Trump Is Going Through the Motions to Dismiss until He Resumes the Presidency

One of the reasons I suspect that Trump-leaning Republicans replaced Kevin McCarthy with a key player in Trump’s last attempted coup is because Trump shows no signs of any plan to try to win his Federal criminal trials.

For some time, it has appeared (to me at least) that he has approached these cases with the belief that if he can use them as a campaign prop with which to get reelected, then he can simply pardon himself or remain President indefinitely to beat the Federal rap. That’s one of the reasons, I think, why he is treating many of his DC court filings as stunts, especially his extensive fundraising and messaging campaign around the gag order.

Delay, disinform, then dismiss.

I get that. I expected that. Yet, I still expected him to present the best legal case he could as insurance in case winning or stealing the election and self-pardoning doesn’t work.

He has lawyers capable of making very competent legal arguments.

So I’m frankly shocked by how inadequate his Motions to Dismiss have been. I wrote them up here and made this nifty table summarizing the arguments.

This is not just a legal observation — though some of his purportedly legal arguments, most notably his selective prosecution motionare legally shitty. Don’t take my word for it: take Carissa Byrne Hessick’s expert opinion, who says, “his motion is embarrassingly awful & should clearly be denied under current law.”

This is not just a legal observation. Partly, it’s box-ticking one. As I show below, Trump isn’t even addressing all the allegations against him.

As DOJ noted in the response to Trump’s MTD for Absolute Immunity, Trump totally misrepresented the indictment. As DOJ laid out, the indictment consists of four charges — three of them, conspiracy charges (18 USC 371, 1512(k), and 241). For each of those charges, DOJ alleged that Trump used five means of pursuing that conspiracy, laid out as five bullet points in the indictment. Those five bullets read:

a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant. [state]

b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6. [fake electors]

c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors. [Jeffrey Clark]

d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators 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. [PenceCard]

e. After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd–including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results–violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims. [mob] [red brackets my own]

Here’s how DOJ described the indictment in their response to Trump’s Absolutely Immunity filing.

A grand jury charged the defendant in a four-count indictment. ECF No. 1. The defendant moved to dismiss the indictment on the ground that he “is absolutely immune from prosecution.” Mot. 1. When considering a motion to dismiss, the Court must view the indictment “as a whole[,] and the allegations must be accepted as true.” United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022) (internal quotation marks omitted).

Count One, which charges a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, alleges that the defendant, then a candidate seeking re-election to the presidency, conspired with, among others, several individuals outside the Executive Branch to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” ECF No. 1 at ¶¶ 1, 7, 8. The indictment further alleges that the defendant aimed at accomplishing the conspiracy’s objectives in five ways: [state] using deceit toward state officials to subvert the legitimate election results in those states, id. at ¶¶ 13-52; [fake electors] using deceit to organize fraudulent slates of electors in seven targeted states, and cause them to send false certificates to Congress, id. at ¶¶ 53-69; [Jeffrey Clark] leveraging the Department of Justice to use deceit to get state officials to replace the legitimate electoral slate with electors who would cast their votes for the defendant, id. at ¶¶ 70-85; [PenceCard] attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and [mob] exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at ¶¶ 106-124. Counts Two and Three, which incorporate allegations from Count One, charge conspiracy and substantive violations of 18 U.S.C. § 1512(c)(2) for corruptly obstructing the certification of the presidential election results on January 6, 2021. Id. at ¶¶ 125-28. Count Four, which likewise incorporates the allegations from Count One, alleges that the defendant conspired to violate one or more person’s constitutional right to vote and have one’s vote counted. Id. at ¶¶ 129-30. [red brackets my own]

Get used to this paragraph: you’re going to see some version of it in the response to many if not all of the MTDs submitted last week.

To address the charges, you need to explain why each of those five means don’t substantiate, either alone or in combination, the elements of the offense of the charges. Effectively, Trump has to show how these five means don’t prove the three different ways they have been charged criminally.

One reason you have to address the alleged means of conspiracy is that First Amendment protected activities, if they are part of a conspiracy, may be included as overt acts in that conspiracy. Scores of January 6 defendants have already made the same First Amendment argument Trump is, including some members of the Proud Boys and Oath Keepers who, like Trump, didn’t breach the Capitol. But if DOJ can prove speech was part of a conspiracy, that speech can come in as evidence of that conspiracy. Trump’s MTD on Constitutional Grounds, for example, which is substantially the same argument about the First Amendment that has already failed for other Jan6ers, names each of the crimes alleged.

These points are not in dispute. Nonetheless, in an astonishing display of doublethink, the prosecution simultaneously claims that President Trump—simply by speaking his mind and petitioning for a redress of grievances—also somehow conspired to “defraud the United States,” “oppress rights,” and “obstruct an official proceeding.” Id. at ¶ 5–6, 125–130.

Then, purportedly citing to the five bullets that describe the means, he spins the five means as giving voice to concerns about election integrity, not his unlawful goal of trying to invalidate the votes of 81 million Biden voters.

