Like Taylor Taranto, Trump Tries to Excuse Threats by Invoking the First Amendment

The government responded to Trump’s motion to stay Judge Tanya Chutkan’s gag order.

As many people note, it cites the new threats Trump has made — against Judge Arthur Engoron’s clerk (for which the judge fined Trump $10,000 yesterday), against Mark Meadows — since Chutkan temporarily stayed her own order. DOJ used those examples to show that as soon as Chutkan stayed her own gag, Trump resumed his normal incitement.

I find two footnotes raising things that happened months ago more telling. First, a footnote describing the Trump supporter charged with making death threats against Judge Chutkan herself, along with Sheila Jackson Lee, presented as yet another example of how Trump’s attacks lead to credible threats.

Such risks are far from speculative here, the Court found, given uncontradicted facts submitted by the Government showing that when the defendant “has singled out certain people in public statements in the past,” it has “led to them being threatened and harassed.” ECF No. 103 at 66-67.1

1 Shortly after being assigned to the case, the Court itself received a racist death threat explicitly tied to the Court’s role in presiding over the defendant’s case. See United States v. Shry, No. 4:23-cr-413, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023) (caller stating, among other things, “‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, b***h. . . . You will be targeted personally, publicly, your family, all of it.’”). This incident, like many of the others the Government cited, was widely publicized and surely well known to the defendant.

And then, a footnote describing how Jan6er Taylor Taranto, a Navy veteran with long-standing mental health issues, invoked the First Amendment after he responded to Trump’s publication of Barack Obama’s DC address by stalking the former President’s Kalorama neighborhood in a van with (locked) weapons.

7 The Government’s submissions, while extensive, did not purport to be a comprehensive account of every occasion when the defendant’s public targeting of perceived adversaries has resulted in threats, harassment, or intimidation. The public record is replete with other examples. See, e.g., United States v. Taranto, No. 1:23-cr-229, ECF No. 27 at 4-6 (D.D.C. Sep. 12, 2023) (affirming detention order for Taranto and explaining that, after “‘former President Trump posted what he claimed was the address of Former President Barack Obama’ on Truth Social,” Taranto— who had previously entered the Capitol on January 6, 2021—reposted the address, along with a separate post stating, “‘See you in hell, Podesta’s and Obama’s’” [sic], and then proceeded, heavily armed, to the area the defendant had identified as President Obama’s address, while livestreaming himself talking about “getting a ‘shot’ and an ‘angle,’” adding, “‘See, First Amendment, just say First Amendment, free speech’”) (quoting Taranto, ECF No. 20).

Here’s more of the Taranto detention memo from which DOJ cited.

Taranto parked his van on the street and began walking around the neighborhood, continuing to film. Taranto made several references to “the Podestas” and stated several times that he was trying to get an interview. Taranto’s continued narration made it clear that he intended to access or enter the private residences of his subjects. For example, Taranto panned the camera to show several sewer grates on the street – calling them “entrance points,” and stating that the grates were an “entrance” to reach “them.” Throughout the video he also stated,

“So if you go down there, there’s obviously tunnels down there. I don’t know how close they’ll get you in terms of access;”

“We’re gonna find a way to the tunnels, underneath their houses;” and,

“We’re looking for tunnel access so we can get the interview, in case they try to weasel their way out. No in or out now! See, First Amendment, just say First Amendment, free speech. Free, it’s free.”

Throughout the video, Taranto repeatedly attempted to couch his actions in terms of “First Amendment” or free speech, as if he believed that simply saying the words, “First Amendment” absolved him from any trespass. When initially approached by Secret Service, Taranto stated, “Hello, just trying to get an angle, for First Amendment, free speech. Thanks. That’s Secret Service, she’s alright.” He also said, “See how it works? Just say, ‘First Amendment.’” Taranto made additional concerning statements during the video including the following statements about getting a “shot”:

“Gotta get the shot, stop at nothing to get the shot. This is where other people come to get the shot;”

“We’re gonna see what we can get, as a shot. If I were them, I’d be watching this, watching my every move;” and,

“This is where everyone goes to get the shot. It’s just me today though. This is an easy way around. Yeah, they can’t stop me from walking through here. Just don’t step foot on the street.”

Regarding getting an “angle,” Taranto states several times, “Let’s see what angles we can get,” and, “Just trying to get an angle, for First Amendment, free speech.” Additional concerning statements included:

“I don’t have any ID, so in case I get detained or something, they’re just going to have to use their cellphone to figure out who I am.”

“So yeah, more than likely, these guys also all hang for treason. See how I said that? You gotta be very safe and careful. Someone warned me.”

“I control the block, we’ve got ‘em surrounded.”

“Oh, is this intimidating? I don’t think so.”

