Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.


Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.


The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

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!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

  • The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
  • Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
  • The death threats that followed Trump’s public attack on Al Schmidt.
  • Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
  • In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

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.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

88 replies
  1. Barringer says:

    What is likely to happen when Mr. Trump inevitably violates the protective order? A gag order? And when he violates that? Is there any reasonable chance he could be thrown in jail before the trial starts?

    • drhester says:

      I also am curious about this. What about his lawyers? They too aren’t allowed to yap, right?

    • smf88011 says:

      Trump has said that he will ignore the order because it violates his First Amendment Rights. Let’s see what happens when he does break the coming Protective Order.

  2. Capemaydave says:

    Preempting testimony/reports is such a prominent aspect of GOP propaganda, from Bill Barr’s “summary” of the Mueller Report to the GOP Congress’ description of Devon Archer’s testimony to this:

    “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.”

    Thanks again for the analysis Marcy. Always appreciated.

    • AllTheGoodIDsWereTaken says:

      I found it interesting that DOJ listed (in detail) all of John Lauro’s statements over the weekend, and a few paragraphs later pointed out:

      This District’s rules prohibit defense counsel from doing precisely what he has stated he
      intends to do with discovery if permitted: publicize, outside of court, details of this case, including
      the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of
      attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among
      other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he
      identity, testimony, or credibility of prospective witnesses.”

      Is this a not-so-subtle way of pointing out Lauro’s possible actual (not just potential future) non-compliance with the rule without actually saying it?

      IANAL, so certainly not positioned to adjudicate that question myself, but found the linkage interesting.

      PS Hoping the

      tagging works, as not 100% sure what I’m doing there. Apologies if not.

  3. Peterr says:

    Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

    But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

    “Those unwilling to bow to Trump’s demands” now includes Judge Chutkan based on how hard she is pushing to move this case along expeditiously, as well as the statements she had the magistrate judge make on her behalf at Trump’s arraignment.

    The practice the government cites of Trump & Friends “publicly targeting individuals” is not an abstract thing if you are one of those being targeted. I wonder how many threats aimed at her/her staff/the courthouse have come in already, and when the next one will arrive.

    A question: would the DOJ be able to get information on such threats (#, timing, targets, etc.), to be able to be able to refer to them at the upcoming hearing on this order? “Your honor, your own courthouse has now received X threats, requiring the kind of enhanced security measures that have been put in place for you, your staff, and other courthouse employees and visitors. These specific threats are further additional examples of why we are pushing for this order.”

  4. harpie says:

    But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

    This is such a brilliant observation!

    I’m reminded of TRUMP telling Sondland that
    he wanted to put Zelenskyy “…in a public box”.

    TRUMP has been publicly attacking Smith [and Smith’s wife] for months, now.
    I have read that they are under heightened protection.

    • Spocko says:

      I came here to make the same comment!

      .”method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.”
      Trump’s use of Truth Social, which has TOS, but doesn’t enforce them, and the way that people on Xwitter repeat them will ensure the threats get out.

      The question will then be, what will be the consequences?
      We know Trump is good at mob speak, but when it is the name of someone who is previously not known who becomes a focus of Trump after discovery, just the MENTION of them should be a violation of the pretrial conditions.,and the future agreed upon protective order.
      The parsing of what exactly he says about someone (it was not a threat!) will happen, but like suddenly bringing up Cassidy Hutchinson, it should signal to the DOJ & the Court a violation of the protective order.

  5. harpie says:


    [Unknown time] TRUMP and Pence meet alone. “When [Pence] refuse[s] to agree to [TRUMP’s] request that he obstruct the certification, [TRUMP] gr[ows] frustrated and t[ells] [Pence] that [TRUMP] would have to publicly criticize him. Upon learning of this, [Short] [is] concerned for [Pence’s] safety and alert[s] the head of [Pence’s] Secret Service detail.” [97]

    [Night] Hours after the TRUMP – Pence meeting, TRUMP approves and directs his Campaign to issue a public statement that he knows to be false: “The Vice President and I are in total agreement that the Vice President has the power to act.” [99]

      • BirdGardener says:

        That is classic abuser mo: blame-the-victim. ‘It’s your fault I’m doing you harm!’ The fact that so many people fail to recognize abusive behavior when it’s right in front of their faces suggests widespread psychological ignorance and/or a widespread lack of good mental health.

        Years ago, I didn’t believe my psych teacher when they said mentally healthy people were uncommon. Now I do.