As the indictment itself alleges, President Trump gave voice to these concerns and demanded that politicians in a position to restore integrity to our elections not just talk about the problem, but investigate and resolve it. See id. at ¶ 10(a) (state legislators and election officials) act) [sic]; ¶ 10(b) (Vice President and other government officials); ¶ 10(c) (state officials); ¶ 10(d) (vice president); ¶ 10(e) (members of Congress).

This passage replaces the instrumentality alleged with the targets of what Trump calls persuasion. Trump correctly describes one target of the state means (but not the coercion involved). But then he spins the creation of fraudulent documents as, instead, an attempt to persuade Mike Pence. He redefines the hijacking of DOJ in order to make a seemingly authoritative false statement as an attempt to persuade state officials (long after the involvement of state officials was concluded). He describes efforts to get Pence to violate the law as instead an attempt to persuade him. And he calls a violent mob threatening to assassinate members of Congress as, instead, an attempt to persuade those members.

Trump is a con man. And his First Amendment argument is a breathtaking claim that the means he uses to sustain his con — including fraud and coercion backed by violence — are merely free speech.

To some degree, this quick sleight of hand doesn’t matter: In the discussion of the First Amendment that follows, he never returns to address the charges against him. As a result, Trump’s First Amendment argument is sloppy fluff compared to the First Amendment January 6 challenges that have gone before and will be before the DC Circuit by the time Trump goes to trial.

Having at least acknowledged the existence of all five “means” bullet points in his MTD on Constitutional Grounds (even if he redefined them as targets of persuasion), the section of Trump’s MTD on Statutory Grounds addressing 371 pretends the indictment names just three means, not five.

As relevant here, the indictment alleges three types of conduct that supposedly involved making a false statement: (1) claims that the 2020 Presidential election was rigged or tainted by fraud or other irregularities, made both in public and in communications with public officials; [state] (2) organizing and submitting contingent slates of electors to the President of the U.S. Senate and the Archivist of the United States; [fake electors] and (3) making public claims about the scope of the Vice President’s legal authority with respect to the election certification. [PenceCard] [red brackets my own]

Trump doesn’t even pretend to address two of the five means alleged involve a conspiracy to defraud the government: the Jeffrey Clark and mob means. In the sections addressing 1512 and 241, Trump never revisits those other two means (or, in any specificity, the three he does include).

And that’s how, in the section on 1512 (an area where he could, but does not, piggyback on two years of determined work from other January 6 defense attorneys, including several who are members of his larger defense team), he claims he did nothing that could have obstructed the official proceeding — the January 6 vote certification — that he never even identifies.

As discussed above, lobbying members of Congress and state officials to act in a certain way when they conduct an official proceeding does not “obstruct” or “impede” that official proceeding. Nothing about lobbying Congress to act a certain way “places an obstacle” or “impediments,” “hinders … from action,” “gets in the way of the progress of,” “holds up,” or “blocks” Congress from acting. See id. at 1132, 1159. On the contrary, lobbying Congress to act in a certain way presupposes that Congress will conduct an official proceeding, and it seeks to persuade Congress to act in a certain way during that official proceeding. That is the antithesis of “obstructing” or “impeding” the proceeding.

Think about that! If Trump bothered to mention the vote certification, he would literally be claiming that he had absolutely nothing to do with its interruption on January 6, 2021. Nothing.

Even the illegal order to Pence, clearly identified as item 3 in Trump’s 371 section and a primary focus of both Judge David Carter’s opinion finding it likely this did amount to obstruction and the January 6 Report, is gone here. Jeffrey Clark never gets put back in. Most importantly, the obvious means of sending thousands of angry Trump supporters, many armed, to Congress to chase lawmakers out of their chambers remains absent from Trump’s discussion.

This is why (as I noted earlier) I think Trump is simply trying to make his incitement of actual mobsters go away with the Motion to Strike. His legal arguments ignore the incitement of the mob entirely, even after his recusal stunt introduced evidence of someone convicted under 1512, Robert Palmer, who said he committed crimes “at the behest” of Trump, even after his gag fight introduced evidence of a Jan6er stalking Obama immediately after Trump sent him.

To the extent that Trump’s MTDs don’t result in the wholesale dismissal of his indictment (and DOJ argued that by allegedly conspiring with five people outside of government, most of the allegations against Trump couldn’t be treated as official acts even if he did win the Absolute Immunity argument) Trump’s failure to address some of the means he allegedly used will lead to the failure of these efforts.

With the exception of the MTDs for Absolute Immunity (arguing that as a former President Trump, can’t be charged for things he did as President) and Selective Prosecution, these MTDs don’t attempt to argue that the entire indictment should be dismissed. And where in some cases he could make compelling arguments — I think the Jeffrey Clark means, for example, is particularly prone to legal challenge, though Trump barely addresses it — so long as you leave one of the means intact, you won’t succeed in dismissing the indictment.

In practice, the scope of what Trump actually addresses in his MTDs looks something like this:

Not only doesn’t Trump ever address the indictment as alleged (DOJ notes that a Motion to Dismiss must accept the facts alleged as true), but in none of these MTDs does he address all the means alleged. The only place he fully deals with the Jeffrey Clark allegation (which, again, I think is the most susceptible to legal challenge) is in the Absolute Immunity filing that is weak for other reasons. The only place he deals with the mob means is in the Motion to Strike, his legal effort to sweep his role in the violence all under the rug.

