DOJ’s Theory of Trump’s Mob

DOJ’s reply on its bid for a gag on Donald Trump has a number of the things you’d expect.

It has a list of the seven people Trump has threatened since the last filing on this, including Trump’s vicious attack on Mark Milley.

With each filing, DOJ just keeps adding to the list of people Trump either incited or targeted.

The government also notes that Trump may have broken the law — or claimed he did, for political benefit — when he claimed to have purchased a Glock.

9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”

The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).

Notably, the government points to 18 USC 922 as its basis to claim it would be illegal for Trump to purchase a gun. His release conditions don’t prohibit him from owning a gun.

Trump won’t be charged on this. Which means it’ll be another thing Hunter Biden will use to show selective prosecution.

But I’m most interested DOJ’s rebuttal to Trump’s claim that Jack Smith improperly connected Trump to January 6 in his press conference announcing the indictment when he said Trump had, “fueled . . . an unprecedented assault on the seat of American democracy.”

The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong.


[T]he indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:

  • The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
  • In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
  • Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
  • Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.

In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.

This is a very neat formula of the things Trump did to stoke the violence. The lies provided foundation for the rally which provided an opportunity to target Pence which provided the cause to send mobs to the Capitol. DOJ has been working on laying out this formula for 26 months. Here they lay it out in a few short paragraphs, one way to read a complex indictment.

More remarkably, it comes as part of a gag request that — while it mentioned Trump’s attacks on Pence after the fact — didn’t focus on Trump’s dangerous targeting of Pence to gin up the mob. The initial gag request looked at all the other lives Trump ruined by targeting them. But it didn’t focus on Pence.

Here, once again in the response to an invitation by Trump to do so, DOJ neatly lays out how Trump’s attacks on Pence were a key tool he used to direct the mob.

117 replies
  1. Ebenezer Scrooge says:

    Precisely how does the DoJ think it is going to enforce any gag order it gets against Trump? A fine won’t deter Trump. Incarceration? DoJ incarcerated SBF for being a bad boy before trial, but Trump? Na ga ha pen. The court could preclude Trump from demanding a change of venue (something like unclean hands), but that won’t deter Trump either. Either Smith’s team doesn’t know what it is doing (unlikely!) or there is something I do not understand. Could somebody please set me straight?

    • montysep says:

      Why don’t we just wait until the hearing on the 16th or afterwards to see the injunction itself. There’s a likelihood that Trump will not violate that.

      If you can’t wait that long, then you’ll have to hope Norm Eisen and the experts at Just Security do the hard work and go public with a “memo” for a proposed order. Then we can take pot shots at that. Let’s not get too ahead of ourselves. Talking about our blind spots won’t move the needle.

      • earlofhuntingdon says:

        “There’s a likelihood that Trump will not violate that.” LOL.

        Can’t tell whether you left out the snark tag or think you’re describing probable behavior from Trump. The likelihood that he would restrict his own behavior, let alone comply with the lawful demand by a Black immigrant woman judge is somewhere between nil and none.

    • Rick Mortensen says:

      “Na ga ha pen?” Cute! And what so you suppose will “ha pen” when Trump is convicted? Slap on the wrist? At a certain point, the only acceptable result is that Trump will be incarcerated. Why is that so hard for people to accept? Yes, there may be violence. We have an insurrection act and military readiness. Unless you think a judge will be afraid to impose a mandatory prison sentence when there is a conviction, your remark is ridiculously short sighted. Trump can be jailed pretrial just like he can be jailed post conviction, and your cowardice is sickening.

      • bmaz says:

        Hi there. Welcome to Emptywheel. Maybe try to come in a little less hot should you return. Although it is possible, there is little chance Trump will be detained pre-trial. “Cowardice is sickening”? Stop. And, by the way, there are no “mandatory prison sentences”, even in the local Atlanta case. Know what you are talking about before castigating people, and you do not appear to.

      • Norskeflamthrower says:

        No need to call anyone out for being a coward around here. I believe that you are correct and that there will be violence if he is incarcerated at any time but I also believe that there will be violence regardless. Before you talk about swallowing the suicide pact that is the Insurrection act, think for a moment.

    • Rogue Hawkeye says:

      It would be wonderful for Judge Chutkan to correctly observe that by openly attacking witnesses and the prosecution, Trump is signaling he is ready and prepared for trial. “Sir, you indicate you have all your facts and arguments prepared in making these public assertions. This tells the court you require no further time. The trial begins October 16 at 9 am.”

      • earlofhuntingdon says:

        Too soon for that remedy. She needs to try less restrictive sanctions and have them fail, which is what would allow her to impose greater restrictions that survive appeal. This is a cat ‘n mouse game, one I suspect Chutkan is as good at playing as the Don.

        • Rwood0808 says:

          If she adopts the “incremental change” gameplan, which the dems foolishly think is the answer to everything, then she’s handing a win to trump. When is somebody, anybody, going to understand that this will all be decided outside the courtroom??

        • trnc2023 says:

          If DT thought it would all be decided outside of the courtroom, he wouldn’t have hired attorneys, especially ones who actually require payment.

