The Holding Pattern on the Non-Trump January 6 Charges

There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

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59 replies
  1. Peterr says:

    Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target.

    I can see why a defense lawyer would whine about this. “Tell me if you have suspicions about my client’s behavior that I should be worried about, please, and share the evidence you have that leads you in that direction.” I can also see why Jack Smith et al. at DOJ would laugh upon reading about these lawyers. “Maybe you should ask your client, rather than us.”

    I smell fear emanating from the defense table.

      • Peterr says:

        It’s also common sense to recognize that you aren’t going to get an answer. I can think of only two reasons to ask this question. First, to be able to anonymously whine about this in the media, to try to create public sympathy for the client(s). Second, to be able to track down the source of any leaks within the client’s criminal enterprise. . .

        “I’m here as Mr. Capone’s attorney, and would like to know why you think my client is a subject and not a witness. Could you please let me know who squealed . . . I mean, let me know who is spreading vicious lies . . . I mean, let me know who is apparently seriously misinformed about my client’s activities? It would be a shame if anything were to happen to them, and I’d like to make sure they are appropriately cared for.”

              • Peterr says:

                Seriously: it does what? I honestly don’t understand here. What’s so important about getting the DOJ to say “we’re not going to tell you why we think there is something untoward about your client’s behavior” on the record?

                • bmaz says:

                  I’m sorry, what about always protecting your client’s record for the future do you not understand? Why would you “not” do that? This is just a useless discussion.

                  • Peterr says:

                    I don’t see what you are putting on the record here, other than “I asked this, so that no one could later claim that I didn’t ask but should have.”

                    I understand the general concept of protecting the client’s record for appeals, but don’t see the specific application in this case. What exactly is being protected here?

                    • bmaz says:

                      What a load of shit. Yes you make that record. But this is why lawyers go to court and others yap on a blog.

                • Tech Support says:

                  Probably should not be inserting myself here but it seems like one thing that happens in legal matters that I see reflected in corporate life is the idea that

                  “If you had a problem with this you should have brought it up before, too late now buddy.”

                  The value of getting your questions/suggestions/objections down in writing is that you’re giving yourself receipts for future arguments. (Like appeals among other things, I would suppose.)

            • Rugger_9 says:

              Perhaps a valid appeal point or maybe the so-called perjury trap defense. There may be some other things to consider here.

              SC Smith may be working on more flips. We won’t know until deals are announced because Smith runs a tight shop.

              Note also that the DC case was very narrowly defined precisely to avoid the ability of Defendant-1 to use his minions’ cases to create delays in accountability. Even allowing for Cannon’s interesting orders about SCIFs the number of defendants almost guarantees that some will flip like Employee-4 and some will demand graymail discovery like Nauta has. Those lead to IMHO legitimate reasons for hearings, which take time to brief, argue and rule.

              • timbozone says:

                Maybe SCO has some flips and forewarned is forearmed? The continuing public designation by SCO of many potential defendants and witnesses as “subjects” makes it much more difficult for defense counsel for non-flipped potential targets to game out who may have flipped already. As more potential defendants flip, proffers of testimony in exchange for leniency for remaining non-flippers will very likely seem less and less appealing to the SCO. “Sorry but this is way too late…not precisely sure why you guys waited so long but we really aren’t needing what your client is now offering us in exchange for leniency…”

  2. Amicus12 says:

    In a related none of this will matter vein, Judge Cannon issued the following order that throws a large monkey wrench in the NDI documents case schedule.

    PAPERLESS ORDER: The parties are advised that production of classified discovery to defense counsel is deemed timely upon placement in an accredited facility in the Southern District of Florida, not in another federal district. It is the responsibility of the Office of the Special Counsel to make and carry out arrangements to deposit such discovery to defense counsel in this District, in consultation with the Litigation Security Group for security purposes. The Office of the Special Counsel shall update and/or clarify any prior responses to the Standard Discovery Order in accordance with this Order. Signed by Judge Aileen M. Cannon on 10/17/2023. (AMC) (Entered: 10/17/2023)

    DOJ has said that there are certain documents of such sensitivity that cannot be moved from DC and must be viewed in situ.

    I have not gone back to see whether Judge Cannon’s order comports with the CIPA protective order and whether it is subject to interlocutory appeal.

    But Smith & Co. face another new – and unwarranted – hurdle.

    • emptywheel says:

      Actually it won’t. The DAY BEFORE she issued that order, DOJ had submitted a filing noting they were all in the FL SCIF, and could have been the week earlier.

      • earlofhuntingdon says:

        Cannon seems to be trying to create the appearance that it is the DoJ that is dilatory and not playing fair. Unusual behavior, it would seem, for someone who spent seven years as an appellate litigator for the DoJ, in the SDFL. Also distracts from her own pace in completing the Garcia hearings and in keeping the schedule for this case moving. Won’t cause Smith’s team to miss a beat, or likely the 11th Circuit, but it creates a popular impression.