If his effort to do that — to remove the descriptions of his own role in the violence from the indictment with his Motion to Strike — fails, then that means alleged in the indictment will survive no matter what else happens.

To be sure, these MTDs have no bearing on whether he’ll ultimately be successful. Trump doesn’t need any of these MTDs to succeed to be acquitted. There will be a contentious fight about admissible evidence and arguments, where this First Amendment argument will be even more contentiously argued than it is here. The fight over advice of counsel arguments has already started, And ultimately he only needs to find one MAGAt willing to ignore all evidence to keep on a jury.

But the big gaps in Trump’s MTD arguments, to say nothing of the way he spins having his campaign submit fraudulent documents to NARA and Congress, seem to reflect points where even his lawyers recognize his case is so weak they just won’t bother — they’ll just try to sweep it all under the rug some other way, like that Motion to Strike.

Again, even if this goes to trial in March as currently scheduled, Trump needs only persuade one voter. If he can use these court filings as a means to delay that trial and as campaign props to win the election, these weak points won’t matter.

Update: Corrected trial date, which is scheduled to start on March 4, per Sean Sullivan.

93 replies
    • Purple Martin says:

      To be fair, he makes better arguments in his WaPo piece yesterday, going into considerable detail on MAGA Mike’s involvement in three things: Dominion Voting Systems; his amicus brief in Texas AG Ken Paxton’s lawsuit; and Jan. 6. The amicus gets the most attention as the one thing in which he had a leading role.

      Bump’s major point seems represented by:

      But this question of Johnson’s efforts to block Joe Biden’s 2021 inauguration quickly became a central part of discussions about his political career. In part, this was a function of Johnson’s remarkably short Hill résumé; there weren’t that many things to talk about. But, in part, it’s because there were obvious moments at which Johnson had been unusually vocal in bolstering Donald Trump’s push to retain power.

      This attention on Johnson’s role in that push, though, risks overstating his importance, centering on one person a sweeping, pervasive set of arguments and tactics that Johnson may have simply advocated rather than initiated. By making Johnson the poster child for efforts to overturn the 2020 election, we run the risk of minimizing that pervasiveness and the important roles played by other people.

      Gift link:

      I’m just glad it’s not stenography based on access to MAGA Mike’s Team (is that a thing yet?), but his own research, analysis, and arguable conclusions. We need more of that and I don’t think Philip Bump needs our sympathy.

      • bmaz says:

        Who is “MAGA Mike”? is everybody in the world supposed to know these cutsie pie names every day? What do you think this accomplishes?

        • harpie says:

          GAETZ coined that phrase while he was a guest on BANNON’s show, “Real America’s Voice”:

          Oct 25, 2023 · 3:17 PM UTC

          Matt Gaetz to Steve Bannon: “If you don’t think that moving from Kevin McCarthy to MAGA Mike Johnson shows the ascendance of this movement and where the power in the Republican Party truly lies, then you’re not paying attention.”

        • earlofhuntingdon says:

          Gaetz probably focus-grouped that phrase rather than coined it on air. Regardless, he’s a crowing peacock, hiding in Trump’s hedgerows.

        • Purple Martin says:

          “MAGA Mike” is his own side’s chosen nickname. It is not an insult, not an exaggeration, not a play on words.

          I used it rather than his name on purpose and would wager that if given only the words MAGA Mike and Mike Johnson, more people would correctly identify as the new Speaker of the House, the first rather than the second.

          You may or may not have noticed I don’t play the game of insulting distortion of people’s names, and I didn’t do that here (no matter my opinion of The Cantaloupe Cauldillo/em>).

        • ButteredToast says:

          As a practical matter, there are enough Trump-supporting Mikes in Congress that it’s possible people would get confused about just which individual “MAGA Mike” refers to. s/ (sort of)

      • earlofhuntingdon says:

        His headline didn’t do his argument justice. He’s been skewered on text media for it. But he’s still bothsidesing. Mike Johnson’s role was important enough to get the Speakership.

        Trump’s imprimatur for that was essential, and he doesn’t care much about anything but Jan. 6th support. He and his party will do it again, in a more complicated, multi-faceted way. But it will still be a coup.

  1. earlofhuntingdon says:

    From Carissa Byrne Hessick, an expert on prosecutorial power, your citation:

    In setting out the relevant legal standard for selective prosecution, the Trump team tries to portray the case law in a very favorable light by cherry-picking some quotes from cases. But none of the cases they cite actually dismissed a case for selective prosecution.

    What’s worse, in their haste to find a good few quotes, Trump’s team cites a D.C. Circuit opinion from then-Judge Kavanaugh in which he offers one of the most full-throated defenses of prosecutorial discretion I’ve ever seen!

      • earlofhuntingdon says:

        That’s an impermissible but persistent pattern for Trump’s lawyers that several of the judges involved with these cases might point out.

      • emptywheel says:

        DOJ called Trump on it in one of their recent filings. And yes, it is utterly typical of what I assume is John Lauro’s lawyering.

        • harpie says:

          Do you mean this part of the Opposition to Motion to Stay?