        • Rwood0808 says:

          I understand why many feel that way, but to trump the lawyers are mearly additional cast members in the 2024 production of Trump for President.

          Someone feel free to correct me if I am wrong but the chances of trump being found guilty and behind bars anytime before Jan 20th, 2025 are ZERO.

          If he’s not defeated at the box-office first, none of this courtroom activity will matter, and very likely torn apart by future generations.

        • BrokenPromises says:

          He’s been found guilty many times already. His no rather your box office trope is simply wet tissue in this arena.
          He will be found guilty by the time of the Rep convention in June 2024. You have that on good authority – mine.
          The problem you now face is that if you say I have nothing to base that on you expose the exact nature of your post.

        • bmaz says:

          Um, no, “he” has never been “found guilty”. Please identify any such conviction you rely on.

        • CoffaeBreak says:

          I hope that you don’t think that Trump is enjoying this. He looks terrible, angry and is lashing out. The diagnosis of his fall is imminent in that The Honorable Judge Engoran has already judged that he defrauded New York. The rest is the slow painful death of his empire.

          Me? If I had a diagnosis of cancer with no hope of survival, I would want it over quickly. There is no need to rush. Tic Toc…

        • SteveinMA says:

          Would restrictions on his use of social media, or perhaps a requirement that social media posts be vetted through his lawyers be a reasonable incremental approach? And would there be something else possible to rein in his public speeches that have attacked and threatened various actors (judges, prosecutors, witnesses)? I hope so, because I find Trump’s threats of violence to be extremely disturbing.

        • BrokenPromises says:

          Chutkin has a larger (metaphorical) cudgel in the judicial authority to maintain order and civility in the trial process.

        • Ginevra diBenci says:

          Cat ‘n’ mouse? DJT is too big and lumbering and blowhardy to be the mouse. All the animals I’ve tried to put in this metaphor (elephant, warthog, Goldendoodle, Dutch Lop rabbit) are too smart and/or sympathetic, so as a cat person who’s been played by cats myself I have to put it thusly: This is a cat ‘n’ human game. Chutkan is a tigress who knows how to wait.

  2. TimothyB says:

    Foregrounding the J6 material from the original indictment after Lauro falsely denied it. There’s lots of mendacity in the defense motion, so picking this particular falsehood must be meaningful. Thanks for pointing this out.

    IMHO, the best burn in the reply brief comes when quoting from the def. response:
    … stating that such witnesses do not “sh[y] away from a hearty public debate with [the defendant]” …
    The def. response brief always refers to the defendant as President Trump. Square brackets FTW.

    • HikaakiH says:

      [IANAL] My guess is that highlighting the falsity in Lauro’s response to the motion ratchets up the pressure of Lauro to stop making false claims in court filings that are likely included for political effect rather than genuine legal argument. I refer back to someone else’s suggestion that the outlandish and false claims in the filings are there to allow Trump to quote them as part of the court record exactly to get around gag orders that prevent him from making personal comments on his case.

      • SteveBev says:

        That was me.

        Although I hedged that by accepting that selectively quoting his attorneys’ filings to propagate inaccurate statements of law and fact is not within the spirit and purpose of the order being sought, and suggested that the part of the order dealing with quotation of court filings by the parties or their lawyers should be redrafted to make crystal clear that any such selective quotation which might be capable of being interpreted in ways which misstate law or fact is prohibited.

        I don’t know whether that suggestion is viable. I come from a jurisdiction in which takes a much more restrictive stance on public discussion of ongoing proceedings.

    • RMD de Plume says:

      IMO trump is branding….and having his legal advisors adhere to directives that support the brand and the narrative….that he was president, is president, and shall be president, …a doxology of sorts

      [FYI – your comment was held in auto-moderation for security reasons as it contained broken HTML. Please check your tags at W3CSchool’s Try It Yourself tool before attempting to publish here. /~Rayne]

      • RMD de Plume says:

        Rayne, I confess to having relied on the edit function to test/check my html tags….and sometimes mixup placement of the forward slash. Thanks for the link to W3C. Should bookmark it and check posts before submitting. Hope you’re well. Have a good day!

  3. Peterr says:

    I’m impressed with the opening to the DOJ brief. After recapping their initial motion for a narrow gag order, they write:

    In the defendant’s opposition—premised on inapplicable caselaw and false claims—he demands special treatment, asserting that because he is a political candidate, he should have free rein to publicly intimidate witnesses and malign the Court, citizens of this District, and prosecutors. But in this case, Donald J. Trump is a criminal defendant like any other.


    But then they pivot to immediately focus their concern for the judge. It’s not “Trump said something mean about me/you/the DOJ” but something a bit more important:

    And as this Court has correctly stated, it has an obligation to protect the integrity of these proceedings from prejudicial interference: “In a criminal case such as this one, a defendant’s free speech is subject to the release conditions imposed at arraignment and must also yield to the orderly administration of justice.” Tr. of Protective Order Hr’g, at 6:4-7 (Aug. 11, 2023). The defendant should not be permitted to continue to try this case in the court of public opinion rather than in the court of law, and thereby undermine the fairness and integrity of this proceeding.

    The word “integrity” leaps out here. Of course, Lauro will have to explain what that word means to his client.

