John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump

As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

44 replies
  1. Super Nintendo Chalmers says:

    IANAL but it seems to me that Lauro is breaking federal Rule 11 guidelines and should be sanctions. A “misrepresentation” is a nice euphemism for a lie that Lauro signed his name to in the pleadings.

    • SonofaWW2Marine says:

      You may be thinking of Civil Rule 11. The Federal Rules of Criminal Procedure don’t have a counterpart to that. All lawyers are supposed to follow the ethical rules about candor to tribunals, but the constitutional right to an effective defense in criminal cases comes before any rule-based judicial power to sanction even obnoxious advocates.

  2. Leu2500 says:

    The judge is certainly aware of when DoJ requested the gag order.

    Why lie about it? It’s not like MAGAts read court filings. It’s not like Trump & Co will be unable to criticize the judge, DoJ, etc.

    Trump faces serious charges. Shouldn’t Trump’s lawyers be a little more serious in court, rather than just regurgitating Trump’s Truth Social bleatings? Or are they lost in Trump World? Because surely there has to be a reasonable 1st Amendment basis to oppose the gag order. Where’s popehat when you need him.

    • Paul says:

      Every word in every filing is for one person, not that he reads it, but someone gives him a synopsis. Lauro hopes it’s good enough to get his pay, which will be millions.

    • Peterr says:

      Pure speculation, but I think there are two possible answers.

      1) Trump demands to see every filing that Lauro makes, to be sure that he’s telling the story Trump wants told. Facts be damned, and the law be damned too. “Tell my story, and tell it my way.”

      2) While no specific demand to get a signoff from Trump on every filing, Lauro is living in fear that Trump will be displeased, and has so internalized Trump’s need for control that he constantly asks himself what Trump’s reaction would be to anything he wrote. Facts be damned and the law be damned too. “I’m telling Trump’s story and have to tell it in a way that speaks to him first and the judge and jury second.”

      Lauro is hearing Trump’s voice, either in his ears or in his head, and that’s why he’s telling obvious and objectively checkable lies. It’s what the boss wants.

        • posaune says:

          Very interesting article! Reminds me of the story told in Phila about the rivalry between Toscanini (NY Philharmonic) and Stokowski (Philadelphia Orch). Stokowski got word that Toscanini was going to make the first full orchestra recording with RCA Victor. Stokowski beat him to it by immediately taking the whole orchestra on the ferry across the Delaware River to Camden NJ, where RCA had their labs, to make the recording.

      • Konny_2022 says:

        I’m opting for answer 1) because there was ample reporting after Trump took office that he doesn’t like reading more than one page a piece (and Lauro’s filing is 25 pages long).

        Answer 2), however, is the sad part. I couldn’t possibly believe in early 2017 how many experienced politicians would fall for Trump. But then Bannon promised that any Republican politician who didn’t pledge loyalty or contradicted Trump would be primaried. And that worked, even after Bannon left the White House.

        The extension of Trump’s old hallmark “You’re fired!”

      • Spencer Dawkins says:

        I am not, and will never be, the Trump Lawyer Whisperer, but my speculation is that your first speculation is correct. If Trump has learned anything since January 20, 2021, he should have learned that the number of people he can trust to be loyal, to do what he wants, and to deliver results is small and getting smaller. Obviously, if he wants a job done right, he needs to do it himself.

        At a minimum, he wants to see, and edit, every single word a lawyer submits on his behalf(*), and I suspect that at least some of these masterpieces started out with text from Trump that he then told a lawyer to translate into legalese and send it back for final edits. That way, he’d be sure the filing would match what he says on “Truth” Social.

        (*) I’d love to see one example of a post-2020 election legal filing that actually benefitted Trump – “on his behalf” may be a serious misstatement.

      • Spencer Dawkins says:

        ISTM that we are overlooking an obvious possibility that doesn’t reflect as badly on Lauro.

        In “Between Silk and Cyanide”, Leo Marks tells the story of SOE radio operators captured in the Netherlands, then forced by their Nazi captors to transmit messages arranging drops of more agents and operators who were also captured. Many of these operators included pre-arranged “duress signals” that should have notified SOE that the operator was under Nazi control – but these signals were chalked up to mistakes by inexperienced operators and ignored.