        • Matt___B says:

          The concept of DARVO (deny-and-reverse-victim-offender) which is well-known in psychology and cult studies needs to become part of current generic society-wide vocabulary, y’know, like “kleenex”. It’s an important concept that has relevance and needs to be pointed out wherever and whenever it occurs…

          • ceebee_dee says:

            Yes, Matt_B. High school courses in reasonably current social psychology seem deeply appropriate to forstall a number of risks that can impact young lives.

            If the problem has a name, you may find ways to fight it more easily.

    • harpie says:

      Yamiche Alcindor reported TRUMP’s false message at 10:03 PM, with a screenshot, here:
      10:03 PM · Jan 5, 2021

      According to Bob Costa, TRUMP had directed Jason MILLER to write that. When Short later called MILLER to complain, [Costa writes that] MILLER said: “The vice president has the ability to do this, he needs to be loyal”

      Here’s the Costa THREAD, which I can no longer access or read:
      12:49 PM · Oct 23, 2021

  6. Bears7485 says:

    This is intriguing to me. It seems nearly impossible to delineate between campaign and prohibited speech given Trump’s stream-of-consciousness speaking tendencies.

    Questions: Is this back-and-forth typical when a protective order is requested? Is there a precedent set with a similarly high-profile defendant as to penalties for refusing to abide?

  7. boloboffin says:

    Why do all these lawyers keep giving me bad legal advice that I accept in good faith in order to commit what would otherwise would be crimes?

  8. David says:

    Trying to summarize the likely DoJ goals:

    1. Prevent Trump’s attorney’s from trying the case in public.
    2. Prevent Trump from “outsourcing” threats to witnesses.
    3. Limit the sharing of discovery so that conflicted attorneys can’t use it, say, to prevent potential cooperating witnesses from flipping. Or, say, to coach them.

    “David” is not in compliance with our new eight character protocols. Please make a new screen name that is in compliance. – bmaz

  9. David F. Snyder says:

    This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney …

    … or more to the point, not an attorney-of-record for Trump.. So client-attorney filtering of Eastman’s phone content would not be needed. Is that the point?

    Thanks, Marcy, for these annotations.

  10. pseudonymous in nc says:

    One for the lawyers: does the fact that the co-conspirators are identifiable but not identified provide the defense with plausible deniability about whether the former guy can interact with them, or is the prohibition on direct contact with any witnesses broad enough to cover that?

    (I think those restrictions and any protective order will be violated, quickly — the law is like weather to these people — but given how the former guy will never be treated as an ordinary defendant I think DOJ’s strategy will be to make it as hard and painful for his lawyers as possible, and it’s already begun.)

    • c-i-v-i-l says:

      Wouldn’t they be identified in the discovery materials though? (IANAL and do not know how people are identified in discovery materials, but my impression from lawyers’ comments is that the identities are not masked.)

    • Operandi says:

      He might be able to colorably, if perhaps not convincingly, make the “I don’t know who these people are” claim at the moment, while DoJ is waiting for the protective order to be put in place before providing discovery. But Chutkan seems intent on putting that issue to bed ASAP. And as soon as that order is in place, I expect DoJ to immediately dump a big gift-wrapped discovery package on him like they did in the docs case.

  11. newbroom says:

    The former *president’s initial candidacy should have been prevented early on. He demonstrated his belligerence and bravado against all but his malicious confederates.
    He issues threats as a hobby.
    “If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

  12. says:

    With the caveats that I’m not a careful reader and can’t make inferences very well…

    I surmised BE was CoCon6, and never considered anyone else for 4 reasons:
    1] See paragraphs in NYTimes article between Rios picture and Sadler picture: especially part where BE was careful to drop request to be labelled ‘counsel’ retroactively, and carefully clung only to ‘political consultant’ role descrption , and
    2] How Boris depicts himself on his personal website , and
    3] Eric Hirshmann’s J6 Committee interview transcript, and
    4] Email mentioned in indictment in CoCon6’s description, which NYtimes said was new, but which I had seen before (in either J6 committee materials or CA fed judge Carter’s attachments, deemed not AC privileged or exempted from it). I recalled the email right away when i read the descriptor in the indictment.

