should not be sealed. Maybe Cannon is getting there, but “most” (though not all) of the histrionics as to her her are ill taken so far.

        • sohelpmedog says:

          Replying to Rugger_9 and to Bmaz:
          There were three filings by the Government in connection with the motion for a Garcia hearing. (ECF 95, 96 qnd 97.)
          The motion for a Garcia hearing was #97, which asked for permission to file #’s 95 and 96 under seal. Cannon denied that part of the motion which to file under seal and directed the clerk to strike the sealed entries, #’s 95 and 96. I assume that this means that the sealed filings are not part of the record, but that this doesn’t mean that those filings were unsealed or made public. If that is the case, without seeing the motion (ECF 97) we don’t know if Canon revealed anything that wasn’t in that motion but was in the stricken filings (#’s 95 and 96.) #97 can be accessed by one having a Pacer account. It would be interesting to see that.
          So Bmaz, when you say “the government put that in a pleading” are you saying (because you have a Pacer account and maybe looked at #97) that Canon only referred to what was in the motion. If that’s the case,then Canon is not in this instance, revealing anything that should not be revealed.
          Whether or not Cannon was correct in denying the Government’s motion to file #’s 95 and 96 under seal is another matter. I think it dilutes legitimate criticisms of Canon’s improper / biased rulings – if she makes them – by criticizing any ruling she may makes, just on an assumption that she is biased.

      • BirdGardener says:

        Thanks for the link! IANAL, but my understanding is that she struck both the supplement and the request to seal, so the defendants will not be seeing or leaking the supplement.

        ….Simultaneously, the Special Counsel moves for leave [ECF No. 95] to file under seal a “Supplement” containing additional information “to facilitate the Court’s inquiry” [ECF No. 96; see ECF No. 97 p. 2 n.2, p. 6]. The Special Counsel states in conclusory terms that the supplement should be sealed from public view “to comport with grand jury secrecy,” but the motion for leave and the supplement plainly fail to satisfy the burden of establishing a
        sufficient legal or factual basis to warrant sealing the motion and supplement.
        2. The Special Counsel’s motion for leave to file under seal [ECF No. 95] is DENIED.
        3. The Clerk is directed to STRIKE from the docket sealed entries 95 and 96.

        • earlofhuntingdon says:

          Cannon was equally conclusory in holding that the government failed to plead sufficient law or facts necessary to permit filing a pleading under seal. Her perfunctory denial gives the govt no clue about how to meet her objections, unlike the trail of bread crumbs she left for the defense, concerning the propriety of using out-of-district grand jury materials in an SDFL proceeding. Presumably, Smith’s team are already well-versed on these issues.

          Cannon makes no reference to the local SDFL rules or what they require for filing under seal. Unsurprising, because the local rules aren’t much help. They refer only to “balancing” the public’s first amendment right to know vs. the moving party’s claims of special circumstances requiring sealing. So, it will be a horse race to troll through SDFL precedents before the deadline.

          It’s a bugaboo of the federal system, which allows each of the 94 district courts to set its own rules about filing under seal.

      • BirdGardener says:

        I should have phrased my statement above as a question, because I’d like to know if my understanding is correct or not. I’d also like to ask what the following bit about the grand juries in other districts means:

        4. ….Among other topics as raised in the Motion, the response shall address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district. The Special Counsel shall respond to that discussion in a Reply in Support of the Motion [ECF No. 97], due on or before August 22, 2023. The remaining Defendants may, but are not required to, file briefs of their own related to the grand jury issue referenced herein, but any such briefs are due by August 17, 2023, and may be submitted in combined or individual fashion.

        Thanks to anyone who can explain this.

        • paulka123 says:

          IANAL, but this motion to dismiss thing footnote, as I understand it, is that Trump can have the indictment dismissed, because Jack Smith improperly indicted Trump because the DC GJ is still investigating Trump. Ummm ok, does that mean that all Trump has to do is to continue criming, requiring an ongoing GJ investigation and since the GJ will then have to continue investigating, no indictment can ever be issued?

          IDK if that is a conservative logic or legal logic, but it is not a logic I am familiar with.

        • BirdGardener says:

          To my non-lawyerly eyes, this looks like Cannon is a) coaching the defense again (by raising issues they could raise but didn’t) and b) looking to assert jurisdiction? over grand jury proceedings in other states that might have some bearing on this case. IANAL and could easily be misunderstanding what she’s doing here.

        • timbozone says:

          Now that is interesting. And it seems to me that she’s trying to be told what the precedent or rule is in such matters. Hopefully there is at least one rule or precedent between Federal Circuits that makes sense with regard to ongoing GJ invesigations…otherwise, expect further delays in Trump coming to trial in Cannon’s court?