The reference to the threat against Chutkan puts that example into the record before the DC Circuit hears this appeal. DOJ provided the reference to Taranto (Judge Carl Nichols’ affirmation of his detention order post-dates when DOJ initially submitted this motion on September 5) to support this passage, in which DOJ notes that the catalog of past incitement it has presented thus far is in no way comprehensive:

The defendant does not meaningfully dispute the accuracy of any of these findings. Instead, he first argues (ECF No. 110 at 8-10) that they lacked adequate evidentiary support. But the Government’s uncontradicted filings (ECF No. 57 at 2-13; ECF No. 64 at 9-12) documented a long history of targeted tweets as well as a litany of individuals who have described (sometimes in sworn testimony) the repeated and foreseeable effects of his targeting. E.g., ECF No. 57 at 3 (quoting congressional testimony stating, “After the President tweeted at me by name, calling me out the way he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail you could imagine. That was what changed with that tweet.”); id. at 5 (quoting congressional testimony stating, “[W]hen someone as powerful as the President of the United States eggs on a mob, that mob will come.”).7 As the Court explained, these citations to public statements and testimony were “[u]ndisputed,” ECF No. 105 at 2, and there was no need to submit the same material as part of an affidavit, ECF No. 103 at 57. Cf. United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (per curiam) (holding that the parties may proceed by proffer at a detention hearing). The factual findings here were adequately supported and readily distinguish this case from Ford. Cf. Ford, 830 F.2d at 597 (noting that the order was issued sua sponte); id. at 603 (Krupansky, J., concurring) (noting the absence of factual findings). And the defendant will not be able to demonstrate that they are clearly erroneous on appeal.

The Chutkan and Taranto examples reinforce the overall point DOJ makes with this filing: Trump has not contested the proof in their original submission that after he targets people, the mob soon follows.

He has simply ignored that evidence.

Indeed, I called John Lauro out for ignoring that evidence in real time.

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.

Trump’s lawyers have now established a pattern.

In the recusal fight, prosecutors pointed out that the two sentencing hearings which Trump cited to justify recusal included one, that of Robert Palmer, where a January 6 defendant stated that he went to the Capitol, where he serially assaulted some cops, “at the behest” of Trump because Trump and others had convinced him he had to take action to stop the vote certification. Trump ignored that discussion in his reply.

When Trump complained that Jack Smith improperly claimed that Trump, “fueled . . . an unprecedented assault on the seat of American democracy,” DOJ laid out that, in fact, the indictment did show how Trump riled up the mob, of which this paragraph is just one example:

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.

Trump ignored this reply in his bid for a stay.

Both Trump’s motion to dismiss for absolute immunity and for Constitutional grounds ignore the actual charges and overt acts of which he is accused and instead tell a tale of protected speech. His motion to dismiss on statutory grounds, meanwhile, completely ignores how he mobilized the mob and thereby successfully obstructed the vote certification (which, as noted, DOJ had laid out in this underlying dispute), choosing instead to ask that those allegations be stricken from the indictment and then, assuming that will work, claiming that nothing he did actually did obstruct the vote certification.

That is, in over 130 pages of filings attempting to make his prosecution go away, Trump tried to simply remove all overt acts showing how he sent the mob on January 6 from his indictment, rather than contesting the veracity of those allegations.

As DOJ notes, by appealing this, Trump will have another opportunity to dispute Chutkan’s findings of fact that his attacks do, in fact, result in targeted threats.

The Court’s Order was premised on three well-supported factual findings.6 First, the defendant has a long history of using his social media account and public statements to target perceived adversaries by singling them out and using inflammatory and disparaging language that “vilif[ies] and implicitly encourage[s] violence against” them. ECF No. 103 at 84. Second, when the defendant does so, harassment, threats, and intimidation reliably follow. ECF No. 105 at 2. Third, such harassment, threats, and intimidation “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.” Id.

6 Although the Court of Appeals will review the propriety and scope of the Order de novo, it will review questions of “historical fact” such as these for clear error. See Thompson v. Hebdon, 7 F.4th 811, 819 (9th Cir. 2021); Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir. 2018); Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 796 (10th Cir. 2009); Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).

That’ll provide DOJ yet another opportunity to lay out evidence supporting this formula, and yet another opportunity for Trump to try to ignore it to make it just go away.

“See, First Amendment, just say First Amendment, free speech,” prosecutors cite Taylor Taranto in the footnote, prowling Obama’s neighborhood after having been sent there by a Trump Truth Social post.

There’s no better embodiment of Trump’s formula for violence than a mentally disturbed man invoking the First Amendment — just as Trump does here — even as he stalks someone Trump has invited him to target.

And I’m sure, if asked to on appeal, prosecutors would be all too happy to provide more examples showing how Trump mobilized people like Robert Palmer and Taylor Taranto.

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115 replies
  1. David Penington says:

    I saw in the Colorado 14th amendment case, Trump’s lawyers seemed to depend on the 1st amendment (freedom to be candidate) overriding the 14th amendment (disqualification from office) which seems obviously silly to me.

    • Rwood0808 says:

      While everyone expects this to go to the Supremes I was encouraged by the judge ruling that states can enforce the provision of the 14th Amendment without Congress. Is it a bellwether case that will start the dominos falling in Michigan and New Hampshire and Minnesota? Does the Couy Griffin case set precedent? Who knows.

      The case starts on the 30th so I guess we’ll find out soon. If trump were to enter the race down a few swing states it might give the moderates enough courage to push back on the magat party.

      • bmaz says:

        Yes yes, of course. One little pissant local judge has expressed something you agree with. How swell. Sure, let’s have every little county in the country deciding who can run for President. Fine plan that. This is Derangement Syndrome on steroids.

        • Just Some Guy says:

          “Sure, let’s have every little county in the country deciding who can run for President.”