    • earlofhuntingdon says:

      “In the defendant’s opposition—premised on inapplicable caselaw and false claims”

      Pretty much describes all the filings from Trump’s lawyers. They cite cases for propositions they don’t support, cite cases that have been overruled for years and are no longer binding law, misapply facts, cite wrong facts, and fail to apply the law they claim to have found to the facts of his case. It’s the sort of lawyering that deserves sanctions.

        • Fancy Chicken says:

          I think that the fact that DOJ starts with “A. Legal Background”, which goes on for 6.5 pages and chooses Gentile v. State Bar of Nevada as its primary source for its position is very much a red warning flag to Lauro & Co.

          “In Gentile a defense attorney was held in contempt of court for violating a court rule prohibiting an attorney from making an ‘extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if a lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding’”.

          DOJ explains that the ruling also precludes the defendant from making statements of material prejudice, but in this section they seem to really focus on the actions of defense attorneys.

          The fact that this is what they lead with maybe hints that Judge Chutkan can sanction the defense team for Trump outbursts as a means of enforcement to a gag order since it’s acknowledged that potentially jailing Trump for breaking a gag order would invite potential violence from his cult members.

          But IANAL so maybe I have read more into the structure of the reply and the possibility of sanctioning the defense team than is warranted.

    • BrokenPromises says:

      My take on that explanation is that it’s akin to scaling the rock of Gibraltar with the aid of smearing lard on hands and feet at every step.

  4. David F. Snyder says:

    I’m glad to see Smith make the defense eat Trump’s own words. Besides those Marcy notes, footnote 11 to the first paragraph on page 20 is very effective.

  5. Drewsill says:

    For a proposed gag order / bond condition, I’m thinking every time Trump attacks, badmouths or otherwise invites violence against a witness, the Judge removes one member from his security detail until he has only one. Not aware of any authority for doing this but strikes me as proportional and it might get his attention.

    • Peterr says:

      No authority for that at all. Federal law dictates the security protection for former presidents, and there’s nothing that would give a judge an opportunity to reduce it.

    • Rwood0808 says:

      I’m told from some reliable sources that trumps SS detail is not nearly as big as the one you see him parading around with. Some are legit SS detail, the rest are for show. The ego must be fed.

      • missinggeorgecarlin says:

        “The rest are for show”? Nice.

        I’ve got a suit and sunglasses. I dig cosplay and would love to make some extra $ on the weekends. I heard the people holding signs and cheering him down the gold-plated escalator included many extras at $50 a pop!

        Gonna check the Palm Beach craigslist and see if I can get in on this action….. I’ll even hold 3 fingers over my ear and pretend to talk into my lapel.

        [Welcome back to emptywheel. Please use the same username, email address, and URL each time you comment so that community members get to know you. You published this comment as “miss” and has been corrected this once to “missinggeorgecarlin.” Thanks. /~Rayne]

  6. sohelpmedog says:

    Underlying most if not all of Trump’s applications in this case made and said to be coming (trial date, extensions of time, recusal, change of venue) is a request to do what Chutkan has emphasized she won’t do: give Trump special treatment. Therefore, based on her prior warnings to him and his conduct since the indictment, it seems likely that a gag order will be issued. Then the likelihood of Trump’s compliance with the order is going to be in inverse proportion to either his desperation, his delusions or both. If he does violate a gag order, I would not want to be in Chutkan’s position. There is little doubt she will do what is judicious, but that may make her the target of the many deranged folks roaming this land. As the criminal cases against Trump move on, those of us not involved in these cases – as much as we pin hopes on them – need to put our efforts into the forthcoming elections.

    • paulka123 says:

      It is madness that our country, the criminal justice system, our political system must needs accept this terrorism, because that is what it is. An untouchable is thumbing his nose at the courts and the DoJ, because reasons.

      His theft of nuclear secrets alone should have him remanded without bail. His constant death threats expressed to judges, DoJ, generals, is mind boggling, or it would have been 10 years ago. the man has single handily destroyed decorum in this country and we now have to accept terrorism against our government in fear of what his followers will do when he is held accountable, like any other American would be.

      • SMF88011 says:

        Your mentioning of nuclear secrets prompts me to point out that things that are classified under the Atomic Energy Acts cannot be declassified unilaterally by a President. Items classified under AEA is marked “Restricted Data” and there were a number of documents that were recovered from Mar-a-Lago that were marked with this classification. In my 30+ years of experience working with classified documents including Restricted Data, I can name maybe 8 times that things that were considered Restricted Data being removed from this classification. Oh, and just because it is then marked “Formerly Restricted Data” doesn’t mean it isn’t still classified. It remains classified even once it becomes FRD.

  7. Rugger_9 says:

    Perhaps I’m being a butthead here (my beloved says I am their king) but did Jack Smith say J6 alone was the assault on democracy because the body of evidence extends beyond the planning for just that riot piece. The fake electors, etc. were not AFAIK involved directly in J6 at the capitol, they signed on the phony ballots that would justify the actions contemplated in the Chesebrough memo. While some of them may have joined the J6 riot those actions were not part of the principal role. If I am reading the defense yowling correctly they are trying to claim SC Smith said ONLY that Defendant-1 incited the riot.