    And completely unrelated comment about boxes:
    you mention elsewhere that Jack Smith has no evidence of box packing, shipment, placement etc. (without Nauta’s future cooperation). But, besides recalling reading what struck me as a likely inaccurate description in Parlatore’s 10 page ” ‘Congress, please save Trump’ letter,” I thought i had also read all about ship and storage places and dates from you Marcy, around holidays late in ’22. But now I recall you linking us to all the J6 committee interview transcripts, so perhaps I read it there? Any chance one of those interviews (inadvertantly?) discussed trump’s boxes as part of some discussion around the Russia binder or delayed GSA Ascertainment (with interviewee Harrison–either male or female, S. Miller’s wife, Mollie M, or staff chiefs to Ivanka / Melania)? I think I recall that there was also a picture of boxes outside a gate and a guy or 2 on the phone with the description. Or did my hazy hypothyroid brain invent all this?

    • Lurks123 says:

      “Jack Smith has no evidence of box packing … etc”.

      He may have lots of evidence without it being sufficient evidence.

    • emptywheel says:

      That’s the Hutchinson stuff.

      She talks about trying to DECLASSIFY docs so they can have them released.

      That’s something different.

  13. Matt Foley says:

    “RAPE INTERFERENCE! SO UNFAIR! Judge Lewis Kaplan is a very nasty person who would not exist if not for me. Everyone knows it’s not rape if the woman enjoys it. A lot of women tell me I’m the best lover they’ve ever had. Did I mention I’m a Christian? Send more money! MAGA!”

  14. Frank Probst says:

    Sort of OT: I didn’t realize that Lauro had done the full Ginsburg, but it’s already been confirmed in Wikipedia’s entry on “Full Ginsburg”.

    • sohelpmedog says:

      Andrew Weissman – a questionable source himself since his cable presence – said Lauro is a good lawyer. Can this be so? Or perhaps Lauro’s millionish dollar retainer required him him to go on the air and spout stupid shit even if it confirms his client’s guilt.

  15. Frank Probst says:

    Not OT: How much of an attorney’s public bluster can be used against a defendant in court? I’m used to working with doctor/patient privilege, so I tend to start with that mindset when attorney/client privilege comes up, but I’m well aware of the fact that there are significant differences between the two. Trump’s lawyers appear to be admitting to quite a bit in the press, but it seems to all be along the lines of, “Yes, he did this, but it was wasn’t criminal because of:” The First Amendment, the fact that he’s totally delusional, etc. At what point do the “Yes, he did this…” statements become admissible?

    • eyesoars says:

      IANAL, but previous discussions here and elsewhere indicate “anything you say can and will be used…” applies to the lawyers as well.

    • Dave_MB says:

      Statements by lawyers in legal pleadings are judicial admissions that are binding on their clients. The circuits are split on whether statements in briefs or memorandum are binding judicial admissions. Neither the 11th (Florida) nor 4th (DC) circuits have had a ruling on it.

      Out of court statements are considered hearsay and are generally not admissible. The statement wasn’t under oath and there was no chance to question (cross examine) the person regarding the veracity of the statement. There are accepted hearsay exceptions such as business records, dying declarations, excited utterances that might make the statements more reliable.

      Regarding your question, a statement against self-interest is not considered hearsay. People don’t typically say things that will hurt them at trial unless the are true.

      A lawyer making a statement against their client’s self-interest is not a statement from the client. Lawyers can make different statements in interviews than they do in pleadings. While politicians are allowed to lie, lawyers are not supposed to lie. But their understanding or trial strategy can change.

      The Defendant’s statements against self-interest would be admissible. The lawyer’s characterization would not be.

      • bmaz says:

        “Statements by lawyers in legal pleadings are judicial admissions that are binding on their clients.”

        Oh, really, do tell.

      • timbozone says:

        Are you a lawyer in the US?

        I ask because “People don’t typically say things that will hurt them at trial unless the are true.” seems to be wildly off-base. For instance, in the US you have a privilege to not incriminate yourself but it takes people who have experience with the law to know when you might want to assert that privilege generally, and to know when you likely cannot assert such a privilege specifically, etc. There are so many other examples where saying something at trial that one believes will come across as true won’t.

        IANAL, and know I’d want someone competent to help me defend myself in criminal court if at all possible. What you have written above would not make me confident that you are sufficiently competent.

  16. scroogemcduck says:

    Not a lawyer, but when you cut through all of the lawyer-speak, Trump’s filing seems to amount to “I’ll do whatever the f*** I want. 1st Amendment, b*****s!”

    It’s just a new spin on an old theme. Back in 2019, Trump said “I have an Article 2, where I have the right to do whatever I want as president.” Now it’s, “I have a 1st Amendment, where I have the right to do whatever I want as a Presidential candidate.”