          I was under the impression that state Secretary of States and county clerks already did this. One can’t just be on the ballot in every county in the country by declaring that one wants to run for president. There are processes by which potential candidates file with Secretary of States, and by adhering to those processes those SOS’s decide who is eligible. Which is why, for instance, Kanye West wasn’t on the ballot in Texas in 2020:

          https://www.ksat.com/news/local/2020/07/23/why-kanye-west-wont-be-on-the-presidential-ballot-in-texas/

          • bmaz says:

            Lol, sure, let every small town hick determine who can be President. Trump can meet local standards, Kanye could not. Bad analogy. I was under the impression that if state ballot requirements could be met, you were constitutionally permitted to run. What other rights do you want summarily so easily removed?

            • Just Some Guy says:

              I don’t want any rights removed, but I also don’t think that running for office is a guaranteed right considering that nearly every jurisdiction in the country — not to mention nearly every potential electoral office — has different criteria for determining eligibility. If you believe that there is an absolute constitutional right to run for any election, how do you square that with, say, the age requirements for certain federal positions?

              • bmaz says:

                See, I think it is if you meet the minimal requirements in the US Constitution. Sure, individual states have their own ballot requirements, but if you meet them, you ought be able to run and should not be precluded by a handful of random citizens. They could not broadly sue for such relief against the IRS, why should they be able to decide the US Presidency?

                • Just Some Guy says:

                  I don’t disagree that candidates who meet local requirements should be allowed to run for office. But it’s not also not up to me, nor the federal government, to determine those local requirements, as long as the Constitution still cedes electoral authority to the states (which is a whole ‘nother can of worms — I don’t have particular objections to federally-run elections, like just about every other nation on earth, but that ain’t happening anytime ever).

                  I will say also that it’s a more modern feature of the presidency that candidates are on the ballot in all states. It doesn’t seem to be all that common historically before, say, the 1950s. For instance in just doing basic research on Eugene V. Debs’ candidacy from prison in 1920, I am pretty sure he wasn’t on every state’s ballot, so the oft-touted “million votes while in prison” (it was actually 914,191 votes) doesn’t reflect what he may have garnered had his ticket been on every state’s ballot.

                • Scott_in_MI says:

                  Section 3 of the Fourteenth Amendment is part of the Constitution, so arguably constitutes part of the “minimal requirement” you reference. It’s also (like a lot of constitutional language) not terribly specific, particularly in terms of how and by whom this requirement is to be implemented. We can argue in academic journals and online fora about those issues all we want, but the only thing that’s going to have any legal effect in terms of clarifying the issue is for someone to make an interpretation, operationalize it, and then litigate the results. (Short of another constitutional amendment, that is.) That’s what’s happening here.

                • Deadhead says:

                  A handful of citizens can bring this case because that is exactly what Colorado law provides. What you “think” is not relevant.

              • bmaz says:

                Uh, because those were probably state level issues (I don’t even know what you are referring to) and not deciding the Presidency of the United States?

                • Deadhead says:

                  On what basis does deciding eligibility for the presidential ballot, rise above all other matters? The Constitution does not seem to even require a popular vote. The states could theoretically use another method to choose electors.

        • ItTollsForYou says:

          I shudder to think about some of the implications of these disqualification cases. Sure, I’d love to see Trump off the ballot for any number of legitimate reasons. But what stops a state with a Republican trifecta striking Democratic candidates from the ballot for illegitimate reasons? Goodbye, swing states with blue citizenry and red legislatures.

        • emptywheel says:

          bmaz

          Are you now saying that the NM Supreme Court, which upheld the disqualification for Griffin, is a pissant local court?

        • Deadhead says:

          The Colorado case has been brought against the State by voters under Colorado election law. There is an appeal process. No reason for pissants from other states to object just because they don’t like the law.

        • velcroman says:

          bmaz, what would the proper course of action be to prevent someone from running for President?

          If a 25 year old wanted to run, would it be the State government or the Federal government who would keep him off the ballot?

          If it would be the State government, what would initiate that process? Could it be a lawsuit if the SoS did not initially get involved?

            • RockyGirl says:

              Yes, but what would be the mechanism for making this happen? It’s not self-executing, so SOME entity must take SOME action. What would you suggest?

              • bmaz says:

                An impeachment or criminal conviction.

                And, by the way, I know that is probably unsatisfying. But it should be a really high bar to clear.

                • Operandi says:

                  I feel like criminal conviction is too high a bar. Criminal conviction is the bar that the state must clear in order to deprive you of your liberty and possibly even life.

                  Surely the bar for “you shouldn’t be in an extreme office of public trust, but are otherwise a full, free citizen” should be beneath the one the state must clear to throw you in a cage, no?

    • bmaz says:

      It is not “silly” in the least. Without due process and conviction on a stated offense, that is an entirely appropriate argument. What other rights do you think are summarily revokable? All of them if it is Trump?

      • Rugger_9 says:

        The problem I see coming is deciding who writes the rules. Recalling that victors write the history and our current state of Congress, I’m not sure we’ll be able to live with what we get.

        • bmaz says:

          That is very much my point. Bad cases make bad law. But the focus should be on the law more than the one bad man. Criminal law, First Amendment law and election law for generations hang in the lurch while the surface discussion is all about getting Trump.

            • bmaz says:

              Since there is no trial yet, there are no “facts in evidence”. Bullshit on a blog comment does not count.