    1. He had help from true believers, PBs and OKs running things from a war room at the Willard.
    2. Some of the witnesses and others threatened were not part of the riot piece in planning the coup d’etat.
    3. The coup d’etat is what SC Smith refers to in his motion.

    The defense needed to re-frame the picture to create the idea that SC Smith is ONLY referring to the riot so the defense can then claim SC Smith is lying and therefore the whole case needs to be thrown out.

    • Rugger_9 says:

      OT: Defendant-1 is going to court today for the other six charges in front of Judge Engoron in NYC, which will pile more dirt on the grave already made by the top charge ruled on last week. The scuttlebutt is that this isn’t a good idea but I’d be interested in what our lawyers here think about parachuting into a trial where the judge has already ruled against the defense and is already clear that he’s not amused by wat the defense has been doing (including sanctions). What does Defendant-1 hope to accomplish by doing this?

  8. Harry Eagar says:

    There is only so much that the case can be advanced. Sometime emptywheel contributor Liz Dye was floating the idea of sanctioning, even jailing I think, trump’s lawyers if they do not keep him in the corral. But that works against an earlier trial, or any trial at all.

    It’s getting closer to a situation in which no lawyer will represent him. At that point, the judge would, I suppose, appoint one?

    Esthetically and morally, it would be satisfying to see trump represented by a graduate of a midlevel law school with two years experience.

    Too bad he will continue to get special treatment.

  9. Hoping4better_times says:

    What can Judge Chutkan really do to force trump to obey the rules? Fine him? Won’t work. Jail him? Logistically, that would not work. She threatened to move up the trial, but the defense lawyers would object loudly. IANAL, but I will concede that they need time (and a miracle) to prepare for a trial in March.

    It’s been said that trump’s behavior is very like a two year old. Some of us had dealt with terrible twos as parents. When the terrible two throws a tantrum, he/she is sent to a “time-out,” sitting in a room alone.
    Chutkan could “sentence” trump to a time-out at Mar-a-largo. No travel, no rallys, no campaigning, no visiting gun shops, no visiting non-union work shops. He could travel to Court dates in New York or Georgia or sit for depositions (Cohen and Stzrok lawsuits) as required. If he is a good boy (no threats to witnesses or denigrating Judges, Courts, prosecutors etc), then she would allow him to travel outside Florida after the time-out period. No doubt, he will complain bitterly about “election interference, etc,” but Chutkan must assert and enforce her powers over a disobedient child (whoops-defendant) to maintain the rule of law.

    • Grain of Sand says:

      Could you say more specific about “logistically, that would not work?” T

      He is not a child. Seems to me that all of your suggestions would not silence him for long, if at all. What then?

  10. xyxyxyxy says:

    For decades he’s been criming with no stopping him. James is doing what should have been done decades ago with choking his ability to hopefully make any money. I don’t know what his worth is but I would hope that same happens real fast with the PACs that are funding his defense and only then we’ll clean this cancer to our well being.

    • Fancy Chicken says:

      Apparently Trump’s PAC is being drained quickly on legal fees for witnesses. On 9/28 NYT published Trump’s Sprawling Legal Defense Effort Comes Under Strain

      (I gift articled it so it will work for everyone. This is my first try at making a hyperlink, please excuse me if I fail as I can’t edit it)

      “ Mr. Trump’s political action committee, seeded with money he had raised with debunked claims of widespread fraud in the 2020 election, became the piggy bank for paying the bills, helping to knit together the interests of key figures in the investigations.”


      “But as Mr. Trump’s legal problems have expanded, the ad hoc system has come under intense strain with the PAC doling out financial lifelines to some aides and allies while shutting the door on others. It is now running short of money, possibly forcing Mr. Trump to decide how long to go on helping others as his own legal fees mount.”

      It goes on to detail just how much his PAC is struggling with ready cash and speculates about his willingness to pay for legal fees for dozens of folks from his own pocket. It’s an interesting read and may portend the end of his PAC’s ability to keep covering legal fees.

      • Rugger_9 says:

        That is something that has been suspected for a while around these parts, and Defendant-1’s ability to keep his minions in line is hugely dependent on his ability to keep buying them off. Thus, the plea deal we saw in GA, combined with the apparent refusal to cover Rudy’s bills directly, might get some of the other hangers-on to cover their asses as fast as they can. I wonder what Roger Stone is going to do?

        • Fancy Chicken says:

          Yeah, it’s been generally known that his PAC is struggling because of the requested return of 60 million asked for back after it had already been disbursed.

          I simply shared the link as it was recent and went in more depth on the problem of who to help and who not as Trump World does not want to get burned again a la Cohen style for not providing legal assistance to the “right” people.

          And mostly, I had a reason to make me learn how to do HTML markup for the first time which is kinda a helpful skill here.


      • xyxyxyxy says:

        I mean more like clawback all the money that was used for disbursements for which the PACs were not intended for, out of his own pocket.