        • Sheesh49 says:

          My understanding from my law school classmate who worked with Judge Cannon in Miami DOJ is that she wrote appellate briefs–she was not a litigator by any means. They were all dumbstruck when she was appointed as judge.

          • bmaz says:

            Lol, that is mostly a line of crap. Check her background. Cannon is hardly the naif you, and your supposed friend, make her out to be.

      • Amicus12 says:

        Sure enough, on p.6 of the Government’s October 16 Opposition to Defendants’ Motion to Extend Deadlines:

        “In the meantime, the CISO informed the Government and the defense that the defense SCIF and a second Florida location had been approved for review and discussion for all classified discovery, resolving the outstanding access issues—another fact that the defense omitted from its pleading.”

        Gullible me for thinking the Judge was on top of things.

        • John Paul Jones says:

          Rank speculation on my part, but Cannon strikes me as the sort of person who is so insecure that she will explode at the least hint that she has missed something, or is ever less than 100% competent. It’s the kind of thing that severely impacts a person’s ability to learn quickly, to adapt to changing circumstances.

          • earlofhuntingdon says:

            She doesn’t strike me as being that vulnerable at all. Her academic and earlier professional experience would also argue to the contrary.

          • bmaz says:

            People need to curb the yakking as to Cannon. A lot of District judges are very bad. Cannon has quite a background. Her judicial record is bigger that the Trump paranoia so feeding the hysteria.

                • earlofhuntingdon says:

                  The first question you learn Not to ask when working with someone in a language in which they are not fluent is, “Do you understand?” For a multitude of psychological and personal reasons, the virtually inescapable answer is “Yes.” It leads to a cascade of misunderstanding.

                  The alternative is usually to ask questions that can be answered only if someone does understand, but which present fewer risks to the ego. Language teachers and corporate trainers, for example, do this all the time. They use it when presenting new ideas, too, because of the probability they will be met with emotional resistance.

                  It’s takes talent, time, and patience, which are often in short supply. But it’s more reliable. Understand?

                • JonathanW says:

                  As usual, I should disclaim that I’m not a lawyer, but every since I saw the coverage of this hearing in the NY Times, I’ve been curious about something: the coverage is talking about an “admonishment” by Judge Cannon, and how much of a big deal it is. But from what I can tell from reading the more detailed, transcript-like coverage linked here, it just seems like she’s annoyed that the gov brought up issues they didn’t raise in their brief, which she implies isn’t fair to the defense as they didn’t have fair warning of the argument to argue against things. The prosecutor implies that he thinks he should be allowed to raise new arguments because he just has to brief the minimum to get to the hearing.

                  Judge Cannon’s reaction is to postpone the hearing, suggesting that, at least, she wants to only bring things up that were briefed, and that the prosecutor was wrong to think he could raise new issues in the hearing without briefing them.

                  Again, I’m not a lawyer, but it feels to me like she’s got a point, that they could have written this in their brief. Perhaps the SDFL procedure accounts for this or doesn’t in some way, so I’d be curious to understand who is actually right or wrong on the procedural point. But it does strike me as unfair to surprise a defendant with a new argument they aren’t prepared to defend. Am I missing something?

                  Also, she didn’t rule in anyone’s favor, right? She just delayed the argument?

                  I’m not trying to argue that Judge Cannon is or isn’t in the bag for Trump, to be clear. I’m just trying to understand the actual import of what happened here.

                  • earlofhuntingdon says:

                    You describe the meaning Parloff intended to convey. Reading Marcy regularly would fill you in on the things other journalists leave out.

                  • emptywheel says:

                    I did a post on it, but the Tl;dr is that the earlier briefing was to GET a Garcia hearing. She never asked anyone to brief WHAT she should include–until after the abandoned hearing.

                    • JonathanW says:

                      Thank you both for the reply. I’m a regular (eager refresher, more than daily) reader of this site since 2017 but I didn’t get this nuance (about asking for briefing on getting a hearing, not what should be considered in the hearing) which perhaps I should have understood better from previous posts. I’ll go back and re-read! :)

                      I should say that, as earlofhuntingdon says, one of the things I appreciate the most about this site is how Dr Wheeler (and everyone else, contributors and commentors) covers things that others miss, I feel very grateful to all of you for that.

                    • JonathanW says:

                      Oh, and I now see that, perhaps, by “I did a post”, you meant there’s a newer one. Just read that! Clearly I don’t refresh enough :)

              • bmaz says:

                Implosion? You ever dealt with federal judges? No? But, thanks for the help. I am sure you have far more criminal justice experience than Cannon. Otherwise you would just be spewing shit out of your ass.

              • earlofhuntingdon says:

                From Parloff’s recollection of Cannon’s examination of De Oliveira:

                Cannon now turns to De Oliveira.

                “Were you able to fully understand what Mr. Harbach was saying?”

                “To the best of my knowledge.”

                “He says there’s not only a risk of pulling punches in cross, but a risk he can’t attack the credibility of witnesses.”

                “Yes.”

                “To the best of my knowledge,” is circular and unreliable. Adding boxing analogies to the language soup was probably not helpful. But a lot of people and judges would fall into the same trap.