              • Deadhead says:

                Exactly, trials are coming and bullshit on blogs doesn’t matter.

                [Moderator’s note: You published this comment under username “dead” which is both too short/common and not the username you’ve been using. I’ve edited it to “Deadhead” this once. Slow down and check your entries as moderators should not have to bat clean up on usernames like this. /~Rayne]

              • Deadhead says:

                There is a trial. That is what you are complaining about.

                [Moderator’s note: This is +8 comments inside less than one hour. Second warning: take a breather. /~Rayne]

                • bmaz says:

                  You are a troll, and I am done with you. NO, there is not a trial, only a pre-trial status. You would apparently not understand criminal procedure and the rules of evidence if they bit you in the ass.

      • Alan Charbonneau says:

        “Without due process and conviction on a stated offense” Exactly. People want their intuition to replace the rule of law who and what should be prosecuted is based on how the feel about the case. That’s not good for any of us.

    • Rwood0808 says:

      If it comes down to the Supremes deciding the issue I’ll be interested in how they work around this:

      “Supreme Court Justice Neil Gorsuch, when he was a Denver-based appeals judge, which said states have the power to “exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

      And the fact that the bipartisan House committee that investigated the January 6 attack recommended last year that Trump be barred from holding future office under the 14th Amendment.

      Still a long-shot but the arguments will be interesting.

      • bmaz says:

        The J6 Committee was not really “bi-partisan”, and their “recommendation” is worth nothing. Again, how many Constitutional rights are you in favor of being summarily revokable without due process? All rights? How far are you willing to go? Clearly you do not think the presumption of innocence matters, what other rights do you disdain? Does this apply only to Trump, or should every citizen be so stripped?

        • Mattpete26 says:

          Right, because if you disagree with Trump you’re no longer a Republican. Would it have been “bi-partisan” with one more Republican? Two? Is it only of value if Republicans are a majority?

          I agree with you that he shouldn’t be removed unless he’s convicted.

          • bmaz says:

            Fair questions in the first paragraph. I don’t know. The official GOP stance was to not participate. That two nominal Republicans did, and quit their jobs or got unelected, respectively, does not strike me as bi-partisan though.

            • Leu2500 says:

              Liz Cheney – a nominal Republican?

              She’s only the daughter of a former vice president, former SecDef, former Congressman & former WH CoS, either as a Republican politician or in a Republican administration.

              And her policy beliefs are solid, conservative Republican. So conservative that in her early political days she was anti-gay rights, which must have made holiday dinners with her sister interesting.

          • Rwood0808 says:

            I believe the ballot printing deadline in Colorado is Jan 5th, and as far as I know, none of trumps trials on this matter will start until well past that date. The case will need to be ruled on before that to have any impact.

        • Fancy Chicken says:

          After reading Baude and Paulsen’s article on section 3 of the 14th Amendment, my IANAL opinion is that it does need to be clarified by the courts to figure out how enforcement works. But being section 3 curious doesn’t mean I believe in summarily taking away Trump’s or anyone’s rights.

          Green, Cawthorn and Griffin have faced suits over removal for either their own behavior or supporting Jan6ers via section 3 or state mechanisms and a variety of opinions were given.

          I don’t think it’s necessarily Trump derangement syndrome to be interested in how Colorado’s 14th Amendment suit against him plays out because it can be used to deny or remove any office holder, and there seems to be general agreement in discussion of that article that some mechanism needs to be in place even if two guys think section 3 simply has force on it’s own.

          It seems relevant for the future. What if we have another insurrection or God forbid worse? Could the 14th Amendment be used successfully in the future if it were necessary to prevent insurrectionists from holding office? Shouldn’t we be able to talk about it?

            • Fancy Chicken says:

              Haven’t been able to check back until now, but I’m glad my comment looks chronologically out of whack since it’s now so far down comments that took place higher in the thread but after I posted.

              I’m just very glad to see a discussion took place. It looked at the beginning that it was getting derailed due to things getting very warm very fast. Nice to the discussion righted its self. I felt brave for speaking my mind.

        • JVOJVOJVO says:

          What is the proper Constitutional process by which a former president is not allowed on a ballot?
          Who should decide?

          • Leu2500 says:

            I’m not sure BMAZ would even agree impeachment, conviction by the senate & disqualification from future office.

            • bmaz says:

              What a load of garbage. Of course I would. Due process and conviction, whether via criminal law or Congress, have always been my point. Don’t lie about what I advocate.

              • Just Some Guy says:

                Pretty sure Leonard Leo and lots of right wing dark money flows through to local judicial elections too.

                • theGeoguy says:

                  It sure does, see ProPublica for “Trump’s Court Whisperer Had a State Judicial Strategy. Its Full Extent Only Became Clear Years Later.”.

                  • Just Some Guy says:

                    “Pretty sure” was facetiousness on my part. The dark money aspect in local judicial elections is so common that I can even accurately claim that a high school acquaintance of mine ran — and, quite fortunately, lost — with (presumably) Fed Soc backing last year.

        • Deadhead says:

          Liz Cheney (R). J6 investigation is a matter of public record and can be introduced in a civil matter. Due process is in process.