          [pdf15/32] Notably, the defendant never engages with the majority opinion in Gentile, citing the case only once (ECF No. 110 at 14); and even then, he cites a portion of the opinion, 501 U.S. at 1043, joined by only four justices, while failing to disclose that he is relying on a non-controlling section of the decision.

        • SteveBev says:

          There is also a passage on p16 of the same filing dealing with: the Defense claim that the right to a fair trial belongs only to the defendant, and the defense mishandling of a citation from the Brown case which was contradicted by the reasoning of the majority and subsequent caselaw.

        • dopefish says:

          USA’s opposition to the 110 Motion to Stay, starting on p16:

          The defendant resists this conclusion by arguing (ECF No. 110 at 20-23) that the right to a fair trial belongs only to him, and so he should be free to try use external influences to distort the
          trial in his favor. That claim should be rejected. The defendant again relies (id. at 22) largely on Ford, 830 F.2d at 600, but that portion of the opinion was not embraced by the other two members of the panel. See Ford, 830 F.2d at 603 (Krupansky, J., concurring) (“[E]xisting legal precedent defines the Sixth Amendment right to a fair and impartial trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally to the state as the representative of the people.”); id. at 606 (Nelson, J., concurring) (“The public’s interests do not extend to allowing the official to engage in tortious conduct toward his accusors, of course . . . .”). The Supreme Court’s decision in Gentile, which involved restrictions imposed on a defense attorney, forecloses such a narrow conception of the right to a fair trial.

    • earlofhuntingdon says:

      Trump’s lawyers treat case law as if it were a Thesaurus or a Bartlett’s Quotations. It exists solely as a source for useful quotes. Judgments and rulings, majorities and dissenting voices can and should be ignored. Judges and bar associations probably should sanction that behavior.

  2. Amicus12 says:

    The misrepresentation of the allegations ought to be central to the disposition and denial of the motions. To challenge the sufficiency of the indictment the allegations must be treated as true. It’s the criminal law counterpart to federal civil 12(b)(6) practice.

    It matters, and potentially greatly, because the absolute immunity claim gives rise to interlocutory appeal if dismissed by the trial court (which seems a near certainty).

    The D.C. Circuit won’t have much appetite for deciding claims of great moment that are divorced from the requisite factual standard. Perhaps some of the judges might hold their nose, but by and large it’s a court of appeal where these kinds of niceties – failing to argue in accord with the governing legal standard – are dispositive and fatal.

    It should also doom Supreme Court review, but who knows nowadays. A case that argues legal propositions not grounded in the applicable facts is not a good vehicle for deciding “what the law is.”

    So perhaps, interlocutory review, and a request to stay the trial court proceedings, will fail.
    That’s a big deal, because yes, the only defense strategy appears to be to get elected (enthroned?) and then issue a self-pardon.

    • Yankee in TX says:

      He’s not going to self-pardon if he wins. He’ll have the Attorney General order the DOJ to stand down in all of his cases as being political prosecutions. He’ll win any appeals by default. That will take care of any other prosecuted federal cases due to double jeopardy issues. Any not yet prosecuted cases will die by limitations. Why take a chance on a questionable self-pardon, when ordering the DOJ to close their books will accomplish the same thing.

      I don’t like to say it and I’m passionately against it, but if he earns election in spite of all of this then he has the right to say the American people rejected these prosecutions. It doesn’t solve the GA case or if any other pissant prairie punk packing a pistol wants to take a figurative shot at him (my apology in advance bmaz) but those would be the least of his problems once he’s in the White House.

        • Yankee in TX says:

          Your reasoning dazzles me. If, god forbid and by all that is holy, he wins will he self-pardon or take the route that I have suggested? For him to have the “right” to claim freedom from these meddlesome priests, is perhaps a little strong, but he’ll do it, right or wrong be damned! Will there be a reign of white terror after this? Probably

          What will I do to prevent this? I’ll volunteer my time and pledge my $ for the blue nominations for president, senator and representative in my district. What else should we do – pack our bags for someplace where they practice tyranny openly unalloyed by hypocrisy and pretension of representative government?

      • jdmckay8 says:

        if he earns election in spite of all of this then he has the right to say the American people rejected these prosecutions.

        Doesn’t exactly make my day, but you are correct. Although in my mind, “the American people” in outcome you describe got to that point in large part because of influence of US right wing media. That media is incessant, unrelenting, and repeats the same corroding lies every-single-day, year after year. Its intoxicating stuff, and ez to get hooked. And they try and “hook” people, not unlike a lot of other addictions.

        Probably doesn’t need saying, but similarities between team Trump’s legal strategy is not much different than how Trump ran his WH, and has mind-boggling similarities to how right wing media works.

        If I didn’t know better, I’d think it was all coordinated. (yes, major snark intended)

        I think America will remain on the precipice until (or if) we as a country decide to reject that stuff once and for all. There’s at least a few successful countries that have laws with teeth that make a lot of this behavior crimes, and those laws have been very effective in drastically reducing this behavior.

        • earlofhuntingdon says:

          No, not correct. The “American people” as a collective occasionally decide political decisions, whom to elect, what policies to approve. It is fundamental to the American and most other systems of justice that they do not decide whom to prosecute or why.