  11. Konny_2022 says:

    The DOJ reply does not only point to Trump’s inadmissable extrajudicial remarks but also to those by his attorneys (p.16-7):

    The defendant’s motion also attempts to downplay defense counsel’s clear violations of Rule 57.7(b), and appears to suggest that the defendant’s attorneys reserve the right to violate that Rule in the future. See ECF No. 60 at 19-22. But it is uncontroverted that, on multiple occasions in the week following the unsealing of the indictment, defense counsel appeared on media programs and talked extensively about this case, including on topics that Rule 57.7(b) prohibits attorneys from discussing. See ECF No. 57 at 16 (citing Rule 57.7(b) and linking to lead counsel’s appearances). The defendant’s opposition then complains that the Court would render his attorneys inadequate if it were to restrict them from further public statements through the Government’s proposed 57.7(c) order, but fails to recognize that most of its terms mirror existing restrictions on all attorneys practicing in this District under Local Criminal Rule 57.7(b).

    I wonder how Judge Chutkan will deal with this part.

    • bmaz says:

      Chutkan will do fine. She is smart and deliberate, even though this is an extremely difficult case to navigate through.

      • Konny_2022 says:

        I don’t have any doubt about Chutkan’s competence and deliberateness. My remark was more out of curiosity about the content of her ruling in this regard. But I can wait to see.

        • bmaz says:

          Exactly right. And we will see soon enough. And it will be fascinating; am glad I am not Chutkin about now.

    • emptywheel says:

      I really think the most effective way to impose a gag is to have his lawyers vet his public speech. Trump doesn’t care about sanctions. They do.

      • Harry Eagar says:

        But he doesn’t work from a script.

        I suppose you could require them to prepare a Chinese menu: no remarks about anything on Column A; okay to talk about items on Column B.

        Then what when he wanders over to Column A?

        • earlofhuntingdon says:

          Trump’s lawyers need to keep their bar licenses. Otherwise, they turn into Rudy Giulianis or start selling pillows. They will work to keep their client compliant.

          Trump will hate the pushback, and be tempted to fire them. But there are only so many lawyers willing to work for so lousy a client. This process will reduce them further and make them more expensive, with cash up front like Kise. Or, Trump can raid the world of parking lot and slip-and-fall attorneys, always a good bet when your freedom and wealth are on the line.

          As for Plan B, should Trump ignore everybody, an early start to the trial would be good. But it can only be moved up so far. In extremis, house arrest might be available pre-trial, so long as it is somewhere within the court’s jurisdiction or to which it consents, not of Trump’s choosing.

        • Bobby Gladd says:

          Do her repeated, unequivocal, for-the-record warnings serve at all to inoculate her from some downstream BS “denied-a-fair-trial / reversible error” appeal assertions, in the event that she has to act prior to the trial?

        • earlofhuntingdon says:

          They put Trump on formal notice that sanctions are in the offing, if he continues specific conduct, which would help those sanctions, if any, survive appeal

        • Fraud Guy says:

          To some degree, IIRC (& IANAL), new attorneys would have to file for appearance at this point and the court approve them, as well as filing to withdraw, even if fees are not being paid. To some degree, they are in this now unless the judge says otherwise.

        • earlofhuntingdon says:

          The principal issue is whether changing a lead lawyer would cause delay. A judge would almost certainly not approve of a delay of game for that purpose.

        • Myra_Bo_Byra says:

          With regard to Chutkan, she is very smart, very deliberate, and she clearly understands the downside with overreacting to Defendant-1’s provocations. He is clearly crossing the line to goad her into a gag order he can use to further try his case in public. The leverage she does have is on his money, and on his attorneys. Fining him now is going to be more painful, because of the NY case and others which, as the NYT is reporting, is already impacting his cash flow. Fine Trump HEAVILY. And also put his lawyers to work, as someone earlier has suggested, to pre-clear comments, fining them heavily for remarks that are outside the lines Chutkan draws. IANAL but can his
          lawyers just resign from a criminal case? And moving up the trial date might give him the chance to appeal, but if that happens after an election he loses, fine by me. IANAL nor am I objective. The law is important. A fair trial is important. But sometimes common sense needs to prevail. He cannot be permitted to continue to ride roughshod over the legal system. He is obviously using his campaign as a get-out-of-jail-free card in more ways than one.

        • bmaz says:

          No, lawyers cannot just resign without leave of court. Am not sure you can hold his lawyers responsible for things he says against their advice.

  12. flounder says:

    Who is the connection to Rupert Murdoch in this 1/6 portion of the scheme, who entered the conspiracy with an in-kind donation to the Trump Campaign of fraudulent Release the Krakken promotion, an $800 million donation to Dominion, and his own interest in improving ratings with the Fox “cousin-fucking terrorist” audience (as characterized by Tucker Carlson’s former producer)?

  13. Amicus12 says:

    Judge Chutkan continues to have a light calendar in January – a J6 misdemeanor trial and sentencing – and a vacant calendar in February. Lots of different ways this could go, including the acceleration of the trial date.

    • gertibird says:

      Yes. She has told them she will do that if they violate her order not to threaten people or talk about the case. Trump and his lawyers have violated both. So the best way to make it clear to them that when she says she will do something if they violate a ruling is for her to impose the “punishment” she warned them they would get, in this case moving up the trial date. My question is how much will she move up the date. As I’ve previously said I would really like to see it start in Jan’2024.