        Perhaps the more unbalanced Trump filings contain “duress signals” from Trump lawyers? 😈

        That would explain a lot …

      • Jim Luther says:

        or (3) Lauro and Trump are focusing on the prospect of having at least one juror that cares as little about the facts and the law as they do and doing what they perceive to increase the odds of that happening.

        • Vinniegambone says:

          To lawyers, regarding a potential sleeper cell single Trump biased recalcitrant Juror, if such a brain washed person(s) is seated, and the jury hangs, can DOJ retry Trump again, one would hope. No?

        • bmaz says:

          Yes, if it is a mistrial. But who is brain washed? You have not seen one second of evidence in a real court, but have determined guilt on a blog.

      • HanTran says:

        My Great Aunt had a Victrola that used wooden needles. One sharpened them with a device that looked very much like today’s single hole punch. (by the way, at least in the theatre world, we aren’t allowed to say “master” any more.)

        [Welcome back 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. Just checked your comment history; very sorry we haven’t asked this of you during the last year. Salting your existing name with a number might be an easy approach. Thanks. /~Rayne]

    • emptywheel says:

      He has to refer to a docket number, and because of his own actions, the original request no longer has a docket number.

    • Rwood0808 says:

      They’ve bet it all on trump winning in 2024.

      When you look at it that way having the issue is much more valuable than having the law on your side.

      They fully expect to lose in court, its already factored in.

  3. Peterr says:

    John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence.

    The word “lying” is spot on.

    He isn’t being forgetful and let it slip his mind.
    He’s not being sloppy and it got edited out of his reply somehow.
    He’s lying.

    Would that more journalists would learn to use that word.

    • earlofhuntingdon says:

      Lauro seems bent…on testing the line between zealous representation and making sanctionable false statements to the court. I suspect Judge Chutkan is keeping a close eye on what he will reliably claim to be a quibble.

      • Drew in Bronx says:

        I will be very interested to see how Chutkan responds to all this. She’s very tough, but also resilient rather than brittle. (See yesterday’s story from Kyle Cheney: )

        She’s unlikely to get sucked in to reacting from a personal perspective, but that doesn’t mean that she won’t make a response that will rein Trump and his lawyers in. It’s hard to speculate what it will be since she has a lot more knowledge of the tools available to her and what the consequences will be, than I do.

      • sohelpmedog says:

        Yes. I suspect Lauro is counting on Chutkan’s judicious temperament, as Drew in Bronx, noted below. He is guessing – probably accurately – that he’d be warned before being sanctioned. But also giving the devil his due, Lauro would like to raise the question – even though it’s based on a misrepresentation of the record – of whether the SC’s proposed order is motivated by Trump’s candidacy and some stupid poll, rather than on any real danger to the participants in the court proceeding.
        Of course this is a crock of shit, but any discussion of it fits Trump’s “defense” plan.
        There’s also simply the possibility that Lauro has just fallen under Trump’s nefarious spell ($$$) and is being heedless of his career as the many lawyers before him. He presaged this earlier with his round of Sunday tv talk shows a few weeks ago. I have seen references that he is a “very competent” lawyer, but he also strikes me as a blowhard.

        • Peterr says:

          Here’s the thing: Trump’s candidacy is motivated by a misguided notion that being a candidate makes him temporarily immune from prosecution.

          Lauro and Trump’s whining about polling driving the DOJ’s prosecution is completely backwards. Again, the accusation is a confession.

      • Rugger_9 says:

        I’m wondering what Chutkan can do about this. Sanctions are fine, but Lauro also warrants removal from the legal profession. Chutkan could also do a referral with the receipts.

        So, what are the options for Judge Chutkan to force Lauro to behave and tell the truth, and would her remedies also create further delay if Defendant-1 needs to hire more lawyers?