    • drhester says:

      David Kurtz at TPM has an interesting observation.

      Despite Smith’s best effort to get Chutkan to rule without a hearing, she decided she wanted an in-person argument and quickly set the stage for one before the end of the week. It’s not an unreasonable balance for Chutkan to strike, but it will play out like this over and over again. Trump will turn every minor procedural skirmish into World War III and every serious matter into armageddon. There’s no real way for a reasonable judge to balance that kind of strategy in a way that doesn’t allow for at least some delays.
      Again, Trump is playing a different game.

      • sohelpmedog says:

        Not sure the basis for Kurtz saying “Smith[ used his] best effort to get Chutkan to rule without a hearing.” Of course the SC is doing his best to preclude delay, but everything Chutkan has done in this case so far pretty clearly shows she will not countenance delay. The hearing on the protective order will take place no later than this Thursday, which is within 3 days of the filing of Trump’s counter-proposal of a protective order. Ultra Rocket Docket.
        There is a good chance that after giving Trump’s attorney’s a chance to be heard, that Chutkan might well issue a stern warning to Trump through his attorneys about his threats to the participants in this proceeding. In any event, it’s clear she is not going to get messed with.

        • scroogemcduck says:

          This was my take – she is scheduling a hearing so:
          1) she can’t be accused of not giving Trump a fair hearing;
          2) she can tell Trump’s attorneys that she was not put on this Earth to listen to their bullshit; and
          3) she can instruct Trump’s attorneys to warn their client that she has the power to send him to Leavenworth if he faile to comply with the conditions of his release, .

        • sheesh49 says:

          Kurtz misread the Minute Order–Chutkan wants the parties to confer and try to set a date for a hearing—the Court will be “schedule” a hearing on Thursday–it won’t take place on Thursday.

          [Welcome back to emptywheel. FINAL REQUEST: Please use the same username AND EMAIL ADDRESS each time you comment so that community members get to know you.
          1) Case matters: your last username was “Sheesh49” and this one is “sheesh49” which are NOT the same.
          2) You used a different email address on this comment than your last which triggers moderation to screen for possible spoofing of another user’s name.
          This time may have been a typo but we simply don’t have the time to correct users’ Name/Email Address fields. /~Rayne

          • DaveVnAz says:

            I think the order says to DT & SC – (agree/pick) two dates between here and Friday and Chutkan will schedule the hearing for one of the two choices.

            • Moose #2 says:

              Correct, and the remainder has played out.

              Smith said:
              “The Government is available at any time on August 9, 10, or 11.”

              Lauro said:
              “President Trump will not appear. However, he would like to have both his counsel John Lauro and Todd Blanche at the hearing. Todd Blanche is not available on Thursday, since he must appear for a court proceeding in the prosecution brought against the same defendant, President Trump, by the Special Counsel in SD Florida. Mr. Lauro is available on Thursday, with a preference for an afternoon setting. However, since we lost Friday as an option, we would respectfully request a setting on Monday (after 12:00 p.m.) or Tuesday (all day) to allow for both Mr. Blanche and Mr. Lauro to be present.”

              With Mr. Lauro completely ignoring the 9th as an option, and not specifying any reason for his supposed unavailability on the 11th, Judge Chutkan responded:
              “The court hereby schedules a hearing on the parties’ respective protective order proposals in this matter on August 11, 2023 at 10:00 AM in Courtroom 9.”

              I’m a little surprised she didn’t pick the 9th, since Lauro says “we lost Friday as an option” but says nothing about being unavailable on the 9th.

              • RockyGirl says:

                I don’t think that Trump or any of his KMart cadre of lawyers has any idea how totally outmatched they are.

      • earlofhuntingdon says:

        More jejune reporting from TPM. Kurtz is so desperate to get to his banal conclusion that he skews his reporting. He misdescribes what Smith was asking Chutkan for, which he got, and is constipated in accepting that her order for a prompt hearing was “not an unreasonable balance.” Actually, it’s called “judging.”

        And he’s wrong to say that there is “no real way for a reasonable judge to balance” Trump’s performative outrage with the need for a fair trial. Trump is not Grendel. He and his lawyers can be subject to well articulated beforehand sanctions of increasing severity in a way that would survive appeal.

        • earlofhuntingdon says:

          Lesson one for Dan Kurtz. Trump’s clowncar lawyers tell Judge Chutkan they can’t meet and finalize an answer with the prosecutor until the week after next, after her deadline to both parties.