        • SteveBev says:

          Indeed. The Rule of Law is fundamental to democracy, arguably even more fundamental than plebiscites or elections, in that accountability to law is a continuous process. Holding agencies and officials accountable to the public, testing the legality of their actions through the courts is an absolutely critical function. In this regard the Courts and prosecutors, imbued with powers conferred by the constitutional order and laws of the land, act on behalf of the public – and are themselves subject to oversight as provided by law.

          Even hedged with a preamble of disapproval I am shocked by this statement:

          “I don’t like to say it and I’m passionately against it, but if he earns election in spite of all of this then he has the right to say the American people rejected these prosecutions.”

          Trump himself would no doubt “claim this as his right”.

          Populist demagogues, always craft their claims for power glory and impunity in the ‘rights of the people’, while simultaneously undermining the rule of law to avoid impediments on their ambitions.

        • dar_5678 says:

          I think you might be taking Yankee’s words too literally.

          > if he earns election in spite of all of this then he has the right to say the American people rejected these prosecutions

          I interpret this as:

          If Trump legitimately wins reelection, it is weighty evidence that the voting majority (modulo Electoral College distortions) rejected the importance or validity of these prosecutions.

          [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

        • jdmckay8 says:

          I interpret this as:

          If Trump legitimately wins reelection, it is weighty evidence that the voting majority (modulo Electoral College distortions) rejected the importance or validity of these prosecutions.

          Honestly, I don’t see much difference. I interpreted his statement in practical sense: eg. if Trump regains presidency he will:

          a) make all his criminal exposure go away.
          b) make public showcases of going after people he didn’t like so much, just to put the fear in people.
          c) undertake measures to keep him in office well more than 4 years.
          d) flood gov institutions with MAGA’s in authority positions.

          Every thing else in American life will play out in this new environment.

          That, to me, is a very unpleasant possible eventuality.

        • dar_5678 says:

          I feel like we’re agreeing here.

          I don’t want to live under that system. But if it happens, something-like-the-majority of the country does.

        • jdmckay8 says:

          I don’t want to live under that system. But if it happens, something-like-the-majority of the country does.

          Just my opinion, but I have some sympathy for a lot of MAGA’s that believe it all because they’ve been lied to and force fed by right wing media. Most of ’em don’t know it.

          If this country spent half the effort cracking down hard on demonstrable liars-for-personal-gain instead of patting ourselves on the back for superior knowledge of right and wrong and rule of law that does more to protect crooks rights then expose their grifts…

          We’d be riding high. Unfortunately… like really unfortunately, that’s not the case. This thread is a microcosm of the problem, its observable.

          I feel like we’re agreeing here.

          That was my point in saying that. I’m out in my community a lot, doing all kinds of different things. I talk to people all the time, about this stuff but also climate. There’s a lot more people that also agree as we just did, but don’t know what to do about it. I know a lot of folks who think they know, but when its time for action they are nowhere to be found. They love to explain it all though… experts.

          I’ve looked a lot of these people in they eye during these conversations, and I don’t see anything else but what they tell me: they don’t know what to do. Fairly frequent here as well, Marcy writes about one of the more troubling things going on out there, and commentors (usually names I don’t recognize) often say: “what do we do about it?”.

          Usually there’s no response. The same question, the million $$ one AFAIC, dies a quiet death. Its a sign of the times.

          I made mention

          [Moderator’s note: this comment appears to be incomplete; it’s also 293 words long, approaching the recommended limit. Concision is your friend. /~Rayne]

        • theartistvvv says:

          “… rule of law that does more to protect crooks rights then expose their grifts…”

          More crap.

        • jdmckay8 says:

          No, not correct.

          You didn’t say what was not correct.

          Regardless Early, I beg to differ. Critical mass of public opinion moves things… everywhere. Seeing it w/anti-abortion backlash, hopefully time is getting closer for something meaningful w/guns (after Maine), and now with Trump and all these prosecutions an awful lot that a lot of bad people (Big Lie propagandists) are in a horse race to bury it again, or go to jail for it.

          It is clear, just from J6 trials, Trump and his echo chamber motivated most of those people, and defense of this is propagated every-single-day through right wing media. Most of their target audience does not know they’ve been lied to. Being the optimist I am, I wager a significant majority of those brainwashed audience could handle the reckoning, if they were presented convincing evidence. And there is a lot of that.

          You made assumptions I did not say, Earl.

        • earlofhuntingdon says:

          I spoke to exactly what was not correct. The “American people,” the “great and observant public,” in Holmes’s derisive coinage, do not decide whom to prosecute or why.

          Their purported rejection of Trump’s prosecutions, defined as electing him “anyway,” does not establish its rejection of those prosecutions, nor is it relevant to any functioning criminal justice system in a democratic society.

        • jdmckay8 says:

          I spoke to exactly what was not correct. The “American people,” the “great and observant public,” in Holmes’s derisive coinage, do not decide whom to prosecute or why.

          Take a deep breath please.

          I said nothing about the public deciding *who* to prosecute. Rather I made mention of laws in other countries determining *what* to prosecute. With what I am familiar, the public(s) support those laws, and have been satisfied with their execution.