                As to Cannon’s ire at Harbach’s supposedly adding something new that hadn’t been briefed, she seems to be exaggerating a minor problem. Loyalty, confidentiality, and conflicts issues would be well known to every lawyer in that courtroom, who hadn’t fallen asleep through the multitude of mandatory CLE courses that discuss it. The person unfamiliar with it would be the defendant she was examining.

              • David F. Snyder says:

                Reading the transcription, I get why she was annoyed now. This is a high profile case and she’s attempting to maintain due process in her courtroom. If Harbach/SC/DOJ had these notions he brought up in court before he filed the papers on conflict of interest, then she’s right about protecting the rights of the defendant for the defense to be aware of the arguments being made in the courtroom. If those notions were after the filing, then (not being a lawyer I don’t know what recourse DOJ has but) I presume they can file a new related motion or amend the previous motion?

                Then, I don’t blame the SC filing notice of compliance even before Cannon’s order was issued. There’s no point in waiting. And yet the order needs to be on the record, so not really a big deal about the timing that I can see (though it may cause some more whining about Cannon).

                Given that our next PotUS could be Trump, I’d rather her be tough on the DOJ prosecutors than not. They have experience in these matters and Trump’s previous lawyers have not always had such. So good on her for having concern for criminal defendants, even if it’s a reprobate like Trump.

                • earlofhuntingdon says:

                  There’s no blame to put on the SC concerning its compliance, “before Cannon’s order.”

                  The SC was already obligated to arrange SCIFs in SDFL where all relevant docs could be reviewed. They were already in the process of making available the few remaining highly sensitive docs that had remained in DC. They did so and informed the court and defense counsel.

                • BRUCE F COLE says:

                  She said briefs may be called for. They should definitely be, unless she dismisses the loyalty barrier outright, as so incohate as to be out of hand.

                  This is definitely a govt fuckup in that they did spring a large amount of new material on the defense team. She handled most of the hearing very well (kudos to bmaz), although I think simply pausing the hearing and taking the lawyers into her chambers and making that determination there would have worked better.

                  Yet doing it all in open court meant that Nauta did hear some shit in the back and forth that he may not have been aware of regarding Tevaras, and now he has a pause to think about the conflict issue a bit more. This may have the opposite effect I mistakenly assumed it would have, the “implosion,” that is. But the govt fucked up, it pretty clearly appears, imo. They should apologize, imo.

                  • earlofhuntingdon says:

                    Your last paragraph is what a Garcia hearing is supposed to cover. See Marcy’s latest.

                    If the govt screwed up, it was not as badly as Cannon made it appear to be and no apology is due.

        • earlofhuntingdon says:

          Leaves open whether “being ready” and containing all the required documents on site are the same thing. That defense counsel omitted mentioning that they were informed the SCIFs were ready would be consistent with their delay-whinging.

          • Purple Martin says:

            Yes. So, yesterday Judge Cannon introduced ambiguity with an order by not making clear whether it’s sufficient to state “the defense SCIF and a second Florida location had been approved for review and discussion for all classified discovery,” or whether her “is deemed timely upon placement in an accredited facility in the Southern District of Florida,” only means present now in a Florida SCIF.

            • earlofhuntingdon says:

              I thought she was clear: compliance is when the relevant documents are in SDFL and available for review by defense counsel.

              That they might be available for use in another district would be non-compliant, as would that the SCIFS in SDFL were ready, but that all the docs were not in them and available for review.

  3. Rugger_9 says:

    OT, sort of.

    Jeffries 213, Jordan 198 someone else 22. Gym did worse, so let’s see how the House decides to proceed with the things they need including investigations.

  4. RipNoLonger says:

    The first thing I thought when reading “The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.”

    Is that the SC has already obtained all necessary/sufficient material to proceed with the investigation without needing any additional material via a subpoena.

    Is this a possibility and would we know if it was true. If it is true then I would expect most of the defendants to be quite concerned.

  5. Konny_2022 says:

    Just discovered a letter from the clerk of the DC USCA to Lauro that Lauro is not a member of the bar of that court (https://storage.courtlistener.com/recap/gov.uscourts.cadc.40232/gov.uscourts.cadc.40232.1208562377.0_2.pdf).

    Are there different bars for the federal district courts and courts of appeal?

    According to the “Parties and Attorneys” tab on Courtlistener, only Lauro is mentioned as Defendant-Appellant representation so far (https://www.courtlistener.com/docket/67891889/parties/united-states-v-donald-trump/).

    What does this mean for the interlocutary appeal?

    BTW, Lauro’s homepage asserts bar admissions in NY, DC and FL.

  6. WilliamOckham says:

    I missed this post when it was published and I’m just now catching up. I certainly care about what happens to Trump’s co-conspirators. The coup is on-going and criminal charges against them are absolutely essential if we hope to ever have a legitimate government. Of course, as you point out and Jack Smith obviously understands, the criminal charges won’t matter if Trump gets elected President in 2024.

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