          • bmaz says:

            Lol, just laughable bullshit. For starters, the main issue with J6 is criminal. And, even as to some rando civil suits, it would never be automatically admissible. I know you do not like my opinions, but PLEASE do not lie to people.

            • Deadhead says:

              Not a lie. In fact the reports were already referenced and included as attachments in the complaint. You added the word automatically. And you delete posts that point out the errors in your judgment anyway. What a coward.

              [Moderator’s note: Six comments inside less than 30 minutes is a bit much. This is not Facebook or the dead bird app, it’s not meant for rapid takes and shit posting. Bashing contributors/moderators also doesn’t fly, even if you don’t like their opinions. Take a seat and chill out for a while or go do your shit posting on your own microblog account. /~Rayne]

        • velcroman says:

          Correct me if I am wrong, but I assume there would be due process as follows:

          -Some State SoS denies Trump access to the ballot because, in the opinion of the SoS, Trump was involved in an insurrection.

          -Trump sues.

          -A court decides whether Trump was involved in an insurrection.

          -Appeals, etc. up to SCOTUS, and a final decision.

          Am I missing something? Does due process mean something more than a judicial proceeding to decide the outcome?

          • brucefan says:

            In your hypothetical, the outcome is decided when right to be on the ballot is denied.

            I prefer my due process BEFORE my rights are taken away, and I don’t think I’m alone on that.

            Especially true when the right in question has a short “use by” date. Think, e.g., of the mischief with due process judicial proceedings scheduled after the deadline for printing ballots.

            • Just Some Guy says:

              The hypothetical situation as described above is not what is happening as far as I understand it. Rather, no Secretary of State anywhere has made any determination that TFG is ineligible for the ballot next year; instead, suits have been brought to determine that question.

  2. ernesto1581 says:

    Any response to ACLU filing brief yesterday arguing Trump’s DC gag order is too broadly written, too vague in its ban on “targeting,” prevents voters from hearing from candidate Trump in re campaign speech, and is insufficiently justified as no “serious threat” has been shown?

  3. rattlemullet says:

    Clearly trump is a threat to the system of justice as it has been clearly demonstrated over and over again. The deference given to him because he was former president rings hollow based his mob speak threatening behavior. Engoron read through his lie on the stand when he said he was referring to Cohen and he had the spine to call his lie not credible. In other words he knew trump was lying. Regarding his National Security breach for mishandling highly classified documents, that act alone should confine him behind bars. I can think of no other National Security breach by any other American citizen mishandling such highly classified material who was not confined until trial. Failure to confine such a National Security risk is irresponsible. The fact he was a former president be damned. The tolerating of this behavior is based on fear of gun toting base. This base will need to be confronted sooner than later, the fear his base alter votes for his impeachment. The threat from his base is altering the constitutional order by instilling fear into the process.

    • bmaz says:

      Bullshit. Not every person would be presumptively detained. Nor would it be a good idea to presumptively do so. Maybe you ought to refresh your recollection of Sandy Berger, or the insanity in the Wen Ho Lee case.

      • rattlemullet says:

        Wen Ho Lee is no comparison, he was arrested and charge with 59 counts and jailed in solitary confinement for 278 day. Ultimately all but 1 charge was dropped and he pled guilty to improper handing of restricted data. Government ended up paying him 1.6 million and apologizing.

        Sandy Berger, got the same freedom as trump and was not confined. I consider tumps large haul, much larger than Sandy Berger document haul, to be more egregious. As well as trumps bellicose attitude after being caught red handed demonstrates his I am above the law. However both were given deference due to their previous positions which equate to an unequal form of justice for some.

        Everyone is deluding themselves if they think trump is not a Nation Security risk. The document taken to Bedminster are missing and could likely be in Saudi hands. I still maintain he should be confined.

        [Moderator’s note: This comment had a typo in the email address; it’s the second time this week such an error needed to be corrected. When the comment system is finally upgraded, the system won’t accept a mismatch at all. Please check your Name/Email fields before publishing comments. You are at risk of blacklisting if you continue to cause more moderation intervention. /~Rayne]

        • bmaz says:

          You are deluding yourself if you think any judge is going to detain Trump pre-trial. And, no, Lee is precisely an example of when bullshit clamor takes over a court as to pre trial detention.

    • Ithaqua0 says:

      Trump *is* the root of the problem, but “Great cases like hard cases make bad law.” (Oliver Wendell Holmes, in a dissent to Northern Securities Co. v. United States.) Let’s not warp our legal system around Trump.

      • Cheez Whiz says:

        Trump is a unique manifestation of the problem, which for decades has been Republican willingness to do whatever it takes to hold onto power. The Party had a system for vetting and promoting candidates that kept them within legal bounds, but Trump just walked right around it and took the Presidency. He’s using all the tools and systems of the Party for his own purposes, along with decades of experience gaming the legal and financial systems. He’s merely accelerating the trend the Party has been following for decades, but for his own purposes, not the Party’s.

    • P’villain says:

      I and many here disagree with bmaz’s assessments of what particular legal actions degrade the rule of law, but I certainly share his belief that if Trump cannot be held accountable without degrading the rule of law, then the USA has lost its way. I was trained to serve and revere our legal system, so I’m desperately hoping that this battle can be won the right way.