    • Myra_Bo_Byra says:

      IF Defendant-1 keeps it up, Chutkan should accelerate the trial date because it is clearly in the public interest to do so. IANAL, but clearly the prosecution could respond to any appeal with a boatload of evidence that the decision to move the trial date up was warranted and reasonable.

  14. WilliamOckham says:

    I would call everyone’s attention to this line, which Marcy highlighted above:

    the defendant exploited the disruption in furtherance of his efforts to
    obstruct the certification

    The disruption is, of course, the violent attack on the Capitol. That statement is Jack Smith’s team asserting that Trump’s conspiracy to obstruct the certification incorporated the violent uprising against the government on January 6th, 2021. Assuming that is proven in court, I would argue that any public official who participated openly in Trump’s efforts to obstruct the certification before and after the attack on the Capitol could be subject to a civil process to disqualify them from public office, irrespective of criminal charges.

    Obviously, there’s a lot of legal and political challenges to that approach. Personally, I think that the biggest mistake that anti-authoritarians can make is to surrender in advance. The way of nonviolence must include using every tool within the system, whether legal, electoral, or peaceful resistance.

    • bmaz says:

      Just some half baked “civil action”? If that occurs, it will be the biggest blow to due process and fundamental fairness since the gratuitous post 9-11 torture regime. If this occurs this country is a complete joke.

      • WilliamOckham says:

        In Texas, every voter has standing to challenge a candidate’s qualifications for any office representing that voter. There is literally no due process issue at all. I don’t know what you’re going on about.

        • bmaz says:

          That is the most fucked up thing I have ever heard. No single voter or piss ant group should ever have that kind of ludicrous standing. I don’t know what “you” are “going on about”. From second one, I have been concerned that crazed people trying to get Trump will shit on the rule of law in the process. It is gross and depressing. This one man is not more important than maintaining a sane rule of law. And, yet, people are advocating this complete insanity.

          You see what the House GOP is doing to Biden? The door for that was left wide open by the two hopeless Trump impeachments Pelosi stunted and curbed. That will be child’s play when any idiot in Texas, and any other state that permits such tomfoolery, can, via civil process, shift an election via this garbage. This is about a LOT more than Trump, and people need to grok that.

          By the way, there is one hell of a huge difference between challenging basic “qualifications” to run for an office and precluding, via an outrageous civil taking, a putative candidate’s right to seek an office otherwise qualified for. What you advocate is one of the most stunning things I have ever seen or heard of. But, hey, nobody ever believed me when I started warning of the slippery slope the 4th and 5th amendments were on in the 80’s. Congrats, this stupid slope is now well beyond that. I am not sure that people who do not practice criminal law have any clue on this damage.

        • WilliamOckham says:

          I completely agree with you that this about a LOT more than Trump. I’m not talking about Trump. Donald Trump isn’t actually on the ballot in Texas, his electors are.

          I’m talking about Ted Cruz. Whether or not Ted Cruz is eligible to run for the U.S. Senate is a question for the State of Texas. Whether he is eligible to serve as a U.S. Senator is a question for the U.S. Senate. I would have preferred that they had expelled him on January 7th. That didn’t happen.

          The State of Texas has given me the opportunity to challenge that. Your opinion doesn’t count, unless you want to move here.

          I’m not shitting on the rule of law. I’m defending it. I think your view is misguided. I’m trying to use every tool available to defend our democracy against people who want to end it.

          Your attitude towards the Trump impeachments is telling. The causal claim you are making is totally fucked up. It’s exactly the sort of surrendering in advance that will lead to authoritarian rule in the U.S. I know that’s not your goal. We’re on the same side. We disagree about tactics. I’ve got no problem with that.

        • bmaz says:

          What a load of crap. I have been saying this forever, and you know it. No, you are “defending” nothing but rote idiocy. Careful for what you ask for. By the way, my opinion does count. Because we have addressed that here already. And the argument was a dead nuts loser in our Supreme Court in Hansen v. Finchem:

          “Arizona Supreme Court No. CV-22-0099 determined that: 1) Congress has not created a civil practice right of action to enforce the Disqualification Clause, and the criminal statute prohibiting rebellion or insurrection, 18 U.S.C. § 2382, does not authorize the challenge by a private citizen; 2) A.R.S. § 16-351 does not provide a private right of action to argue a candidate is proscribed by law from holding office; 3) it is unnecessary to decide if the Amnesty Act of 1872 is applicable because no private right of action exists under the United States Constitution or Arizona law; 4) the Constitution reserves the determination of the qualifications of members of Congress exclusively to the U.S. House of Representatives; 5) the doctrine of laches is not applicable at this time; 6) Plaintiffs do not satisfy the legal standards for injunctive relief; and 7) there is no need for an advisory trial. Plaintiffs timely appealed. The Court, en banc, has considered the briefs and authorities in this appeal, and agrees with the superior court that Plaintiffs have failed to state a claim upon which relief may be granted.”

          We may not be as crazy as Texas here, but are often close. The decision was correct and telling. Not every Tom, Dick or hairy loser gets to pull off this garbage. Doubt your opinion will make it through Texas courts, much less SCOTUS.