        • earlofhuntingdon says:

          I imagine Cannon has already researched that; hence her direction to the defense to take a look at it.

          But it’s not enough for an out-of-district grand jury to investigate the same defendant. There would have to be substantial overlap between the facts, evidence, and crimes separate grand juries were investigating for her to legitimately question their independent work. Ironically, a big overlap here is the identity of defense counsel.

        • bmaz says:

          I think Cannon’s question was fine. It is enough for yet another GJ to be investigating on things already known and charged, whether in or out of district. It is a fair question.

        • BirdGardener says:

          Thank you Marcy, who has a new post on these and other issues, and timbozone (and anyone else who may reply)!

        • timbozone says:

          Okay, I’ll bite!

          So…thinking about this more, perhaps it is that Cannon is trying to get a handle on the GJ investigations about what has not yet been charged, things that might make her potential rulings in Trump’s current conspiracy case before her court look like bad dog food. My understanding is that there is some protection for defendants from being abused by investigations by GJs if they continue to investigate a charged individuals case with regard to specifics already covered in indictments…although where the fuzzy line might be crossed is unclear, particularly in a complex situation like the national defense information documents at Mar-a-Lago presents. Cannon has a bigger problem than that though—there almost certainly ongoing investigations that overlap with her case in other ways.

          There’s been a lot of back and forth recently on this website about the underlying crimes that might have been committed but aren’t charged in Cannon’s court at the moment. And Jack Smith et al in the DOJ, etc, may be continuing to hunt that down…via FGJs in DC and/or SDFL…or even in, say in NJ, etc, although I think we’re all hoping, as American patriots as it were, that only DC and SDFL GJs are necessary to get to the bottom of how documents ended up going from points A to B when considered individually, how some people came to have in their possession documents that they are not legally able to possess, and for which they had no government sanctioned clearance to read, etc.

          Anyways, I do not trust Cannon to try her best to avoid interfering further with NDI investigations on behalf of Trump and Co. She’s already tried once before, and seemed to succeed for a few weeks before her taking up of Trump’s weird civil suit last year was slapped down hard by the 11th Circuits appeals panel, to interfere in an NDI investigation. And, while her recent question about conflicts between her case’s defendants and ongoing GJ investigations far and near may be legitimate on its face, it is not a stretch to imagine that she’s trying to help Team Trump in other ways just beyond the case in front of her at the moment.

          And, yeah, IMO, she should have recused in this documents case. But that doesn’t seem to be how “powerful judges” behave in GOP judicial circles these days. If she’s now honestly trying to apply the nation’s laws fairly while upholding respect for equal enforcement then great. But that’s not what she appeared to be doing a year ago in the Mar-a-Lago inspired nutty civil suit by Trump that was dismissed hard on appeal.

      • earlofhuntingdon says:

        Try Door No. 3, because under Fed Rule of Crim. Procedure 6(e)(3)(E)(i), the court may disclose grand jury materials in connection with a judicial proceeding.

    • harpie says:

      Aug 7, 2023 · 11:45 PM UTC

      NEW: Special Counsel’s team just filed a reply on the protective order: Trump “proposed an order designed to allow him to try this case in the media rather than in the courtroom;” their proposed order would “safeguard witness privacy & the integrity of these proceedings.” 1/ [THREAD]

      The rest explains why various Trump-proposed edits won’t work. One bears special mention. The Special Counsel’s office wants Trump’s counsel to confirm that any notes he takes on sensitive materials do not contain personally identifying information, like SS numbers. 8/

      That’s critical, the Special Counsel’s office states, “because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.” 9/ [THREAD]

    • harpie says:

      Re: PENCE

      [pdf3/8] […] In television appearances, defense counsel also made specific claims about what the defendant allegedly said and did during the charged criminal conspiracies, and discussed anticipated testimony of Michael R. Pence, stating on ABC that the former Vice President would “be one of our best witnesses,” and on CBS that “the Vice President will be our best witness.”1
      1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

    • harpie says:

      Enlisting Co-conspirators 1-6?

      [pdf6/8] In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

    • harpie says:

      [pdf7/8] The defendant proposes deleting paragraph 8(f). This would have the effect of removing from the order’s protections broad swaths of unredacted witness interviews and other material obtained from other governmental agencies, including the House Select Committee. For the same reasons that it would be inappropriate to allow defense counsel to publicly disseminate transcripts of witness interviews conducted by the Government, it also would be inappropriate to permit dissemination of witness interviews conducted by other government entities.4
      4 As a practical matter, most (if not all) of these interview transcripts and recordings are covered only by Federal Rule of Criminal Procedure 26.2 and 18 U.S.C. § 3500. That is to say, the Government is under no obligation to produce these materials at this stage of the proceedings.


Comments are closed.