      • David F. Snyder says:

        The Mahabharata shows that this very problem of a power struggle between the corrupt/greedy and the law-abiding in the ruling class within a culture is ancient. The story goes into great detail (with many side stories), and the conclusion is that Dharma (rule of law, roughly translated) always wins out in the end. But at a significant cost to all sides. (This is a vast oversimplification but summarizes the major story arc).

  4. Attygmgm says:

    Looking for a particular amicus filing I had read about, I recently reviewed the docket of the Trump case over which Judge Chutkan presides. I was struck by what seems her default of declining to accept amicus filings. There were a lot of proposed amicus filings. I didn’t see any that had been accepted for filing. At the trial court level that is probably a wise exercise of a judge’s discretion. She’s got enough on her plate without them.

  5. earlofhuntingdon says:

    SC’s response to Trump’s Motion to Stay is persuasive, direct, and exposes many of the flawed and deceptive-by-omission arguments made by Trump’s counsel (a distinct patter for defense counsel).

    • Purple Martin says:

      I like the word patter, even though it seems to be falling out of use. And it is particularly apropos here. As the Cambridge English Dictionary defines it…

      Patter. 1. continuous and sometimes funny speech or talk, especially used by someone trying to sell things…

  6. Ewan Woodsend says:

    Historical question out of topic :
    1/ The number of federal circuits seemed linked to the number of Supreme Court justices in 1891 when they were created (9 = 9). But when 10th and 11th were created, no additional justice was named. Only because of political considerations at the time?
    2/ Now, the 9th is almost twice as large as 11th, which is the second largest, but 9th isn’t split. Is that because it would be given to another justice than Kagan?

  7. Amicus12 says:

    Let’s assume the District Court dissolves the stay and the Court of Appeals does not reinstate it. Those are certainly plausible assumptions.

    Further assume that Trump continues to make statements that violate the District Court’s order.

    How does Judge Chutkan police those violations meaningfully? (Put aside the prospect of accelerating the trial date for this purpose.) It’s not obvious to me how she can stop the threats: locking him up won’t stop the proxies.

    What works?

    • CaptainCondorcet says:

      I suspect actually locking him up pre conviction (which i admittedly can never see happening) would unleash a whole new slate of threats….or worse.

      • Bobby Gladd says:

        Mr. #NielsonMandela obviously WANTS to be arrested and jailed. The YUGE-est Ratings of All Times. He cannot allow this opportunity to also be STOLLEN from Him!

        • CaptainCondorcet says:

          And though I personally truly wish he was granted the desire of his heart, if the claimed justification of early detainment is for safety reasons, I fail to see how that would accomplish it. Guess we’ll wait for Judge Chutkan.

    • emptywheel says:

      That’s why I think it important that DOJ asked her to add it into release conditions. As they note, that gives her some other tools to work with.

      And their argument that the Meadows comment is witness tampering is right on. Eventually DOJ can just add a witness tampering charge, or indict him separately on something that can go to trial more quickly.

  8. Jordan Orlando says:

    Asking all of you well-informed attorneys and knowledgeable people: what’s the answer to the David French (NYT) question about how “proof of criminal intent is indispensable to the criminal cases against Trump” so therefore if jurors are convinced that Trump believed he had won the election, he must be acquitted?

    I mean this sounds like nonsense, but it’s the NYT and French refers to discussions he had with federal prosecutors etc.

    • bmaz says:

      French is normally a bit daff. But juries always want to understand the mental state, even when it is not a required element of a charge. He is not totally wrong .

      • Jordan Orlando says:

        Thanks for responding. I’m sorry, but can you please elaborate? If he’s “not totally wrong,” how is he right? What burden, exactly, is on the prosecutors to demonstrate that he “knew” he lost? If the defense persuades the jury that he believed he won, what does this do to the case, and why?

        (“Knew” in quotes as homage to Elizabeth Drew, who, during Iran Contra, wrote “When one asks what Reagan ‘knew’ one may be dealing in metaphysics.”)

        • bmaz says:

          That is a question a jury will have to decide. You, and French, can talk about “burden” all you want. But juries always want to know why. If a prosecutor is not addressing that, they are likely losing.

          • Jordan Orlando says:

            So you’re saying Trump’s attorneys can get him acquitted by convincing the jury that he didn’t know he was breaking the law? Is that what you mean by the prosecution “likely losing”?

            I’m not being deliberately obtuse — it just seems like this would be fundamental; beyond dispute, and yet not only does French disagree, but you and Dr. Wheeler are disagreeing.

            • Savage Librarian says:

              Seems to me that Marcy is theoretically and technically correct. And bmaz is pragmatically correct. Juries are people. People have emotions and points of view. That’s why we like stories, not just math.

              Honestly, in my own civil case, I wish my attorney had been more persuasive with the jury, not just good with technicalities of law. It really takes both, not just one or the other.

          • Purple Martin says:

            A while ago, I listened to a podcast with a former AUSA talking about mens rhe, citing what he named as the “DoJ Criminal Resource Manual” (it may have been Popehat—Ken White—but don’t hold me to that). I looked it up at the time and it seems relevant, addressing knowingly false statements and citing relevant precedent [emphasis added]:
            https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully

            DOJ CRM § 910: KNOWINGLY AND WILLFULLY.

            A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant’s knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973).

            Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).

            bmaz, in your defense work, have you ever encountered a prosecutor using this argument? How successfully?