          Chutkan demurs and schedules a hearing next Friday in court to work it out. Calm, straight, no nonsense, no parking bullshit in her court response.

      • ToldainDarkwater says:

        I think that there have probably been a lot of defendants who sought to delay trials as long as possible. Though mostly only well-heeled ones. I expect judges have seen this before and know how they want to deal with it. There’s probably some judicial discretion there as to how far you let them run on.

        I think what’s going on that’s really unprecedented is that Trump is using the judicial system to fundraise. This was seen in its purest form elsewhere – in a lawsuit of Hillary Clinton, I think it was? But it’s also in play here. The public fronting of rebuttals isn’t just about tainting a jury, it’s also about raising money. Maybe mostly about raising money.

  17. Savage Librarian says:

    Hmm. Back on the Epshteyn/Roman teeter-totter. I’m reminded of that old, not quite verifiably attributed to anyone, campfire or nursery rhyme phrase: “When you’re up, you’re up. And when you’re down, you’re down. But when you’re only half way there, you’re neither up nor down.”

    Epshteyn certainly has all the characteristics of an imperious Trump MAGAt, including words and actions that align with the fake electors narrative. Roman seems almost staid by comparison. I guess time will tell.

    Someone else I’ve been puzzled by is Will Russell, another one of Stanley Woodward’s clients. IIRC, Russell spoke to the GJ three times. After he assisted Trump at the WH, Russell went to Florida with him.

    “The Grand Old Duke of York” – Wikipedia

  18. bloopie2 says:

    May have missed it, but I haven’t seen discussion of whether Trump’s media postings can be limited so as to avoid the situation where he effectively gets to testify in his own defense without being cross-examined. After all, he is getting his story out there (well or poorly, you pick), but he is not being confronted on it by an able interrogator. How do you deal with a defendant who speaks to (and “rebuts”), out of court, every point raised by the prosecution? This is likely not a unique situation in the annals of law, I assume. A gag order once trial starts?

    • RitaRita says:

      Not a trial lawyer but …. The jury selection is intended to weed out people who can’t or won’t follow jury instructions and people who may have unshakeable preconceived notions. The jury instructions admonish already seated jurors. It is possible that Trump can make it so that is difficult to find jurors.

      • Bobby Gladd says:

        Jack Smith needs 12. Trump only needs one, minimally, to throw intractable sand in the gears. All accomplished, of course, using other peoples money.

        We will all be mired in handwringing speculation for the near future. At this point, I don’t have a very good feeling about a just outcome.

  19. dep11_08AUG2023_1310h says:

    Assuming the protective order prohibits the exposure of discovery materials, can Trump and his attorneys continue to try the case in the public sphere with fictional materials that can be claimed or implied to be sourced in the discovery process? If so, doesn’t that make the protective order next to useless? Since a total gag order is unlikely given the first amendment along with the election, I would guess that the judge and prosecution have limited means to effectively preclude the defense activating the media.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

  20. The Old Redneck says:

    I saw Lauro on ABC on Sunday morning. He was spewing bullshit so fast that George Stephanopoulos couldn’t keep up. He said (1) Trump was being told that election fraud was real (and as a bonus, that it truly was real, and still is real today); (2) all his actions were based on advice from his lawyers, such as esteemed constitutional scholar John Eastman; and (3) he only asked Mike Pence for a “pause” on counting votes. It was, in its way, a virtuoso performance.
    The problem for him and for Trump is that none of this bluster is going to fly when the actual trial starts. That’s why they’re trying so hard to delay it.

    • earlofhuntingdon says:

      Lauro badly misdescribes what his purported pause would have entailed: the unlawful obstruction of an official proceeding.

      • The Old Redneck says:

        And another I forgot to mention: he said several times that Trump was being prosecuted “by the Biden administration.”

        • jdmckay8 says:

          I saw only his CBS (I don’t know what to call it, run with…) discussion. It was an very impressive, all encompassing spay of bs. Chuck got a little discombobulated, or at least his face did.

          A couple others to your list:
          a) He said Biden publicly advocated for Trump’s prosecution (I think he said twice).
          b) Lauro said Trump’s talk with Raspinburger was good ‘ole aspirational free speach.

          My guess is b) will live in infamy for a loooong time.