          So, with all due respect, I did not say/imply/think what you said I did.

        • jdmckay8 says:

          And I should ad, much of this mess Marcy writes about just since J6, would not get past obscure germination phase in isolation.

          Given how powerful the US still is, and despite plenty of warts has been a beacon to the world for democracy, now having gone almost 3 years with +/- 1/2 the voting public believing the Big Lie and being consumed by it… I can’t imagine how people of good will think this is just fine, good enough.

        • jdmckay8 says:

          Actually bmaz, that is a *conversation* I would love love love to have. If you ever put away your flame thrower and very unnecessary condescension, I’d be all for it.

          A *conversation*.

          There would be no point, however, w/out participants being in agreement that things just aren’t working too good right now. To pretend the law is the beginning and end of just what justice is… like the law is a divine wand w/out which nothing else really matters…

          No thanks. I’d rather pound sand.

        • earlofhuntingdon says:

          Here is what you and Yankee in TX said:

          if he earns election in spite of all of this then he has the right to say the American people rejected these prosecutions.

          “Doesn’t exactly make my day, but you are correct.”

          But it started with the notion that Trump might “earn” a win in 2024. Helluva gimme. He’ll declare it any way. Regardless, he will not have the right to use that framing, notwithstanding that he will use it anyway.

        • iamevets says:

          He could win election and lose by 15 million votes. And he can say whatever he wants, as he usually does. But unless he wins the popular vote, then winning the absurd and racist electoral college game that we play does not give him any “right” to say “the people rejected these prosecutions”. I agree with bmaz and earl – complete shit and a dishonest statement within itself.

        • SteveBev says:

          And apart from the electoral college/popular vote point the result of a plebiscite gives NEITHER candidate any right to claim anything about the legitimacy and propriety of any prosecution.

          I don’t think anyone would claim that Biden could assert that his victory was a vindication for the DOJ.

          So the fact that we have had this conversation at all shows the extent to which Trumpian thinking permeates and distorts proper discourse.

        • jdmckay8 says:

          But it started with the notion that Trump might “earn” a win in 2024.

          Close: rather Trump might earn the right to gloat. Fair enough, if you want to split hairs.

          I take it as a given he’ll do that, earned or otherwise attained. I also think its really naive to think he won’t do that. Myself and a lot of others are have a very uneasy sense of what that may be like, because we’ve been living in a similar environment since at least 1/6. Nicole Wallace has been speaking to this almost every day since the GOP speaker saga began.

          If you want to parse “earned”, fine. But its a long way from there, to somehow saying like it was fact…

          The “American people,” the “great and observant public,” in Holmes’s derisive coinage, do not decide whom to prosecute or why.”

          Fine, eloquent. Has nothing to do with anything I said, however. Nothing. It is very useful, in so many ways, to admit a mistake in life. If you want to dig in on this one, it is your choice.

      • Alan Charbonneau says:

        Your arguenent is the kind of drivel I’d expect from a 12-year-old: “All you have to do is X, Y, and Z and you’ll be home free. What could go wrong?”.

        Did you read this in a Twitter post?

    • Leu2500 says:

      Re court of appeals & SCOTUS

      If they were to decide in Trump’s favor, their decisions won’t be limited to just him. They would apply to other presidents – including Democrats! – &/or other defendants.

      That should temper their decisions.

      As it already did in the MAL documents case. Part of the reason the 11 CCA didn’t quash the search warrant & its products b4 indictment was because it would apply to all other defendants.

      [**Moderator’s note: This comment should not have cleared for publication. This user has been Blacklisted for ignoring +4 moderator requests to change their name. Do not clear to publish unless they change their name. /~Rayne **]

      • gruntfuttock says:

        ‘They would apply to other presidents – including Democrats! – …’

        In a sane and reasonable world, yes, but, in MAGA/QAnon world, there won’t be any more Democratic presidents. That’s the whole point! I mean, we can’t let the world be at the mercy of those baby-blood-sucking-satanists, can we? ;-)

        (Sorry, my inner snark just had to burst out there.)

    • Peterr says:

      “The misrepresentation of the allegations ought to be central to the disposition and denial of the motions.”

      And sanctions against the lawyers.

      If judges start pulling out the actual sources, reading back to the offending lawyers what they misleadingly cited, and slapped a hefty sanction on them in front of their clients, that might go a long way to put a stop to this kind of thing.

      I don’t know if this is possible under the available protocols for sanctioning a lawyer, but tossing him/her off the case with a “no lawyer lies to me in my court like this – you’re out of here” on the way out the door could be effective in getting the attention of lawyers even considering doing this again.

      • RipNoLonger says:

        Maybe this has been addressed before, but if a lawyer is thrown out of court (or sanctioned so severely that s/he can’t represent the client), does that give the client room to plead that it doesn’t have fair representation? Is this just another way to tie the legal system into knots and delay prosecution?

        • earlofhuntingdon says:

          It means that, if other competent counsel are not already engaged, meaning the process can continue, the process halts while the defendant finds new a new lawyer.

          Trump has several lawyers on each case. I don’t see any of these judges giving him a lot of time, should one of them need to be replaced.