  4. Spencer Dawkins says:

    Dr. Wheeler, I’ve been reading almost everything you post on this site for several years, but rarely have anything helpful to say beyond “thank you”. Now, I can add that I am inspired by your annotations on Trump “truths” – they always provide helpful context in a short phrase – and I ADORE your annotations on the annotated docket included in this post.

    Thank you for starting my morning off right. Now, I’ll finish reading!

  5. Just Some Guy says:

    OT: Can’t say I saw this one coming…

    ‘Sept 25 (Reuters) – A copyright lawsuit over Eddy Grant’s 1983 hit “Electric Avenue” has become an unlikely venue for a legal clash over alleged Donald Trump campaign secrets, as lawyers for Trump and Grant argue over sealing parts of the former president’s deposition testimony in the case.

    ‘Trump’s attorney Jason Kasner told a Manhattan federal judge on Wednesday that the deposition excerpts should remain sealed in order to “preserve the confidentiality of highly sensitive information regarding U.S. presidential campaign strategy.”‘

    • SteveBev says:

      To me, It is bizarre in the extreme that Team Trump misappropriated this anthem of Black British resistance to oppressive police practices.

      Electric Avenue is and was the heart of the Afro-Caribbean community of Brixton, London; the first electrically lit street market in Britain, and a stone’s throw from Brixton Police Station the focal point of the 1981 Brixton street riots, which the lyrics of the song celebrates.

      The resulting Royal Commission, amongst other things was the first official articulation of the concept of “institutional racism”, leading to the abolition of Victorian era police powers of arrest (the so-called ‘Sus Law’) and further led to the wholesale reform of police powers of arrest detention and questioning under the Police And Criminal Evidence Act. (PACE).

      This act transformed the practice of criminal law, leading to the stamping out of many abusive police practices.

      The Brixton Riots were a milestone in the cultural social and political history of Britain, and Eddy Grant and his music was at the heart of the community and the movement for change.

  6. ernesto1581 says:

    OT again: Judge McAfee (Fulton County case) ordered an extra layer of security for prospective jurors yesterday in the wake of continual doxing of grand jury members.
    Although, as Atlanta Journal-Constitution ( notes, “While McAfee’s order offers some additional safeguards, in reality not much is changed. Standing court rules prohibit media from recording and photographing jurors in criminal trials.”

    (apologies if someone has already noted this.)

    • Overshire says:

      Not sure I’d feel a lot more “secure” as a GA juror knowing my name and address were to be kept secret, but only until the trial was over.

      • earlofhuntingdon says:

        Protects the trial and possibly the verdict, but not the aftermath. Seems woefully incomplete. After all, its stated rationale was to avoid what’s happening to the grand jurors and others, But their names weren’t made public until after the indictment.

  7. PeteT0323 says:

    Let’s wait to see how long until Trump steps in it some more by ratcheting up the BS after Cassidy Hutchinson’s current round of TV interviews.

    I thought she was very courageous and poised last night on Maddow, but discussion on that and her revelations is perhaps for another topic.

    • earlofhuntingdon says:

      Lawyers are not formless puppets for their clients, and the ills of their clients should not ordinarily be imputed to them. They have independent personalities, and obligations to the profession and the courts.

      But you’re right, Trump has a rare gift to spot and employ only those people willing to do almost anything to stay within his sphere of influence, enforced by the lengths to which he seems to go to punish those who leave. Once in, only a few get out. Cassidy Hutchinson is one of them.

  8. Harry Eagar says:

    This — the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate mean — was unfortubateqly times, inasmuch as tone day erlier trump de

  9. Harry Eagar says:

    manded that NY’s higher courts intervene to halt the proceedings against him.

    Not in a motion but in a TS post

  10. Savage Librarian says:


    Poor old Lauro can attest,
    It’s very hard to keep abreast
    of the dockets so addressed,
    That’s why he has his hope chest.

    Isn’t there some memory test
    he can point to if hard pressed?
    Surely, he speaks in jest,
    respond the MAGAts who self-confessed.

    He may be one of the well dressed,
    On a mobster’s special quest,
    But it’s time to give it a rest:
    He’s seen action at a Don’s behest.

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