        • WilliamOckham says:

          I’m done with this particular conversation. If you don’t want to engage with what I’m actually talking about, that’s fine. You can have the argument with the strawman in your head.

        • Ithaqua0 says:

          The State of Texas has given you the opportunity to challenge whether someone meets the legal qualifications to hold a particular office, e.g., “be 18 years of age or older on the first day of the term to be filled at the election or on the date of appointment, as applicable;” (from the Texas Election Code, sec. 141.001(2),) etc. Since Ted Cruz does, and there really isn’t any question about it, your challenge, should you make one, would accomplish nothing except to annoy some people.

        • WilliamOckham says:

          The legal qualifications to hold the office of U.S. Senator are defined in the U.S. Constitution. You’re welcome to your opinion. It does not accord with the case law in Texas.

        • bmaz says:

          No, it really did not. But, hey, thanks for the advice. I still go to actual trial and appellate courts every week, they are pretty much working just fine. Tell me “Xenu”, both state and federal, how often are you in any of them?

        • Rayne says:

          Says the user with (7) published comments under this username publishing from a static IP in Canada.

  15. Time Enough says:

    As time moves on, the idea send very reasonably that Trump chose to use a bail bondsman, rather then pay the bail himself, because he expected to fail to comply with requirements of the bond.

  16. Dopey-o9 says:

    There is nothing that can restrain / contain Trump’s tongue. If Trump is so afraid of going to prison, perhaps Chutkan can remind him that every instance of him violating her orders can add time when sentencing is set.

    “September 28, 2023: threatening Gen Milley. 90 days additional time to be served.”
    “August 30, 2023: harrassing DA Fani Willis. 90 days additional time…”

    • bmaz says:

      No, that absolutely cannot be done. That would be pre-judging sentencing before there is even a conviction. People are simply out of their minds on this. Take a chill pill and let the court deal with it.

    • Dopey- o9 says:

      Said that’ll be cash on the barrel head son.
      You can take your choice, you’re 21.
      No money down, no credit plan.
      No time to chase you, ‘cause I’m a busy man.

      The Louvin Brothers (h/t to Graham Parsons)

  17. PostToaster says:

    I’ve read that Chutkan can’t (practically; politically; whatever) incarcerate Trump. But I still wonder if she couldn’t do it for one day a week, which could even be his choice. That’s for a first offense, and might last a month unless there are further offenses.

    This “seems” so minimal, gradual, and reasonable that his base couldn’t go nearly as crazy as for full incarceration. But it’s guaranteed to stop his assaults very quickly if not instantly.

    • montysep says:

      There are far too many entertaining clips from Court TV of “sovereign citizens” being uncooperative and disruptive before a judge. Often the Judge will charge them with contempt right there on the spot and have the bailiffs take them into custody. It is remarkable to see how those defendants’ demeanor has changed in their subsequent appearance. Often the formerly sovereign doesn’t even have to stay overnight to sober the heck up. They are brought back before the court later the same day with an introduction along the lines of “So and so gave it some thought and would like to address the court…”

      It’s going to take a novel approach by Chutkan to ensure the public interest in a fair proceeding free from the kind of tampering we’ve seen. Given what we’ve witnessed of Chutkan and her talent we’re super curious and can’t wait to see what she arrives at. Your suggestion is the wisest I’ve come across and it raises the possibility of other similar options. It is along the lines of the creativity and nuance I expect Chutkan will arrive at to restrain this man-child. It echoes Chutkan’s previous statements where she gave the defendant personal agency over potential outcomes. Thanks

  18. Hug h roonman says:

    WAY Off topic… maybe not so much.

    For all his pathology donald is a master at projection, blurring reality and fantasy.

    THIS is astonishing… reality shimmers and blurs at THE SPHERE in Vegas.

    “Blown by the wind
    Oh, when I go there
    I go there with you
    It’s all I can do”

  19. Zinsky123 says:

    Yes, DOJ has done a good job of summarizing a complex series of events in a short few sentences. That is good. The modern conservative mind does not deal with complexities well. I have had conservative friends tell me Donald Trump did nothing wrong on 1/6/21 because “he never directly told anyone to attack the Capitol or any of the police there”. I agree with Jack Smith’s team that it was a stairstep, cumulative series of lies and exhortations that led from Trump’s late night tweet in December 2020, about “will be wild” to the QAnon Shaman howling on the floor of the Senate. As far as silencing Trump, his only real megaphone is Truth Social – why isn’t that crappy messaging application in bankruptcy – for Chrissake? If that ridiculously stupid and derivative platform were shut down, Trump would have nowhere to go but Xwitter, which I guess might be worse! Oh well….

    • SteveBev says:

      There are two key components to the Government argument against Trump which they make over and over
      1 the campaign of lies and
      2 the exploitation of the resultant disorder for his ends

      What is also noticeable is that the Government is wise to and not afraid to mention the Trumpian PR tactics of feeding his base some red meat, and then have someone feign a retraction or otherwise walk it back see
      Footnote 9 as quoted above, and the paragraph in the reply to which that footnote pertains pp 13 and 14 – the “If YOU GO AFTER ME …” etc tweet the Government point out that Trump is a master at making inflammatory statements (or eg retweeting approvingly others’ inflammatory statements) and seeking to avoid accountability for them by either hedging them himself or having others do the hedging for him.
      It is about signal and noise.