            • bmaz says:

              Sure. And I can’t remember to what success level. This is why I keep harping about “facts” are not facts until admitted into real evidence. You need a jury and an evidence set admitted to them. That does sound like something Ken might say.

    • Rayne says:

      David French rarely ever writes in good faith (and that’s hedged because I haven’t read *everything* he’s written, just enough to suss his pattern).

      It is absolutely nonsense coming from French via NYT; it’s intended to amplify propaganda sowing doubt ahead of a jury trial, poisoning the minds of possible future jurors.

      The question put to the jury members will be whether Trump committed the crimes cited in the indictment based on the evidence produced during the trial, not whether Trump did/did not believe “he had won the election.” Just replace that phrase with “believe in Santa Claus” or “believe in Easter Bunny” because that’s all the validity it has.

      You’re better served reading the indictment itself than reading David French’s swill. See: https://www.cnn.com/interactive/2023/08/politics/annotated-text-copy-trump-indictment-dg/

    • earlofhuntingdon says:

      David French is not arguing in good faith, but as a NYT’s columnist (another inexplicable recent hire), he doesn’t have to. He’s there to show that the NYT is centrist and non-partisan, which is not the same as unbiased.

      Notwithstanding French’s HLS degree, he is and is arguing as a political commentator, who has spent considerable time working for hard right, so-called religious liberty organizations. He has worked, for example, for the same, misnamed, hard right Alliance for Defending Freedom as Speaker Mike Johnson. As Rayne says, below, you will not learn anything useful from reading David French.

  9. Magnet48 says:

    I understand bmaz desires the best legal handling of Trump but what exactly would that have been if there was no Jan6 committee? And honestly how can he be legally restrained from continuing his usurpation of the judicial system? The situation regarding Trump does not seem to be a small thing to be handled over years, but rather ongoing & increasing in impact.

    • bmaz says:

      Lol, everything would have been better without the J6 Committee. DOJ could have proceeded a lot faster and without the holdup of a bunch of preening politicians. As to legal restraint, the J6 Committee accomplished nothing. The law is certainly not perfect, but is preferable to staged Congressional baloney.

      • Desidero says:

        In general I agree, but at the time the public was largely being rolled by the GOP PR campaign, so the J6C had the effect of explaining simply to normal people. Perhaps there was a other way, but stenched a fair amount of “witch-hunt” for the general public to allow normal trials to proceed with less crazy external chatter. And yes, it caused damage as well, so mixed results.

        • bmaz says:

          I don’t think the public that needed the info ever got it from J6 Committee. It was performance art for the already convinced, but not much more.

    • jdmckay8 says:

      Our delightful moderator gave you a statement, not an answer.

      And honestly how can he be legally restrained from continuing his usurpation of the judicial system?

      This is being talked about a lot, in legal forums and blogs by good legal minds. There is not even anything close to consensus AFAIK. I think the answer to your question (eg: “how can he be restrained”), currently in our legal system, is he can’t.

      The situation regarding Trump does not seem to be a small thing to be handled over years, but rather ongoing & increasing in impact.

      I’ve said same thing here a few times, as it seems to me this is the elephant in the room being ignored. I think you said it well. And FWIW, we are at a very unique and perilous time in history. I have know historical event even remotely instructive in guiding us towards meeting challenges of our time. Its going to take a lot of high integrity, wide awake people to come up with a path… there.

      With that said, in my mind your “but rather ongoing & increasing in impact” is about as self evident as can be, and is happening and has been happening for at least years while snowballing. It is right here, right now.

      Being told we have to wait for the law to get around to it, figure it out… and god knows that takes a lot of time… just be patient and the legal folks in charge will get back with us at some later date… I don’t know what to say to that. Maybe: Well isn’t that special.

      • bmaz says:

        Well, yes, I actually am pretty delightful.

        “Being told we have to wait for the law to get around to it, figure it out… and god knows that takes a lot of time… just be patient and the legal folks in charge will get back with us at some later date… I don’t know what to say to that. Maybe: Well isn’t that special.”

        Yes, it is special. That is why courts and juries decide things, not commenters in a blog post comment section.

      • OnKilter says:

        Trump doesn’t play by the rule[s of law]. Trump cheats and lies relentlessly. Trump has powerful friends in the media who support him. Trump scares people because he is powerfully and relentlessly vindictive.

        But mostly, Trump games the system, and he plays it so close to the line that it’s very hard to use the rule of law to cage him.

        Trump uses his bully pulpit to obfuscate and muddy the waters.

        Here’s an example: Trump has made such a big noise in his pretrial utterances that nobody’s focused on the actual charges against him!

        FYI- here are the charges that no one is talking about:
        Count 1: 18 U.S.C. § 371 (Conspiracy to Defraud the United States)
        Count 2: 18 U.S.C. § 1512(k) (Conspiracy to Obstruct an Official Proceeding)
        Count 3: 18 U.S.C. §§ 1512(c)(2), 2 (Obstruction of and Attempt to Obstruct an Official Proceeding)
        Count 4: 18 U.S.C. § 241 (Conspiracy Against Rights)

        On the other hand, Jack Smith is forced to play by the rules, as is Tanya Chutkan. And the application of the rules takes time.

        Trump’s utterances are instant and amplified, and tend to overtake actual substantive discussion. How do you think Trump won in 2016? He was so busy making controversial statements that appealed to his base that everyone ignored the fact that he’s an unprincipled liar and grifter.