    • says:

      Since this hasn’t really been tested in criminal cases, I do NOT share the pessimism that a) a criminal defendant claiming absolute immunity will automatically be granted a right to interlocutory appeal, and b) stayed proceedings would result. Civil defendants with colorable immunity claims are immune from suit altogether. Criminal defendants also have rights, but after being criminally indicted by a Grand Jury based on probable cause, society’s right to public safety must be weighed alongside any criminal defendant’s immunity claim.

      I’m sure some smart law professor has already eloquently opined on this, but I think the DOJ prosecutors could argue the Abstention Doctrine offers guidance here, and analogous rule application would suggest interlocutory appeals are allowable only if the criminal defendant meets one of three Younger-type exceptions; and then, proceedings stayed, that is, the criminal trial delayed, only if the interest in public safety is outweighed.

      Perhaps my view is naive? misinformed? My apologies, if so.

  3. earlofhuntingdon says:

    I see Trump’s not mentioning the mob as a tell that he intends to use his mob repeatedly, especially as his trials and the election draw nearer. He will not peacefully take another No for an answer in November 2024, nor will much of his party and many of his followers. His protests that his words and deeds have nothing to do with the violence caused by other people, to the contrary.

  4. Zirczirc says:

    “Trump shows no signs of any plan to try to win his Federal criminal trials.” How much involvement does Trump have in his legal defense? To my eyes he plainly is incapable of mounting any kind of legal defense for himself and probably couldn’t contribute to any arguments someone else is making in his stead. That said, I presume his lawyers are more than capable and that some do have plans “to try to win his Federal criminal trials.” Moreover, I also presume that capable lawyers could find numerous ways to pick at and undermine what seems like a very good prosecution case to me, a non-lawyer.

    Even Trump deserves a vigorous and painstaking defense. But you are suggesting he’s not getting one. I have believed for some time that one of Trump’s great superpowers is to draw reputable people into his orbit and then have them trash their own reputations in his service. Maybe that’s what’s going on here, but I would still expect more effort by his defense team to tick of more of the boxes you say are blank.

    • earlofhuntingdon says:

      I think this pattern of miscitation of case law demonstrates how little legal support there is for Trump’s arguments. Rather than address that weakness directly – and typical of his approach to the life in general – Trump ignores it. Trump’s lawyers may do it in the frail hope that opposing counsel and the courts won’t call them on it, avoiding a direct, contrary ruling on the points they hope to make at the Circuit and Supreme Courts. Another indication of how weak their arguments are.

      I agree with Marcy: Trump just wants to keep the balls in the air until he wins in 2024, a victory he will proclaim regardless of the vote count.

    • Spencer Dawkins says:

      Frankly, I’m shooting in the dark here, but you raise important questions. My best guesses …

      Trump’s attention is on fundraising (60%), complaining about being treated unfairly (30%), and possibly golf (10%). If he is involved in his own legal defense, and I think he is, he’s making sure that his motions, and especially the judges’ response to those motions, can be used in fundraising appeals. So, the more motions he files, the more material he has for fundraising appeals.

      Because his Tweets and speeches no longer generate the constant public attention he had as a 2016 candidate and as a sitting president, he is using these motions as a vehicle for his grievances. Maybe no one notices most of what he says on Truth Social, but everyone is covering his trial, including including the back-and-forth on his motions, and his press conferences in the hallway.

      I can’t imagine that he turns all of his legal defense over to his lawyers. At a minimum, I imagine he reviews everything his lawyers file, making sure that it repeats his lies and grievances, and if it doesn’t, he demands that the lawyers change it. So the result is what we see.

      I honestly don’t understand why his lawyers are willing to put up with the situation, and maybe I don’t want to understand that.

      • dar_5678 says:

        > At a minimum, I imagine he reviews everything his lawyers file

        Trump, famously, does not read anything in paragraph form.

        Perhaps his lawyers narrate important sections to him, and he asks for more dramatic adjectives, but that’s about all I can imagine.

        • P J Evans says:

          I suspect he tells his lawyer what he wants them to say, and they have to come up with some way to argue it, even if it’s a poor argument.

        • theartistvvv says:

          Kind of reminds me of Cohen’s testimony about how a valuation was set, and then he and Weisselberg had to figure out how to reach it.

    • Jordan Orlando says:

      I think this is just a term of art in legal discussions: we look at the motions filed or the arguments presented in court in terms of advocacy, so we write “Trump” (just meaning, his side; his defense; his argument) rather than delineating the specific participants each time. It makes legal sense because the distinction between “client” and “client’s lawyers” doesn’t mean much in most legal contexts; it’s the same thing (unless there’s a specific issue of tainted or inadequate representation).

      This isn’t to say that there isn’t something to be gained, obviously, from specifying who specifically framed or wrote whichever argument. But in general, whether it’s Trump or O. J. Simpson or anyone else, the client and his or her entire legal team is just one entity and is discussed as such.

      (I’m not a lawyer.)

      • Zirczirc says:

        I get that, but presumably the Team would try to win, and the lawyers know how to undermine prosecution tactics. EW’s analysis, which I trust, suggests they’re not trying.

  5. Rwood0808 says:

    “Trump shows no signs of any plan to try to win his Federal criminal trials.”