      The Government by this means avoid getting into arcane arguments about eg did the words on the ellipse constitute incitement as a matter of law.
      The focus on the fact that Trump and his acolytes used lies and inflammatory language, the crowd was stoked to anger, the anger turned to violence, and Trump exploited the violence. It is therefore besides the point as to whether Trump ‘intended’ violence when he spoke, whether the occasional circumlocutions in the speech gave him plausible deniability.
      When the mob engaged in violence to stop the count, he embraced their actions and used it for his own purposes.

      And the Government draw direct parallels between that campaign to discredit the election and disrupt the transfer of power with his present campaign the disrupt and prejudice the judicial process by which he is being held accountable

      Note the language in the. Government response

      ““The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.”

      “B …
      The proposed order … is …necessary … under the circumstances … the defendant himself has created by waging a a sustained campaign of prejudicial public statements against witnesses, the court, the district and prosecutors. To argue otherwise the defendant’s opposition [filed by his lawyers] ignores the substantial record of the defendant’s prejudicial statements, misstates the facts, and claims the proposed order imposes restrictions it clearly does not”

      Note too that the campaign of lies leading up to J6 involved conspiracies entered into by lawyers to misstate facts and the law in public and in court filings and to other officials.
      Cf the position of defence attorneys in the present matter, who have repeatedly misstated law and facts to enable Trump to pursue a strategy of false statements inflammatory language designed to intimidate persons and interfere with the course of justice.

      • Martin Lydick says:

        Somewhat like that infamous “worthless” (get out of jail card) paragraph in all of tfg’s statements of financial worth that states (paraphrasing) “but hey, you can’t really rely on any statement contained herein that asserts any financial fitness of applicant…, reviewer is cautioned to conduct their own due diligence, but I ain’t gonna help you.”

        [Welcome back to emptywheel. Please use the same username, email address, and homepage URL each time you comment so that community members get to know you. You omitted the number from your email address or used a different email address this time, creating a new identity requiring moderation. Please also omit entering anything in the URL field as your first comment published here did not contain a homepage URL. Each time you enter “n/a” in that field it requires moderation. /~Rayne]

        • SteveBev says:

          The NY case is a brazen example of corporate fraud, and the behaviour of the Trump lawyers clearly unethical. Bad stuff, but well within the experience of the courts to deal with.

          But the J6 stuff and Trumps efforts to avoid the accountability that the DC indictment represents is orders of magnitude more significant for democracy and the rule of law.
          The questionable conduct of Trumps lawyers within those proceedings creates a whole different level of problems. The Trump strategy appears to be to create as much controversy both inside and outside the court as possible, with the ultimate aim of spinning out the process hoping that he can regain office and then shut it down. The attorneys also seem to be deliberately pushing the boundaries (indeed going beyond IMHO) to goad the Court into sanctioning them. They all seem hell bent on manufacturing Due Process controversies. This all requires careful judgecraft, because to hold Trump accountable like any other citizen, requires recognition of the reality that his particular trial strategy is based upon regaining and abusing the powers of the presidency,

          If Trumps lawyers were to be sanctioned and sanctioned repeatedly, say, would Trump subsequently attempt to represent that there had been ineffective assistance of counsel – remembering that all he perhaps needs to do is generate issues he can spin out litigation upon? They don’t have to be good arguments, just good enough for the purpose.

          Trump burns through lawyers, and for some reason plenty seem prepared to be immolated in his service.

  20. Rayne says:

    You really need to spend some time focusing on your own backyard — much of which is unceded or stolen First Nations’ land, generating lots of CO2 and other pollutants from oil extraction, while fomenting its own brand of violent white supremacy.

    You laugh at your neighbors to the south but it means you’re not paying much attention to how we got here and how very parallel Canada’s development has been. As if Americans didn’t notice the House Speaker stepping down after the Nazi praised in front of Zelenskyy, or the assassination of a Canadian Sikh by India on Canadian soil.

  21. The Old Redneck says:

    We’ve now learned that Cassidy Hutchinson said Trump was in favor of Pence being hanged by the Jan. 6th mob. Does this level of astounding cruelty and disloyalty matter? Well, Trump’s lead against his primary rivals is bigger than ever. And he is in a dead heat in a hypothetical contest with Biden.
    A decade ago, far less repulsive behavior would be disqualifying. It makes one wonder what this country has become. Courtrooms may be the one place left where the truth still matters, which is why Trump spends so much time disparaging them.

    • MWFfromSAT says:

      Seems like trump’s behavior is always the issue. They will never incarcerate him pre-trial…and they won’t do anything that might delay the trial(s). But the constant lies & threats, is abnormal behavior…So why couldn’t the Judge issue an order for an extensive psych/neuro-evaluation for Trump to include a daily drug test? I don’t think he’s legally insane (I am not an attorney), but he sure exhibits signs of being deranged.

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