        How to fight it? Not with rules but with the relentless amplification and loud discussion of Trumps actual criminal charges.

        • OnKilter says:

          continued:
          How to fight Trump?

          Not with rules but with the relentless amplification and loud discussion of Trumps actual criminal charges. Force him to respond!

          Force Trump to defend himself in public against the actual criminal charges brought forth against him.

          So he will be too busy defending himself than to attack the people and the system.

  10. earthworm says:

    ” “See, First Amendment, just say First Amendment, free speech,” prosecutors cite Taylor Taranto…”
    another form of weaponized speech — shutting people up, instead of avoiding legal action by hiding behind first amendment — that reminds me of the above, is charging of anti-semitic ‘hate speech’ when there are protests against the israeli government, or pro-palestinian rhetoric.
    many have written of the power of terms such as “terrorist,” to de-legitimize or to shut people up. hiding behind first amendment is similar but opposite, it seems. first amendment claims give a megaphone to what should be called hate speech.

  11. Parker Dooley says:

    OT, but did Tennyson foresee Trump’s fate?

    The Kraken

    Below the thunders of the upper deep,
    Far, far beneath in the abysmal sea,
    His ancient, dreamless, uninvaded sleep
    The Kraken sleepeth: faintest sunlights flee
    About his shadowy sides; above him swell
    Huge sponges of millennial growth and height;
    And far away into the sickly light,
    From many a wondrous grot and secret cell
    Unnumbered and enormous polypi
    Winnow with giant arms the slumbering green.
    There hath he lain for ages, and will lie
    Battening upon huge sea worms in his sleep,
    Until the latter fire shall heat the deep;
    Then once by man and angels to be seen,
    In roaring he shall rise and on the surface die.

  12. harpie says:

    I started posting some information on new House Speaker JOHNSON at this comment, and more threads up and down at that post:
    https://www.emptywheel.net/2023/10/25/leave-the-rest-to-mike-johnson-republicans-prepare-to-elect-key-jan6-figure-as-speaker/#comment-1022671

    12/10/20 JOHNSON and 125 GOP House members file AMICUS on PAXTON TX suit

    The Counsel of Record on that is Phillip L. JAUREGUI, leader of Judicial Action Group.
    Here’s a list of posts from Rightwing Watch about, or with references to JAUREGUI: [Link in next comment]

    9/18/23 Religious Right Leaders Demand Next GOP SCOTUS Nominees Meet ‘Biblical Worldview’ Standard

    9/23/20 Dominionists Say God Has ‘Anointed’ Amy Coney Barrett for the Supreme Court

    3/4/20 Phillip Jauregui Asks God to Give Christian Conservatives Control Over the ‘Triple Crown of Government’ [Articles I, II and III]

    7/8/19 Right Wing Bonus Tracks: The Book of Trump

    Jim Garlow reports that vehemently anti-LGBTQ pastor Rick Scarborough is stepping down from his position leading Bible studies for government officials on behalf of Garlow’s “Well Versed Ministries” and will be replaced by right-wing activist Phillip Jauregui.

    7/6/18 JAG’s Phillip Jauregui: Barrett Is God’s Anointed, Kavanaugh A ‘Usurper’ Out To Steal God’s SCOTUS Seat

    6/7/18 Intercessors For America’s Guide To Getting Judges Who ‘Fear God’ & Uphold ‘Creator’s Laws’

    9/12/16 Conservative Groups Urge Maximum Obstruction Of Hillary Clinton’s Judicial Nominees

    [8/30/16 JOHNSON does an interview on a show called:
    Disciple’s Voice of Hope with Alex T. Ray – God in Politics with Mike Johnson
    The interview takes place at HARLAN CROW’s home.]

    1/21/16 Conservative Pundit: Impeach Kennedy Over Marriage Equality Ruling

    1/7/16 Anti-Gay Activists Rally Behind Roy Moore, Who Touts ‘States’ Rights’

    5/4/11 Religious Right Groups And Chamber of Commerce Fail To Block District Court Nominee

    12/15/10 Dozens of GOP Leaders Declare Solidarity With Those Who Want To See Homosexuality Outlawed

    [signers include Gohmert, Jordan, McCarthy, Pence, Scalise, Demint, Cuccinelli as well as Jauregui]

    4/20/10 Sputtering Start to Religious Right’s Rebranding

    5/18/09 SCOTUS Round-Up

    […] The conservative movement is sharing its resources as it prepares for the nomination. The Judicial Action Group, founded in 2006 and based in Alabama, has organized a research network — dubbed the Supreme Court Review Committee — of about 15 “pro-family ministries” and conservative legal groups, said Phillip Jauregui, president of the group. […]

  13. harpie says:

    A “Big Lie” Ring Leader Becomes Speaker of the House https://www.democracydocket.com/opinion/a-big-lie-ring-leader-becomes-speaker-of-the-house/ Marc Elias October 30, 2023

    […] If McCarthy believed in nothing, Johnson is a true believer. He combines MAGA Republicanism with Christian nationalism. […]

    When it comes to issues of democracy, Johnson is an avid vote suppressor and an accomplished election denier. He is best thought of as a cross between Jim Jordan and John Eastman. […]

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