    This shows evidence of guilt and the reason for him prioritizing his psyops campaign over everything else. Winning the presidency is his only way out.

    Since he knows he is guilty he also knows that he will most likely lose one or all of the cases against him. If he loses the campaign for presidency that equals consequences he has to have considered. If he has considered those consequences then he most likely has a contingency plan for when/if they happen.

    At one point does trump the loser become a flight risk?

    • bmaz says:

      No, it most certainly does not show “evidence of guilt”.

      Where do you come up with that shit? Please do not lie to and misinform people here.

      “Since he knows he is guilty he also knows that he will most likely lose one or all of the cases against him.”

      Again, this is manufactured in your mind horseshit. Do NOT do that here, else we will revisit your status.

      And, no, Trump is not a “flight risk”. Stop.

  6. Sean Sullivan says:

    “Again, even if this goes to trial in May as currently scheduled, …”

    This DC case is set for March 2024, no?

  7. earthworm says:

    “until he wins in 2024″…

    i cant believe i am reading so many different versions of this claim, here at emptywheel.
    trump did not win the last election.
    absent actual serious election fraud, he is unlikely to win the next one.
    he is not a winner. much of his “support” is from bot farms.
    why is trump’s becoming president stated in such terms of certitude by commenters here?

    • P J Evans says:

      He’s convinced a lot of people that he did win in 2020, and that he was prevented from his rightful seat in the WH. He convinced a lot of people to show up and try to prevent Congress from its role in affirming the electoral college vote – and he tried to have that vote overthrown by Congress. Damned right we’re afraid: he’s going to try it again, and this time he might get what he wants.

    • ButteredToast says:

      My reading is that the various “until he wins in 2024” phrases or equivalent are referencing Trump’s thinking and how it affects his legal “strategy,” not the writers’ own views of what’s likely to happen.

    • jdmckay8 says:

      I, for one, don’t have “certitude” about that. But I do hold it as a very real possibility. There’s just too much going on out there working for another Trump presidency. Latest signpost along the way that speaks to me: after all these weeks of dysfunction w/out a SOH, first thing they did after electing Johnson was declare (literally) the 2020 election was stolen. AFAIC that needs no further explanation.

    • Cargill2 says:

      The phrase “until he resumes the Presidency” is not a statement of pessimistic certainty, it’s just a literary device to channel Trump’s thinking and strategy.

      What is astonishing is that a failed twice-impeached corrupt ex-president, facing 91 evidence-heavy charges in four courts, could even be considered a reasonable candidate, let alone a leading one.

      Presumably the 50%+ of voters who support Trump believe (a) he was a great president, and (b) the charges against him are either trumped-up persecution, or even a badge of honour.

      And people are concerned about Joe Bidens age, and his physical / mental capacity to serve effectively until January 2029, and he is not polling well. Trump is a slobby, obese, inarticulate blob – but he doesn’t look frail-aged. And Democrats have to fight against an ocean of right-wing media.

      • Rayne says:

        Your Aussie understanding of the US political system shows in this “50%+ of voters who support Trump” bit.

        Trump lost the popular vote in 2016. See

        Don’t make swags if you can’t get that basic fact straight; current polling about Biden has enough flaws in methodology that it can’t be used to predict an election just over a year from now, just as polling the US public’s sentiment about the economy differs greatly from the statistics showing spending and hiring remain high.

        • Cargill2 says:

          A mere typo (or omission) – of course I meant more than 50% of those who are going to vote Republican, either in the primary cycle or the general election.

          And it is futile to deny that there are concerns (among both Democrats and Independents) about Joe Biden’s capacity to serve until January 2029.

        • Rayne says:

          Yeah, well thanks for amplifying the GOP’s propaganda for them from Australia. It’s not exactly on topic in this thread. *eye roll*

        • earlofhuntingdon says:

          Resistance may be futile, as it might be to point out frailties in a political candidate (but that’s not the way you meant it), because regardless of them, he would be far better than the likely alternative.

  8. dar_5678 says:

    An a non-expert, my sense is that all of this apparent legal sloppiness is:

    a) genuine sloppiness, due haste, no coherent argument, etc
    b) seeding a basis for future appeal and associated delay

    I agree that the most viable strategy is to run the clock and bet on reelection, by means legitimate or otherwise.

    But I would think that the best way to do that is to set things up for future delays, instead of immediate delays that can be addressed in a single turn of filings. Assume that defendant and counsel are not operating in good faith.

    • dar_5678 says:

      Reply to self: This might be where the experts tell me that arguments not made by defense counsel are not the basis for future appeal.

      But perhaps that doesn’t eliminate the time required to consider and dismiss the appeal?

      And of course, regardless of reality, it could be a public argument. Not that those need any basis in truth.

  9. Savage Librarian says:

    In this data intensive, electronic world we live in, with a little imagination and a tiny tweak, we might reconsider this ‘60s song because Trump’s motions are his emotions on paper and pixelated:

    “E-motions, you get me upset
    Why make me remember
    what I wanna forget?”

    “E-motions…give me a break…

    …E-motions please set me free.”

    Brenda Lee – Emotions (1961)

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