        • Alan Charbonneau says:

          Trump was investigated by Mueller during the Trump Administration. Someone should point that out to him…

    • GSSH-FullyReduced says:

      “ all his actions were based on advice from his lawyers, such as esteemed constitutional scholar John Eastman”
      Don’t forget John’s coCon, Kenbo Chesebro, who apparently learned how to twist his mentor’s words so badly they triggered this sharp-edged response from an actual constitutional scholar:

  21. jdmckay8 says:

    Attn: bloopie @ August 8, 2023 at 12:24 pm —

    Most of what you say/ask has been discussed here for a long time, even before Trump’s presidency ended. There’s no fixed playbook, and every Judge has wide discretion. But you said:

    testify in his own defense without being cross-examined.

    Acknowledging we are deep in a post-truth era, and seemingly every time I think every boundary separating good & evil has been breached, they set new records demonstrating intentions to broaden & deepen the depths of this “co-mingling” building on the “foundation” of the previous outrage.

    With that said, right here right now, Trump cannot testify without being cross examined. Perhaps a timely insurrection could rectify this situation. An aspirational (not an) insurrection.

    IANAL. And as this clown show unfolds, I’m increasingly very grateful to myself for this (IANAL) fact. I cannot imagine doing what I’ve done professionally using the deceit these people practice brazenly.

    [FYI – edited to reduce number of comments in thread while directing comment to intended community member. /~Rayne]

  22. Bobster33 says:

    I am curious who Trump will call as a witness for his defense? Any of the six unindicted co-conspirators will likely be thrown under the bus by Trump’s lawyers and/or skewered by Jack Smith. Melania might just be willing to say more than anticipated. Jared, Ivanka, Don jr. would likely end up in legal jeopardy after testifying. Who might come and provide exculpatory testimony? According to the current trial calendar, when will we find out who is on Trump’s witness list?

  23. Wajimsays says:

    Yawn. Going fishing on the Lochs River (Idaho). Wake me up when something actually matters, won’t you?

    [Moderator’s note: Please don’t waste thread space on this kind of comment. This is not “Xitter” for drive-by shitposting. /~Rayne]

  24. greenbird says:

    Aug 9, 2023
    Set/Reset Hearing as to DONALD J. TRUMP: A Hearing on the Parties’ Respective Protective Order Proposals is set for August 11, 2023, at 10:00 AM in Courtroom 9. before Judge Tanya S. Chutkan. The requirement of Defendant’s appearance is waived for this hearing. (jth)

  25. Fran of the North says:

    Not sure how much visibility this will get here since this post is a couple days old, but ABC News is reporting that a man who had allegedly threatened President Biden and had been under investigation by the FBI and Secret Service was killed this morning during a raid at a residence in Provo Utah.

    This is another example of RWNJ’s dog whistles and ‘free speech’ leading to real violence. I think it is too early to determine the facts and who was ultimately at fault; this event will be fleshed out over the course of the next days and weeks.

    • Rayne says:

      Made me think of the lone wolf Ricky Schiffer who tried to attack the Cincinnati FBI office after Trump pitched a bitch on social media after the August 2022 warrant was served on Mar-a-Lago.

      This is exactly why Trump and his lawyers can’t be allowed to claim First Amendment allows Trump unfettered trash talk about the DOJ, state and federal courts, the Biden administration, and most importantly, witnesses.

      • Glen Dudek says:

        Yep, it’s known as “stochastic terrorism”, defined at as “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” As this is clearly not covered by the Brandenburg exception to freedom of speech (“directed to inciting or producing imminent lawless action and is likely to incite or produce such action”), we are pretty much powerless to stop it here in the USA. IANAL, but I don’t think it can even be used in a civil case as that would be using part of the government (in this case, the courts) to suppress free speech. We could consider a change to the constitution to except this, but as history has taught us such changes are liable to be used by the powerful to persecute (or prosecute) the less powerful rather than how we might prefer it to be used.

      • Fran of the North says:

        IIRC, Mr. Schiffer was armed with a pneumatic nail gun. Not to say that an improperly wielded nail gun isn’t a deadly weapon, but I don’t think that a stable individual would choose that as a go-to in an attack on law enforcement.

        Trump is pushing the limits. At some point, he really is yelling ‘FIRE’ inside a crowded theater. From everything I’m seeing here, Judge Chutkan will allow FPOTUS to gradually turn up the heat, not realizing he’s the frog in the pot.

    • Savage Librarian says:

      Didn’t Microchip once claim to be living in Utah? For some reason I have the impression that he really wasn’t there but was claiming to be there.

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